United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Baton Rouge, LA, Employer

__________________________________________

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Docket No. 20-1596

Issued: August 12, 2021

Appearances: Case Submitted on the Record

Michael E. Woods, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 10, 2020 appellant, through her representative, filed a timely appeal from 

an August 27, 2020 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days has elapsed from OWCP’s last merit decision, dated May 7, 

2007, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2(FECA) 

and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

FACTUAL HISTORY

On January 8, 1990 appellant, then a 30-year-old distribution clerk, filed an occupational 

disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome due to 

factors of her federal employment, including sorting mail, lifting stapling, and using a keyboard. 

OWCP accepted the claim for bilateral carpal tunnel syndrome. It later expanded acceptance of 

the claim to include right fracture of carpal bones, right knee dislocation, right knee medial 

meniscus tear, and right ankle sprain. OWCP paid appellant wage-loss compensation on the 

supplemental rolls from January 29, 1990 through November 16, 1991, and on the periodic rolls, 

commencing November 17, 1991. 

In an October 8, 2003 report, Dr. Warren Williams, a Board-certified neurosurgeon, opined 

that appellant was not capable of returning to work in any capacity. He noted that she had 

limitations with regard to sitting, walking, standing, reaching, reaching above her shoulders, 

twisting, bending, stooping, and operating a motor vehicle. Dr. Williams indicated that appellant 

could not drive for more than 15 minutes at one time. He advised that she suffered from many 

conditions and was taking more than 30 medications daily.

On April 19, 2004 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), for a second opinion examination with Dr. Christopher Cenac, a Board-certified 

orthopedic surgeon. In a June 14, 2004 report, Dr. Cenac noted his review of the medical record 

and SOAF. He provided physical examination findings and performed x-rays of appellant’s right 

ankle, right hand, right knee, and left wrist. Dr. Cenac opined that appellant had reached maximum 

medical improvement (MMI) and had no ongoing residuals for all of her employment-related 

injuries. He found that appellant could perform sedentary work and was employable as an 

information clerk, telemarketer, and retail sales person.

On August 11, 2004 OWCP determined that a conflict in the medical opinion evidence 

existed between Dr. Williams, appellant’s treating physician, and Dr. Cenac, the second opinion 

physician, regarding appellant’s work capabilities. It referred appellant’s case, along with a SOAF,

to Dr. Robert Ruel, a Board-certified orthopedic surgeon serving as the impartial medical examiner 

(IME).

In a November 3, 2004 report, Dr. Ruel noted his review of the medical record and SOAF. 

He recounted appellant’s history of injury and provided physical examination findings. Dr. Ruel 

found that appellant had diminished sensation in her right hand. He opined that appellant was at 

MMI for both wrists and that her osteoporosis and arthritic changes were due to her degenerative 

arthritis and not her employment factors. Dr. Ruel further found that appellant was at MMI for 

her right knee, right wrist, and right tibial plateau and did not require further treatment related to 

her conditions. He opined that appellant was capable of working four hours per day, five days per 
3

week. In an accompanying work capacity evaluation (Form OWCP-5c), dated November 4, 2004,

Dr. Ruel outlined appellant’s work restrictions.

On March 15, 2005 the employing establishment offered appellant a modified assignment 

to work a limited-duty position as a mail processing clerk.

In a March 21, 2005 statement, appellant asserted that she was unable to return to work. 

She submitted notes from her treating physicians and diagnostic studies.

In a letter dated April 6, 2005, OWCP advised appellant that the offered position remained 

available. It explained that the modified mail processing clerk position was suitable and in 

accordance with the medical restrictions set forth in Dr. Ruel’s November 4, 2004 report. OWCP 

notified appellant that if she failed to accept the position or to provide adequate reasons for refusing 

the job offer, her right to compensation would be terminated, pursuant to 5 U.S.C. § 8106(c)(2). 

It afforded appellant 30 days to respond.

On May 10, 2005 OWCP advised appellant that it considered the reasons she provided for 

refusing to accept the offered position and did not find them to be valid. It noted that there was no 

medical documentation of record to validate her current condition. OWCP provided appellant an 

additional 15 days to accept and report to the position, and advised that, if she did not report to the 

job within 15 days of the date of the letter, her wage-loss compensation benefits and entitlement

to a schedule award would be terminated. No response was received.

By decision dated May 27, 2005, OWCP terminated appellant’s wage-loss compensation 

benefits and schedule award entitlement, effective May 28, 2005, pursuant to 5 U.S.C. 

§ 8106(c)(2), as she had refused an offer of suitable work. It found that the offered position was 

within the restrictions set forth by Dr. Ruel with whom the special weight of the medical evidence 

rested.

On June 20, 2005 appellant accepted the offer of modified assignment as a limited-duty 

mail processing clerk and returned to work.

On June 24, 2005 appellant, through her representative, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on April 2, 2007. 

During the hearing, appellant testified that despite successfully returning to work, she was not able 

to return to work at the time of the offer of modified assignment. She noted that she suffered from 

seizures, sleep apnea, respiratory conditions, and cardiovascular problems.

Appellant continued to submit medical evidence, including medical reports from her 

treating physicians and neurological and sleep studies.

By decision dated May 7, 2007, OWCP’s hearing representative affirmed the May 27, 

2005 decision.

On February 13, 2019 appellant, through her representative, requested reconsideration. 

Appellant’s representative asserted that OWCP asked the second opinion physician, Dr. Cenac, 

and the IME, Dr. Ruel, leading questions when inquiring as to the etiology of appellant’s bilateral 

upper extremity and right lower extremity conditions. He argued that the opinions of the 
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physicians should have been excluded. Appellant’s representative further contended that OWCP 

did not adequately consider appellant’s depression, post-traumatic stress syndrome, osteoporosis, 

and rheumatoid arthritis when evaluating her modified job offer.

By decision dated February 27, 2019, OWCP denied appellant’s request for 

reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

In a letter dated March 4, 2019, appellant’s representative asserted that OWCP did not 

address his argument that it improperly posed leading questions to Drs. Cenac and Ruel in its 

February 27, 2019 decision. He requested that OWCP make a determination on the issue of 

whether leading questions were asked of the examining physicians.

On May 23, 2020 appellant, through her representative, requested reconsideration of the 

May 27, 2005 decision. Appellant’s representative asserted that Dr. Ruel was improperly selected 

as an IME. He argued that the selection of the IME should be made through a strict rotational 

system using appropriate medical directories and that the Physicians Directory System (PDS) 

should be used. Appellant’s representative contended that upon request, OWCP failed to provide

a bypass history report, Form ME023 (appointment notification report), or any other record that 

showed that it had properly selected Dr. Ruel as an IME. He asserted that Dr. Ruel’s opinion could 

not be afforded the special weight of the medical evidence and, thus, a conflict of medical opinion 

remained between Drs. Williams and Cenac.

In a July 21, 2020 e-mail, appellant’s representative requested a copy of the bypass history 

report and Form ME023 to demonstrate how OWCP selected Dr. Ruel as the IME.

By decision dated August 27, 2020, OWCP denied appellant’s request for reconsideration, 

finding that it was untimely filed and failed to demonstrate clear evidence of error. It noted that 

appellant’s assertion that Dr. Ruel was improperly selected as an IME was made without any 

supportive evidence. OWCP found that mere allegations were insufficient to establish bias and 

that its bypass procedures would be presumed unbiased unless proved otherwise.

LEGAL PRECEDENT

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further 

merit review.3 This discretionary authority, however, is subject to certain restrictions. For 

instance, a request for reconsideration must be received within one year of the date of OWCP’s 

decision for which review is sought.4 Timeliness is determined by the document receipt date of 

the request for reconsideration as indicated by the “received date” in the Integrated Federal 

 

3 5 U.S.C. § 8128(a); C.S., Docket No. 20-1075 (issued December 31, 2020); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

4 20 C.F.R. § 10.607(a).
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Employees’ Compensation System (iFECS).5 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.6

When a request for reconsideration is untimely, OWCP undertakes a limited review to 

determine whether the request demonstrates clear evidence that OWCP’s most recent merit 

decision was in error.7 OWCP’s procedures provide that it will reopen a claimant’s case for merit 

review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the 

claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of 

OWCP.8 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.9

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the 

issue which was decided by OWCP.10 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error. Evidence which does not raise a 

substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate 

clear evidence of error. It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence

submitted with the reconsideration request bears on the evidence previously of record and whether 

the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence 

of error, the evidence submitted must be of sufficient probative value to shift the weight of the 

evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s 

decision.11

OWCP’s procedures note that the term clear evidence of error is intended to represent a 

difficult standard.12 The claimant must present evidence which on its face shows that OWCP made 

an error. Evidence such as a detailed, well-rationalized medical report which, if submitted before 

the denial was issued, would have created a conflict in medical opinion requiring further 

development, is insufficient to demonstrate clear evidence of error.13 The Board makes an 

 

5 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2020).

6

J.J., Docket No. 19-0977 (issued December 31, 2020); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. 

Faidley, Jr., 41 ECAB 104 (1989).

7 See 20 C.F.R. § 10.607(b); W.J., Docket No. 20-0489 (issued December 21, 2020); M.H., Docket No. 18-0623 

(issued October 4, 2018); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

8 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See 

also 20 C.F.R. § 10.607(b); supra note 5 at Chapter 2.1602.5 (February 2016).

9

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018); 

Robert G. Burns, 57 ECAB 657 (2006).

10 S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 5 at Chapter 2.1602.5(a) (February 2020).

11 C.M., Docket No. 19-1211 (issued August 5, 2020).

12 Supra note 5 at Chapter 2.1602.4(b) (February 2020).

13 J.J., supra note 6.
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independent determination of whether a claimant has demonstrated clear evidence of error on the 

part of OWCP.14

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration as it 

was untimely filed and failed to demonstrate clear evidence of error.

OWCP received appellant’s request for reconsideration on May 23, 2020, more than one 

year after the date of the last merit decision dated May 7, 2007. Appellant’s request was, therefore,

untimely filed. Consequently, she must demonstrate clear evidence of error on the part of 

OWCP.

15

On reconsideration appellant’s representative contended that OWCP failed to document

that it had properly selected Dr. Ruel as an IME. However, the Board finds that appellant’s 

representative has raised only a possibility of an improper selection of Dr. Ruel. In order to 

establish clear evidence of error, the evidence in question must be positive, precise, and explicit 

and must manifest on its face that OWCP committed an error. However, appellant’s representative 

has failed to provide evidence to support the allegations of clear evidence of error regarding the 

selection of Dr. Ruel. 

Accordingly, the Board finds that OWCP properly denied appellant’s reconsideration

request as it was untimely filed and failed to demonstrate clear evidence of error.

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration, 

finding that it was untimely filed and failed to demonstrate clear evidence of error.

 

14 Id.

15 20 C.F.R. § 10.607(b); J.J., supra note 6.
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ORDER

IT IS HEREBY ORDERED THAT the August 27, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 12, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board