United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.M., Appellant

and

DEPARTMENT OF THE ARMY, CORPUS 

CHRISTI ARMY DEPOT, Corpus Christi, TX, 

Employer

__________________________________________

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Docket No. 20-0143

Issued: October 28, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 23, 2019 appellant filed a timely appeal from a September 16, 2019 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed since the last merit decision, dated February 26, 2015, to the filing of this appeal, pursuant 

to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board lacks jurisdiction over the merits of this case.

ISSUE

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

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

error.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On April 10, 2002 appellant, then a 52-year-old aircraft electrician, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his left shoulder that day when he turned a rotor while 

in the performance of duty. OWCP assigned that claim OWCP File No. xxxxxx643 and accepted 

the claim for a left rotator cuff strain. By decision dated May 17, 2004, it granted appellant a 

schedule award for 15 percent permanent impairment of the left upper extremity due to the left 

upper extremity. 

On January 11, 2005 appellant filed an occupational disease claim (Form CA-2) alleging 

that, on or before December 14, 2014, he sustained bilateral knee conditions due to factors of 

federal employment, including repetitive climbing on and off of aircraft, kneeling, and squatting. 

OWCP assigned that claim OWCP File No. xxxxxx422 and accepted it for aggravation of bilateral 

patellar chondromalacia. On April 18, 2005 appellant underwent authorized arthroscopic repair 

with debridement and excision of a suprapatellar plica on April 18, 2015 and authorized 

arthroscopic debridement of the right knee on May 27, 2005.2 OWCP subsequently expanded its 

acceptance of the claim to include lateral meniscal derangement, bilaterally; bilateral 

osteoarthritis; and bilateral traumatic arthropathy of the lower extremities. 

On July 18, 2005 appellant filed an occupational disease claim (Form CA-2) alleging a 

right rotator cuff tear due to factors of his federal employment. OWCP assigned that claim OWCP 

File No. xxxxxx325 and, on September 14, 2005 accepted it for right rotator cuff syndrome and 

degenerative changes of the acromioclavicular joint. On October 24, 2005 appellant underwent 

authorized arthroscopic right rotator cuff repair and subacromial decompression. 

On January 9, 2007 appellant filed another occupational disease claim (Form CA-2) 

alleging that he sustained bilateral carpal tunnel syndrome and a cervical disc condition causing 

double crush syndrome due to factors of his federal employment. OWCP assigned that claim 

OWCP File No. xxxxxx185 and accepted it for bilateral carpal tunnel syndrome and a cervical 

spine sprain with intervertebral disc involvement. 

On April 12, 2007 OWCP administratively combined OWCP File Nos. xxxxxx325, 

xxxxxx422, xxxxxx185, and xxxxxx643, with the latter serving as the master file. 

On June 11, 2007 appellant underwent an authorized anterior cervical discectomy and 

fusion of C5 to C7. On September 14, 2007 he underwent an authorized left carpal tunnel release. 

Appellant returned to full-time, regular-duty work on November 13, 2007. 

OWCP subsequently received medical evidence, including a July 18, 2006 report, wherein

Dr. Robert Q. Lewis, a Board-certified orthopedic surgeon, noted that appellant’s neck and left 

 

2 By decision dated December 12, 2005, OWCP granted appellant a schedule award for five percent permanent 

impairment of the right lower extremity and five percent permanent impairment of the left lower extremity. By 

decision dated July 9, 2014, it granted him a schedule award for an additional 20 percent permanent impairment of 

the left lower extremity. 
3

arm became symptomatic three weeks earlier. In an August 4, 2006 report, Dr. Lewis diagnosed 

left-sided C7 radiculopathy. 

In an April 5, 2007 report, Dr. Mathew T. Alexander, a Board-certified neurosurgeon, 

diagnosed a C6 syrinx secondary to C5-6 and C6-7 disc herniations, causing chronic compression. 

By decision dated February 12, 2009 under OWCP File No. xxxxxx325, OWCP granted 

appellant a schedule award for 15 percent permanent impairment of his right upper extremity. By 

decision dated May 13, 2009 under OWCP File No. xxxxxx185, it granted appellant a schedule 

award for an additional 11 percent permanent impairment of the left upper extremity.3

On December 1, 2011 appellant underwent an authorized left knee arthroscopy with 

removal of loose body. He underwent an authorized total left knee arthroplasty on June 26, 2013. 

On March 20, 2014 under OWCP File No. xxxxxx185, appellant filed a notice of 

recurrence (Form CA-2a) for additional medical treatment commencing March 7, 2014. 

In a development letter dated March 28, 2014, OWCP informed appellant of the 

deficiencies of his recurrence claim. It advised him of the type of additional evidence needed and

afforded him 30 days to provide the necessary evidence. 

In response, appellant submitted a May 13, 2014 statement, noting that he had a chronic,

dull pain problem after cervical fusion, worsened by a subsequent fall. He also provided a May 7, 

2014 report by Dr. John M. Borkowski, a Board-certified orthopedic surgeon specializing in spine 

surgery, who noted that appellant had done well after cervical fusion until he fell a few times and 

subsequently developed severe neck pain and arm numbness.

By decision dated May 20, 2014 under OWCP File No. xxxxxx185, OWCP denied 

appellant’s recurrence claim as the medical evidence of record was insufficient to demonstrate a 

material change in or worsening of the accepted conditions. 

On September 8, 2014 appellant requested reconsideration. In a September 3, 2014 letter, 

he asserted that his cervical spine pain had begun to worsen prior to several falls while recovering 

from the authorized total left knee arthroplasty. Appellant submitted reports from Dr. Borkowski 

dated from July 22 to November 5, 2014 noting a gradual symptomatic increase following cervical 

fusion, with marked symptoms following several falls. He noted evidence of degenerative changes 

above the level of the prior fusion with evidence of a syrinx. Dr. Borkowski opined that it was 

likely appellant had adjacent level disease associated from having a spinal fusion. 

By decision dated February 26, 2015, OWCP denied modification of the May 20, 2014 

decision, as the medical evidence of record was insufficient to establish a spontaneous worsening 

of the accepted conditions. 

 

3 Appellant retired from federal employment effective March 31, 2011.
4

On May 25, 2018 appellant underwent an authorized partial right meniscectomy, and a 

cortisone injection and aspiration of the left knee. 

On May 21, 2019 appellant requested reconsideration of OWCP’s February 26, 2015 

decision. He contended that he had not returned to his date-of-injury job as he had been promoted 

to a work leader position, which no longer required him to repair aircraft. Appellant noted that,

since February 26, 2015, he sustained a myocardial infarction with multiple stent placement, a 

total knee arthroplasty with multiple femoral artery stents, and femoral artery replacement. 

In support of his request, appellant submitted additional medical evidence. A May 2, 2014 

cervical magnetic resonance imaging (MRI) scan demonstrated multilevel disc bulges, 

postoperative changes from C5 to C7, anterior interbody fusion with plate and screws from C5-6 

and C6-7, and a cervical cord syrinx at C6 and C6-7. 

In a May 21, 2014 report, Dr. Michael E. Tschickardt, Board-certified in pain medicine, 

diagnosed cervical post-laminectomy syndrome, lumbosacral spondylosis without myelopathy, 

and cervical stenosis. 

OWCP also received a September 15, 2015 report by Lisa Ruiz, a physician assistant. 

In a September 25, 2017 report, Dr. Davin Cordell, a Board-certified orthopedic surgeon, 

diagnosed cervicalgia, status post cervical fusion, and left-sided cervical radiculopathy. In an 

October 9, 2017 report, he recommended a left C5 nerve block. 

An October 3, 2017 cervical MRI scan demonstrated status post anterior fusion from C5 to 

C7, multilevel diffuse disc bulges C2-3 to C4-5, and a syrinx and/or myelomalacia of the lower 

cervical spinal cord. 

In an October 24, 2017 report, Dr. Gabriel Lopez, Board-certified in pain medicine, 

diagnosed cervical post-laminectomy syndrome, cervical degenerative disc disease, cervical 

radiculopathy, and chronic neck pain. He performed a series of epidural injections through 

October 3, 2018. 

By decision dated September 16, 2019, OWCP denied appellant’s May 21, 2019 request 

for reconsideration of the February 26, 2015 decision, finding that it was untimely filed and failed 

to demonstrate clear evidence of error. 

LEGAL PRECEDENT

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

merit review.4 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.5 Timeliness is determined by the document receipt date (i.e., 

 

4 5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

5 20 C.F.R. § 10.607(a).
5

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).6 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.7

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.8 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.9 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.10

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

issue which was decided by OWCP.11 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 not only be of sufficient probative value to create a conflict 

in medical opinion or establish a clear procedural error, but 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. The Board makes an independent determination as to 

whether a claimant has demonstrated clear evidence of error on the part of OWCP.12

ANALYSIS

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.

 

6 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

7 G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. 

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

8 See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB 

499, 501-02 (1990).

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

also id. at § 10.607(b); supra note 6 at Chapter 2.1602.5 (February 2016).

10 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).

11 S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 6 at Chapter 2.1602.5(a) (February 2016).

12 U.C., Docket No. 19-1753 (issued June 10, 2020).
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OWCP’s regulations13 and procedures14 establish a one-year time limitation for requesting 

reconsideration, which begins on the date of the original OWCP merit decision. A right to 

reconsideration within one year also accompanies any subsequent merit decision on the issues.15 

The most recent merit decision was the February 26, 2015 denial of modification of the May 20, 

2014 decision denying a March 7, 2014 recurrence claim. As appellant’s request for 

reconsideration was not received by OWCP until May 21, 2019, more than one year after the 

February 26, 2015 decision, it was untimely filed.16 Consequently, he must demonstrate clear 

evidence of error by OWCP in denying the recurrence claim.17

In support of his untimely request for reconsideration, appellant argued that the medical 

evidence of record established the claimed worsening of his accepted conditions on March 7, 2014. 

He submitted pain management reports dated from May 21, 2014 to October 24, 2017 by 

Drs. Cordell, Lopez, and Tschickardt, noting cervical disc degeneration and status post cervical 

fusion. Appellant also provided imaging studies of the cervical spine, and a September 15, 2015 

report by a physician assistant. However, these reports do not raise a substantial question 

concerning the correctness of the February 26, 2015 merit decision, which denied his recurrence 

claim. 

The Board has held that the term clear evidence of error is intended to represent a difficult 

standard. The claimant must present evidence that on its face shows that OWCP made an error.18 

Even a detailed, well-rationalized medical report, which would have required further development 

if submitted prior to issuance of the denial decision, does not constitute clear evidence of error.19 

It is not enough to show that evidence could be construed so as to produce a contrary conclusion. 

Instead, the evidence must shift the weight in appellant’s favor.20 The medical reports submitted 

on reconsideration are therefore insufficient to demonstrate clear evidence of error in the 

February 26, 2015 decision, denying his claim for a recurrence commencing March 7, 2014.21 

The Board thus finds that appellant has not raised an argument or submitted positive, 

precise, and explicit evidence that manifests on its face that OWCP committed an error in the 

 

13 F.N., Docket No. 18-1543 (issued March 6, 2019); 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 

247 (2005).

14 Supra note 6 at Chapter 2.1602.4 (February 2016); see L.A., Docket No. 19-0471 (issued October 29, 2019); 

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

15 J.W., supra note 10; Robert F. Stone, 57 ECAB 292 (2005).

16 20 C.F.R. § 10.607(b); see L.A., supra note 14; Debra McDavid, 57 ECAB 149 (2005).

17 Id.; see also R.T., Docket No. 19-0604 (issued September 13, 2019).

18 G.B., Docket No. 19-1762 (issued March 10, 2020).

19 T.C., Docket No. 19-1709 (issued June 5, 2020); E.B., Docket No. 18-1091 (issued December 28, 2018); D.G., 

59 ECAB 455 (2008); L.L., Docket No. 13-1624 (issued December 5, 2013).

20 T.C., id., E.B., id.; M.N., Docket No. 15-0758 (issued July 6, 2015).

21 Id.
7

denial of his claim. Appellant has therefore not provided evidence of sufficient probative value to 

raise a substantial question as to the correctness of OWCP’s February 26, 2015 decision.22 Thus, 

the Board finds that the untimely request for reconsideration fails to demonstrate clear evidence of 

error.23

On appeal, appellant’s contention pertains to the merits of appellant’s claim, which as noted 

above are not before the Board on the present appeal. 

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.

ORDER

IT IS HEREBY ORDERED THAT the September 16, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 28, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees' Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees' Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees' Compensation Appeals Board

 

22 See J.V., Docket No. 18-0963 (issued February 13, 2020); S.P., Docket No. 17-1708 (issued February 23, 2018).

23 See J.D., Docket No. 18-1765 (issued June 11, 2019).