United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

Y.B., Appellant

and

U.S. POSTAL SERVICE, CHURCH STREET 

STATION, New York, NY, Employer

__________________________________________

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Docket No. 21-0092

Issued: October 15, 2021

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 21, 2020 appellant, through counsel, timely filed an appeal from an August 24, 

2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision dated March 13, 2018, to the filing of this 

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

appeal, pursuant to the Federal Employees’Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) 

and 501.3, the Board lacks jurisdiction to review the merits of appellant’s case.

3

ISSUE

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

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

FACTUAL HISTORY

On December 8, 2016 appellant, then a 46-year-old city carrier parcel post, filed a traumatic 

injury claim (Form CA-l) alleging that on that date she sustained a left shoulder, left pelvic bone, 

left hand, and right knee injuries when she slipped and fell while in the performance of duty. She

stopped work on December 8, 2016 and has not returned.

Following initial development of the claim, OWCP denied the claim by decision dated 

February 9, 2017, finding that the medical evidence of record was insufficient to establish a firm 

diagnosis causally related to the accepted employment incident.

Appellant requested reconsideration on December 18, 2017. By decision dated March 13, 

2018, OWCP denied modification.

OWCP continued to receive medical evidence. 

In a March 23, 2018 note, Dr. Amin Tehrany, a Board-certified orthopedic surgeon, placed 

appellant out of work until further notice, secondary to surgery on February 23, 2018.

In reports dated May 30 and June 1, 2018, Dr. Billy Ford, a Board-certified 

anesthesiologist, diagnosed cervical sprain, herniated cervical intervertebral disc, lumbar spine 

strain, herniated lumbar intervertebral disc, cervical radiculopathy, lumbar radiculopath y, and 

lumbar facet syndrome. In August 3, 2018 reports, he noted that appellant received a lumbar 

epidural steroid injection and intraoperative lumbar epidurography.

In reports dated May 31, 2018, and March 19 and April 30, 2019, Dr. Demetrios Mikelis, 

an internist, noted that appellant was seen for complaints of back pain and lower neck pain. He 

diagnosed herniated cervical intervertebral disc, cervical nerve root impingement, herniated 

lumbar intervertebral disc, and bilateral lumbosacral nerve root lesions. Dr. Mikelis requested 

authorization for spinal fusion and laminectomy at level L4-5. He saw appellant on July 11 and 

2

5 U.S.C. § 8101 et seq.

3 The Board notes that OWCP received additional evidence following the August24, 2020 decision. However, the 

Board’s Rules of Procedureprovides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
3

November 12, 2019 and advised that appellant was status post-spinal fusion and laminectomy and 

anterior lumbar interbody fusion at L4-5.

Dr. Sebastian Lattuga, a Board-certified orthopedic surgeon, in a February 4, 2019 report, 

noted that appellant was seen for complaints of back pain and lower neck pain. He diagnosed 

herniated cervical intervertebral disc, cervical nerve root impingement, herniated lumbar

intervertebral disc, and bilateral lumbosacral nerve root lesions. In a June 3, 2019 treatment note,

Dr. Lattuga diagnosed status anterior cervical discectomy and fusion and post-posterior spinal 

fusion and laminectomy, and recommended physical therapy and chiropractic treatment.

OWCP received chiropractic reports from October 6, 2017 to August 21, 2019.

OWCP also received a February 4, 2019 report from a physician assistant, physical therapy

reports dating from December 8, 2016 to August 23, 2019, and a copy of a notice of grievance

from appellant to the employing establishment.

On September 5, 2019 appellant, through counsel, requested reconsideration. Counsel

argued that appellant’s claim originally was denied as she had not established fact of injury and

was subsequently denied as she had not established causal relationship. He argued that she had

submitted sufficient medical evidence to establish that she sustained a severe injury to several parts

of her body and that it was clear error to deny the claim or to fail to further develop the evidence

by sending appellant and her medical record for a second opinion examination.

By decision dated September 10, 2019, OWCP denied appellant’s request for

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

It explained that she failed to present a clear argument or evidence in support of an error committed 

by OWCP. OWCP did not address the medical evidence.

On November 4, 2019 appellant, through counsel, filed a timely appeal from the 

September 10, 2019 decision. By order dated July 7, 2020, the Board found that the case was not 

in posture for decision because OWCP failed to make findings regarding the evidence submitted

in support of the reconsideration request. The Board remanded the case to OWCP to consider all 

the evidence submitted at the time of the September 10, 2019 decision, to be followed by an 

appropriate decision on whether appellant demonstrated clear evidence of error.4

By decision dated August 24, 2020, OWCP noted that all of the evidence received at the 

time of the September 19, 2019 decision was considered. It denied appellant’s reconsideration 

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

LEGAL PRECEDENT

To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a 

request for reconsideration must be received by OWCP within one year of the date of OWCP’s 

4 Docket No. 20-0205 (issued July 7, 2020).
4

decision for which review is sought.5 Timeliness is determined by the document receipt date of 

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

Employees’ Compensation System (iFECS).6 The Board has found that the imposition of the oneyear time limitation does not constitute an abuse of the discretionary authority granted OWCP 

under section 8128(a) of FECA.7

OWCP may not deny a request for reconsideration solely because it was untimely filed. 

When a request for reconsideration is untimely filed, it must nevertheless undertake a limited 

review to determine whether the request demonstrates clear evidence of error. 8 OWCP’s 

regulations and procedures provide that OWCP will reopen a claimant’s case for merit review, 

notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s 

request demonstrates clear evidence of error on the part of OWCP.9

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

issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest 

on its face that OWCP committed an error.10 It is not enough merely to show that the evidence 

could be construed so as to produce a contrary conclusion. 11 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 evidence of error on the 

part of OWCP.12 The Board makes an independent determination of whether a claimant has 

demonstrated clear evidence of error on the part of OWCP such that it abused its discretion in 

denying merit review in the face of such evidence.13

OWCP’s procedures further provide that the term clear evidence of error is intended to 

represent a difficult standard.14 The claimant must present evidence that on its face shows that 

OWCP made an error (for example, proof that a schedule award was miscalculated). Evidence 

such as a detailed, well-rationalized medical report that, if submitted before the denial was issued, 

5

20 C.F.R. § 10.607(a).

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

7

See W.B., Docket No. 20-1197 (issued February 3, 2021); G.L., Docket No. 18-0852 (issued January 14, 2020).

8

20 C.F.R. § 10.607(b); R.S., Docket No. 19-0180 (issued December 5, 2019).

9

Id.; supra note 6 at Chapter 2.1602.5(a).

10 20 C.F.R. § 10.607(b); B.W., Docket No. 19-0626 (issued March 4, 2020); Fidel E. Perez, 48 ECAB 663, 

665 (1997).

11 See G.B., Docket No. 19-1762 (issued March 10, 2020); LeonaN. Travis, 43 ECAB 227, 240 (1991).

12 B.W., supra note 10.

13 Id.; Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993).

14 Supra note 6 at Chapter 2.1602.5(b).
5

would have created a conflict in medical opinion requiring further development, is not clear 

evidence of error.15

ANALYSIS

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

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

OWCP’s procedures provide that a request for reconsideration must be received within one 

year of the date of OWCP’s decisions for which review is sought.16 The last merit decision was 

dated March 13, 2018. Appellant had one year from the date of that decision, i.e., March 13, 2019,

to request reconsideration. As the request for reconsideration was not received by OWCP until

September 5, 2019, more than one year after the issuance of the March 13, 2018 decision, it was 

untimely filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in its 

March 13, 2018 decision.

17

Following the March 13, 2018 decision, appellant submitted a March 23, 2018 note from

Dr. Tehrany and reports dated May 30, June 1, and August 3, 2018 from Dr. Ford who diagnosed

cervical sprain, herniated cervical intervertebral disc, lumbar spine strain, herniated lumbar 

intervertebral disc, cervical radiculopathy, lumbar radiculopathy, and lumbar facet syndrome, and 

noted that appellant received a lumbar epidural steroid injection and intraoperative lumbar 

epidurography.

Additionally, OWCP received reports dated May 31, 2018, March 19, April 30, July 11,

and November 12, 2019 from Dr. Mikelis, who diagnosed herniated cervical intervertebral disc,

cervical nerve root impingement, herniated lumbar intervertebral disc, and bilateral lumbosacral 

nerve root lesions. Dr. Mikelis requested authorization for spinal fusion and laminectomy at level 

L4-5 and treated appellant following the procedure. Dr. Lattuga also saw appellant on February 4 

and June 3, 2019, diagnosed herniated cervical intervertebral disc, cervical nerve root 

impingement, herniated lumbar intervertebral disc, bilateral lumbosacral nerve root lesions, status 

anterior cervical discectomy and fusion and post posterior spinal fusion and laminectomy, and 

recommended physical therapy and chiropractic treatment.

None of these medical reports provided an opinion on causal relationship. Therefore, this 

evidence is insufficient to shift the weight of the evidence and raise a substantial question as to the

correctness of OWCP’s decision that she failed to demonstrate causal relationship between her 

medical conditions and the accepted employment incident.

18

15 G.B., supra note 11; A.R., Docket No. 15-1598 (issued December 7, 2015).

16 20 C.F.R. § 10.607(b).

17 Id.; see R.T., Docket No. 19-0604 (issued September 13, 2019); Debra McDavid, 57 ECAB 149 (2005).

18 See T.T., Docket No. 19-1624 (issued October 28, 2020); S.C., Docket No. 18-0126 (issued May14, 2016);

Federal (FECA) Procedure Manual, Part 2 --Claims, Reconsiderations, Chapter 2.1602.5(a) (February 2016).
6

OWCP also received chiropractic reports from October 6, 2017 to August 21, 2019, a 

February 4, 2019 report from a physician assistant, and physical therapy reports dating from 

December 8, 2016 to August 23, 2019. The Board has held that reports from a chiropractor, 

physician assistant, and physical therapist are of no probative value as they do not constitute 

competent medical evidence.

19

 Consequently, these reports are insufficient to demonstrate clear 

evidence of error by OWCP with respect to the underlying medical issue.

Appellant submitted a copy of a grievance; however, it is of limited probative value as the 

issue is medical in nature and, therefore, it does not shift the weight of the evidence or raise a 

substantial question as to the correctness of OWCP’s decision.

As noted, the term clear evidence of error is a difficult standard and it is not enough to 

show that the evidence could be construed to produce a contrary conclusion.20 None of the 

evidence submitted by appellant in connection with her untimely reconsideration request manifests 

on its face that OWCP committed an error in denying her traumatic injury claim. Appellant has 

not submitted evidence of sufficient probative value to raise a substantial question as to the 

correctness of OWCP’s decision that she failed to demonstrate causal relationship between her 

medical conditions and the accepted employment incident.

21

 Accordingly, the Board finds that 

OWCP properly denied appellant’s reconsideration request, finding that it was untimely filed and 

failed to demonstrate clear evidence of error.

22

CONCLUSION

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

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

19 See B.R., Docket No. 19-0088 (issued August 13, 2019); Ricky S. Storms, 52 ECAB 349 (2001). Section 

8101(2) of FECA provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law. 

5 U.S.C. § 8101(2). Furthermore, under section 8101(2) of FECA, the term physician includes chiropractors only to 

the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine to 

correct a subluxation as demonstrated by x-ray to exist and subject to regulation by the Secretary. See also Federal 

(FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013); DavidP. 

Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists 

are not competent to render a medical opinion under FECA); R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse 

practitioners and physical therapists are not considered physicians under FECA); D.S., Docket No. 09-0860 (issued 

November 2, 2009).

20 See M.H., Docket No. 20-1386 (issued February 17, 2021); E.B., Docket No. 18-1091 (issued 

December 28, 2018).

21 See M.P., Docket No. 19-0200 (issued June14, 2019); E.B., id.

22 See E.G., Docket No. 20-0974 (issued February 26, 2021); G.B., supranote 11; M.P., Docket No. 19-0674 (issued 

December 16, 2019).
7

ORDER

IT IS HEREBY ORDERED THAT the August 24, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 15, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board