United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.C., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Decatur, GA, Employer

__________________________________________

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Docket No. 18-1730

Issued: July 23, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, JUDGE

JURISDICTION

On September 16, 2018 appellant filed a timely appeal from a May 18, 2018 merit decision 

and August 28, 2018 nonmerit decision1 of the Office of Workers’ Compensation Programs

 

1 Appellant submitted additional evidence following the May 18, 2018 decision. However, “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 evidence for the first time on appeal. Id.
2

(OWCP).2 Pursuant to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.4

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish more than 

two percent permanent impairment of her right lower extremity and more than 13 percent 

permanent impairment of her right upper extremity, for which she previously received schedule 

award compensation; and (2) whether OWCP properly denied appellant’s request for 

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

FACTUAL HISTORY

On June 6, 2013 appellant, then a 43-year-old practical nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on June 5, 2013 she sustained injury to her right arm/shoulder when she 

fell and hit her right side on the floor while in the performance of duty. She stopped work for 

intermittent periods after June 5, 2013. OWCP initially accepted appellant’s claim for 

enthesopathy of her right hip, disorder of the bursae/tendons of her right shoulder, and thoracic or 

lumbosacral neuritis/radiculitis. It paid her wage-loss compensation on the daily rolls commencing 

August 6, 2013.

Medical records from appellant’s initial visit to the employing establishment’s health unit 

on June 6, 2013, and her follow-up visits during the subsequent several months, show that she 

primarily complained of pain in her right shoulder, forearm, hip, and knee, as well as in her low 

back. On June 14, 2013 Dr. Chandra Armstrong, a Board-certified family practitioner, advised 

that the findings of June 6, 2013 x-ray testing of appellant’s right knee were normal. She 

diagnosed a right knee contusion. In a January 31, 2014 report, Dr. Christopher Haraszti, a Boardcertified orthopedic surgeon, noted appellant’s complaints of cervical, right shoulder, right wrist, 

and lumbar pain, but he opined that her medical condition was not related to the June 5, 2013 fall. 

He released appellant to full duty. Appellant later received care for her multiple medical problems 

from Dr. Thomas Branch, a Board-certified orthopedic surgeon, who indicated that she did not 

complain of cervical or right knee symptoms during a January 27, 2016 physical examination. 

On September 12, 2016 appellant requested that OWCP expand the accepted conditions in 

her case. She asserted that she sustained cervical and right knee conditions as a direct result of the 

 

2 By decision dated April 26, 2019, OWCP denied appellant’s claim for a schedule award. The Board and OWCP 

may not exercise simultaneous jurisdiction over the same issue(s) in a case on appeal. 20 C.F.R. § 501.2(c)(3). 

Following the docketing of an appeal before the Board, OWCP does not retain jurisdiction to render a further decision 

regarding the issue(s) on appeal until after the Board relinquishes jurisdiction. Id. Thus, the April 26, 2019 OWCP 

decision is null and void. See id.; Terry L. Smith, 51 ECAB 182 (1999); Arlonia B. Taylor, 44 ECAB 591 (1993); 

Douglas E. Billings, 41 ECAB 880 (1990).

3 5 U.S.C. § 8101 et seq.

4 Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). After exercising its discretion, by order dated March 6, 2019, the Board denied the request as appellant’s 

arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the 

record. Order Denying Request for Oral Argument, Docket No. 18-1730 (issued March 6, 2019).
3

June 5, 2013 employment incident. By decision dated September 22, 2016, OWCP expanded 

appellant’s accepted conditions to include lumbosacral radiculopathy and bicipital tendinitis of her 

right shoulder. 

On November 1, 2016 appellant had filed a claim for a schedule award (Form CA-7) due 

to her accepted employment conditions. 

By decision dated November 18, 2016, OWCP denied appellant’s request for expansion of 

her accepted conditions to include consequential cervical and right knee conditions, noting that 

she had not submitted medical evidence sufficient to establish causal relationship between her 

accepted June 5, 2013 injury and the claimed consequential cervical and right knee problems.

On December 7, 2016 appellant, through her then counsel, requested a telephonic hearing 

with a representative of OWCP’s Branch of Hearings and Review. Appellant subsequently 

submitted March 7, April 18, and May 22, 2017 reports from Dr. Branch who diagnosed cervical 

disc disorder with radiculopathy and opined that this condition was related to appellant’s June 5, 

2013 fall. During the hearing held on June 15, 2017, she testified that she hit her right knee on the 

floor when she fell on June 5, 2013 and that her neck jerked backwards and forwards.

By decision dated August 3, 2017, OWCP’s hearing representative affirmed OWCP’s 

November 18, 2016 decision denying appellant’s request for expansion of her accepted conditions. 

In support of her schedule award claim, appellant submitted a February 23, 2017 report

from Dr. Richard M. Blecha, an attending Board-certified orthopedic surgeon, who advised that 

appellant presented complaining of pain in her right shoulder, the lateral aspect of her right thigh, 

low back, and neck (with tingling/numbness radiating in her right hand). Dr. Blecha summarized

appellant’s factual and medical history and detailed the findings of his February 23, 2017 physical 

examination, noting that right leg raise testing elicited a complaint of right lateral hip/thigh pain at 

60 degrees of flexion. Appellant had 5/5 muscle strength in her upper and lower extremities, 

although she reported pain upon muscle testing of her right lower extremity. With respect to range 

of motion (ROM) testing of the right shoulder, Dr. Blecha indicated that appellant had 100 degrees 

of flexion, 20 degrees of extension, 100 degrees of abduction, 30 degrees of adduction, 50 degrees 

of internal rotation, and 20 degrees of external rotation.

Dr. Blecha provided an impairment rating of appellant’s right lower extremity using the 

diagnosis-based impairment (DBI) rating method under the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 He found 

that, under that Table 16-4 (Hip Regional Grid) beginning on page 512, appellant’s primary 

diagnosis of right hip trochanteric bursitis (class 1) warranted a default value of two percent.

Dr. Blecha determined that appellant had a grade modifier for functional history (GMFH) of 0 (no 

limp), grade modifier for physical examination (GMPE) of 2 (moderate palpatory findings), and 

grade modifier for clinical studies (GMCS) of 0 (no relevant studies available). Application of the 

net adjustment formula did not result in a change from the two percent default value for permanent 

impairment of the right lower extremity.

 

5 A.M.A., Guides (6th ed. 2009).
4

With respect to appellant’s right upper extremity, Dr. Blecha applied the DBI rating 

method under Table 15-5 (Shoulder Regional Grid) beginning on page 401 and found that her 

primary diagnosis of right shoulder tendinitis/bursitis (class 1) warranted a default value of three 

percent for permanent impairment of the right upper extremity. He determined that appellant had 

a GMFH of 2 (pain with normal activity), GMPE of 1 (minimal palpatory findings), and GMCS

of 0 (normal diagnostic testing of lumbar spine). Application of the net adjustment formula did 

not result in a change from the three percent default value for permanent impairment of the right 

upper extremity.

On March 5, 2017 OWCP referred appellant’s case to Dr. Arthur S. Harris, a Boardcertified orthopedic surgeon serving as an OWCP district medical adviser (DMA). It requested 

that Dr. Harris provide a rating of permanent impairment for appellant’s right lower and right 

upper extremities under the standards of the sixth edition of the A.M.A., Guides.

In a March 31, 2018 report, Dr. Harris advised that he had reviewed the medical evidence 

of record, including Dr. Blecha’s February 23, 2017 report. He explained that, where the A.M.A., 

Guides allows for use of both the DBI and ROM rating methods, the rating method producing the 

higher rating should be used. With respect to the right lower extremity, Dr. Harris applied the DBI 

rating method and found that, under Table 16-4 of the sixth edition of the A.M.A., Guides, 

appellant had a primary diagnosis of right hip strain (class 1) which warranted a finding of two 

percent permanent impairment of the right lower extremity. He advised that the A.M.A., Guides 

did not allow for the use of the ROM impairment rating method for the diagnosis of hip strain and 

concluded that appellant’s right lower extremity permanent impairment totaled two percent.

With respect to appellant’s right upper extremity impairment, Dr. Harris initially applied 

the DBI rating method and found that, under Table 15-5, appellant had a primary diagnosis of right 

rotator cuff tendinitis (class 1) which warranted a finding of three percent permanent impairment 

of the right upper extremity. However, he further explained that, for this diagnosis, the A.M.A., 

Guides allowed for use of the ROM rating method. Under Table 15-34 on page 475, appellant had 

13 percent permanent impairment of her right upper extremity due to addition of the following 

ROM deficits for the right shoulder: three percent due to 100 degrees of flexion; two percent due 

to 20 degrees of extension; three percent due to 100 degrees of abduction; one percent due to 30 

degrees of adduction; two percent due to 50 degrees of internal rotation; and two percent due to 

20 degrees of external rotation. Dr. Harris determined that the combined permanent impairment 

rating of appellant’s right upper extremity was 13 percent because the ROM rating method yielded 

a higher impairment than the DBI rating method.6

By decision dated May 18, 2018, OWCP granted appellant a schedule award for 2 percent 

permanent impairment of her right lower extremity and 13 percent permanent impairment of her 

right upper extremity. The award ran for 46.32 weeks from April 24, 2018 to March 14, 2019 and 

was based on the impairment rating of the DMA.

On August 8, 2018 appellant requested reconsideration of OWCP’s August 3, 2017 

decision denying her request for expansion of the accepted conditions to include cervical and right 

 

6 Dr. Harris advised that appellant reached maximum medical improvement on February 23, 2017, the date of the 

examination by Dr. Blecha.
5

knee conditions. She again argued that she sustained injury to her neck and right knee as a direct 

result of her June 5, 2013 fall.

In support of her request for reconsideration, appellant submitted a June 25, 2018 letter 

from Dr. Rudolph V. Tacoronti, a Board-certified occupational medicine physician, who served as

a health officer for the employing establishment. Dr. Tacoronti advised that an unspecified 

attending physician had diagnosed a right knee sprain/strain in mid-2013. In a May 22, 2017 note,

Dr. Branch recommended physical therapy for appellant’s right shoulder condition. Appellant 

submitted a hospital discharge record from August 2017, prescription refill orders from 2017 and 

2018, and lumbar spine diagnostic testing results from June 2018. 

Appellant also submitted November 6, 2017 and June 12, 2018 documents which included 

examination findings. The documents list Dr. Branch as a “provider,” but they do not contain a

signature block and have not been signed by Dr. Branch or any other person. 

By decision dated August 28, 2018, OWCP denied appellant’s request for reconsideration, 

finding that it was untimely filed and failed to demonstrate clear evidence of error in its August 3, 

2017 decision which denied her request for expansion of the accepted conditions.

LEGAL PRECEDENT -- ISSUE 1

The schedule award provision of FECA7and its implementing federal regulation8set forth 

the number of weeks of compensation payable to employees sustaining permanent impairment 

from loss, or loss of use, of scheduled members or functions of the body. However, FECA does 

not specify the manner in which the percentage of loss shall be determined. For consistent results 

and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A., Guides 

as the uniform standard applicable to all claimants.9 As of May 1, 2009, the sixth edition of the 

A.M.A., Guides is used to calculate schedule awards.10 

In determining impairment for the upper extremities under the sixth edition of the A.M.A., 

Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity 

to be rated.11 The sixth edition requires identifying the impairment class for the class of diagnosis 

 

7 5 U.S.C. § 8107.

8 20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 

2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 

and Exhibit 1 (January 2010). 

11 With respect to the shoulder, the relevant portion of the arm for the present case, reference is made to Table 15-

5 (Shoulder Regional Grid). With respect to the hip, the relevant portion of the leg, reference is made to Table 16-4 

(Hip Regional Grid). A.M.A., Guides (6th ed. 2009) 401-05, 512-15, Table 15-5, Table 16-4. Table 15-5 also provides 

that, if motion loss is present for a claimant with certain diagnosed conditions, impairment may alternatively be 

assessed using section 15.7. Such a ROM impairment stands alone and is not combined with a DBI. Id. at 401-05, 

475-78. 
6

(CDX), which is then adjusted by grade modifiers including GMFH, GMPE, and GMCS.12 The 

net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).13 

With respect to the standards for conducting ROM evaluations, section 15.7 of the sixth 

edition of the A.M.A., Guides provides:

“[ROM] should be measured after a “warm up,” in which the individual moves the 

joint through its maximum [ROM] at least [three] times. The [ROM] examination 

is then performed by recording the active measurements from [three] separate 

[ROM] efforts. Measurements should be rounded up or down to the nearest number 

ending in 0.... All measurements should fall within 10 [degrees] of the mean of 

these three measurements. The maximum observed measurement is used to 

determine the [ROM] impairment.”

14

Regarding the application of ROM or DBI impairment methodologies in rating permanent 

impairment of the upper extremities, FECA Bulletin No. 17-06 provides:

“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss 

of ROM that a restricted ROM has an organic basis, three independent 

measurements should be obtained and the greatest ROM should be used for the 

determination of impairment, the CE [claims examiner] should provide this 

information (via the updated instructions noted above) to the rating physician(s).”

“Upon initial review of a referral for upper extremity impairment evaluation, the 

DMA should identify (1) the methodology used by the rating physician (i.e. DBI or 

ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,] Guides

identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,] Guides 

allow for the use of both the DBI and ROM methods to calculate an impairment 

rating for the diagnosis in question, the method producing the higher rating should 

be used.” (Emphasis in the original.)15

The Bulletin further advises: 

“If the rating physician provided an assessment using the DBI method and the 

[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA 

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the CE.

“If the medical evidence of record is not sufficient for the DMA to render a rating 

on ROM where allowed, the DMA should advise as to the medical evidence 

 

12 See A.M.A., Guides 405-11.

13 Id. at 411-12.

14 Id. at 464.

15 FECA Bulletin No. 17-06 (issued May 8, 2017).
7

necessary to complete the rating. However, the DMA should still render an 

impairment rating using the DBI method, if possible, given the available 

evidence.”

16

The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the 

World Health Organization’s International Classification of Functioning, Disability and Health 

(ICF).17 Under the sixth edition, for lower extremity impairments the evaluator identifies the 

impairment of the class of diagnosis (CDX) condition, which is then adjusted by grade modifiers 

of GMFH, GMPE, and GMCS.18 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) 

+ (GMCS-CDX).19

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish more than two 

percent permanent impairment of her right lower extremity, for which she previously received a 

schedule award. The Board further finds that the case is not in posture for decision with respect 

to the extent of appellant’s right upper extremity permanent impairment.

With respect to permanent impairment of the right lower extremity, OWCP properly based 

its May 18, 2018 schedule award on the March 31, 2018 calculation of the DMA who applied the 

appropriate standards of the sixth edition of the A.M.A., Guides to the February 23, 2017 

examination findings of Dr. Blecha. He provided an impairment rating in accordance with that 

provided by Dr. Blecha and correctly concluded that appellant had two percent permanent 

impairment of her right lower extremity. The DMA applied the DBI rating method and found that, 

under Table 16-4 of the sixth edition of the A.M.A., Guides, appellant had a primary diagnosis of 

right hip strain (Class 1) which warranted a finding of two percent permanent impairment of the 

right lower extremity.20 He properly advised that the A.M.A., Guides did not allow for the use of 

the ROM impairment rating method for appellant’s diagnosed right hip condition.

21

With respect to the right upper extremity, the DMA should identify the methodology used 

by the rating physician (DBI or ROM) and whether the applicable tables in Chapter 15 of the 

A.M.A., Guides identify a diagnosis that can alternatively be rated by ROM. If the A.M.A., Guides

allow for the use of both the DBI and ROM methods to calculate an impairment rating for the 

 

16 Id.

17 A.M.A., Guides, supra note 7 at page 3, section 1.3, The International Classification of Functioning, Disability 

and Health (ICF): A Contemporary Model of Disablement.

18 Supra note 14.

19 Supra note 15.

20 Dr. Blecha had determined that appellant had a GMFH of 0, GMPE of 2, and GMCS of 0, and he had opined that 

application of the net adjustment formula did not result in a change from the two percent default value for permanent 

impairment of the right lower extremity. The DMA also found that there was no need to change from this two percent 

default value. See supra notes 12 and 13. 

21 A.M.A., Guides 512, Table 16-4.
8

diagnosis in question, the method producing the higher rating should be used.22 Moreover, with 

respect to the standards for conducting ROM evaluations, section 15.7 of the sixth edition of the 

A.M.A., Guides provides that, after warm-up motions, the ROM examination is performed by 

recording the active measurements from three separate ROM efforts. All measurements should 

fall within 10 degrees of the mean of these three measurements and the maximum observed 

measurement is used to determine the ROM impairment.23

Table 15-5 provides that, if motion loss is present for a claimant who has right shoulder 

tendinitis, impairment may alternatively be assessed using section 15.7.

24

 Although Dr. Blecha 

considered the ROM of appellant’s right shoulder in evaluating permanent impairment of her right 

upper extremity, there is no indication that he had ROM data available to him which was obtained 

in accordance with the above-noted standards.25 

In order to conduct a full evaluation of appellant’s right upper extremity permanent 

impairment, the Board finds that the case shall be remanded to OWCP in order for it to attempt to 

obtain the raw data from Dr. Blecha for ROM testing of appellant’s right shoulder. If the data is 

obtained for three measurements of each relevant type of ROM (with all measurements falling 

within 10 degrees of the mean of the measurements), it should be evaluated and considered under 

the relevant standards of the A.M.A., Guides as a possible basis for an impairment rating. If such 

data is not available, OWCP should take appropriate steps to obtain it. After developing the 

evidence in accordance with the Board’s decision, OWCP shall issue a de novo decision regarding 

appellant’s right upper extremity permanent impairment.

LEGAL PRECEDENT -- ISSUE 2

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

merit review.26 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.27 Timeliness is determined by the document receipt date of 

the request for reconsideration as indicated by the received date in the integrated Federal 

 

22 See supra notes 15 and 16.

23 See supra note 14.

24 A.M.A., Guides 402, Table 15-5.

25 Dr. Blecha only provided one measurement for each type of ROM of the right shoulder.

26 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).

27 20 C.F.R. § 10.607(a).
9

Employees’ Compensation System (iFECS).28 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.29

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

a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited 

review to determine whether it demonstrates clear evidence of error.30 If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.31

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

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

manifest on its face that OWCP committed an error. Evidence that 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 to merely demonstrate 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.32

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

difficult standard. The claimant must present evidence which on its face demonstrates that OWCP 

made an error (for example, proof that a schedule award was miscalculated). 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 not clear evidence of 

error.33 The Board makes an independent determination of whether a claimant has demonstrated 

clear evidence of error on the part of OWCP.34

 

28 Supra note 10 at Chapter 2.1602.4(b) (February 2016).

29 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).

30 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).

31 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 10 at Chapter 2.1602.5 (February 2016).

32 S.W., Docket No. 18-0126 (issued May 14, 2019); Robert G. Burns, 57 ECAB 657 (2006).

33 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 10 at Chapter 2.1602.5(a) (February 2016).

34 D.S., Docket No. 17-0407 (issued May 24, 2017).
10

ANALYSIS -- ISSUE 2

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.

The Board finds that OWCP properly determined that appellant failed to file a timely 

request for reconsideration. An application for reconsideration must be received within one year 

of the date of OWCP’s decision for which review is sought.35 As appellant’s request for 

reconsideration was not received by OWCP until August 8, 2018, more than one year after 

issuance of its August 3, 2017 merit decision, it was untimely filed. Consequently, she must 

demonstrate clear evidence of error by OWCP in its August 3, 2017 decision.36

The Board further finds that appellant failed to demonstrate clear evidence of error on the 

part of OWCP in issuing its August 3, 2017 decision. Appellant failed to submit the type of 

positive, precise, and explicit evidence which manifests on its face that OWCP committed error in 

its August 3, 2017 decision.37 The Board notes that OWCP denied appellant’s claim on a medical

basis, i.e., the failure to submit medical evidence sufficient to expand the accepted conditions to 

include cervical and right knee conditions.

Appellant submitted a June 25, 2018 letter from Dr. Tacoronti who advised that an 

unspecified attending physician had diagnosed appellant with a right knee sprain/strain in mid2013. In a May 22, 2017 note, Dr. Branch recommended physical therapy for appellant’s right 

shoulder condition. Appellant also submitted a hospital discharge record from August 2017, 

prescription refill orders from 2017 and 2018, and lumbar spine diagnostic testing results from 

June 2018. The Board finds, however, that this evidence does not raise a substantial question as 

to the correctness of OWCP’s August 3, 2017 decision.

38

 Dr. Tacoronti did not identify the 

physician who diagnosed a right knee sprain/strain or provide any indication that this condition 

was related to appellant’s June 5, 2013 fall at work. The other evidence appellant submitted is 

insufficient to show error in OWCP’s August 3, 2017 decision.

As noted, clear evidence of error is intended to represent a difficult standard.39 Even a 

detailed, well-rationalized medical report which, if submitted before the denial was issued, would 

have created a conflict in medical evidence requiring further development is insufficient to 

demonstrate clear evidence of error. 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.40

 

35 See supra note 24.

36 See supra notes 27 and 28.

37 See supra note 29.

38 See supra note 29.

39 See supra note 30.

40 M.E., Docket No. 18-1442 (issued April 22, 2019).
11

The Board finds that appellant’s request for reconsideration does not demonstrate on its 

face that OWCP committed error when it found in its August 3, 2017 decision that appellant failed 

to submit medical evidence sufficient to require expansion of the accepted conditions.41 Therefore, 

OWCP properly determined that appellant failed to demonstrate clear evidence of error.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish more than two 

percent permanent impairment of her right lower extremity, for which she previously received 

schedule award compensation. The case is not in posture for decision with respect to whether 

appellant has established greater than 13 percent permanent impairment of her right upper 

extremity. The Board further finds that OWCP properly denied appellant’s request for 

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

ORDER

IT IS HEREBY ORDERED THAT the August 28, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed and the May 18, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded 

for further action consistent with this decision of the Board. 

Issued: July 23, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

41 See S.F., Docket No. 09-0270 (issued August 26, 2009).