United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.M., Appellant

and

DEPARTMENT OF THE NAVY, 

EXPEDITIONARY MEDICAL SUPPORT 

COMMAND, Williamsburg, VA, Employer

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Docket No. 21-1203

Issued: December 22, 2022

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, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On August 3, 2021 appellant filed a timely appeal from a February 5, 2021 nonmerit 

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

elapsed from OWCP’s last merit decision, dated June 27, 2018, 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.2 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the February 5, 2021 decision, appellant submitted additional evidence to OWCP.

However, the Board’s Rules of Procedure provides: “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.
2

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

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows. 

On September 2, 2008 appellant, then a 49-year-old inventory management specialist, filed 

a traumatic injury claim (Form CA-1) alleging that, on that date, he sprained his right ankle when 

he slipped on loose rocks and twisted his ankle while in the performance of duty. 4 He stopped 

work on that date. OWCP accepted appellant’s claim for right ankle sprain, deltoid ligament; knee 

sprain, lateral collateral ligament; and right venous embolism and deep vein thrombosis (DVT) of 

the right lower extremity.

Appellant continued to receive medical treatment. In office notes dated September 16 and 

October 17, 2016, Dr. Matthew Hopson, a podiatrist, recounted appellant’s complaints of right 

ankle pain and noted an onset of 20 years ago. Upon examination of appellant’s right ankle, he 

observed pain and instability along the right ankle joint. Dr. Hopson diagnosed post-traumatic 

osteoarthritis of the right ankle and foot. He explained that, after discussing conservative and 

surgical options, appellant chose to move forward with right ankle stabilization procedure and 

ankle arthroscopy.

On March 27, 2017 OWCP received a request for authorization for right ankle arthroscopy 

surgery.

On March 28, 2017 OWCP informed appellant that it was unable to authorize his request 

for right ankle arthroscopic surgery and repair of the right ankle ligament because the medical 

evidence of record was insufficient to establish that the requested procedure resulted from his 

accepted injury.

In an April 11, 2017 report, Dr. Hopson reviewed appellant’s history and explained that 

appellant had arthritis of his ankle due to instability from an anterior talofibular (ATF) ligament 

tear. He recommended a lateral ankle stabilization and repair of the torn ligament to prevent or 

slow the process of further osteoarthritic changes in the ankle and ankle arthroscopy to clean out 

some of the arthritic areas in the ankle joint.

3 Docket No. 20-0537 (issued September 24, 2020).

4 The record reflects that appellant has a prior accepted claim for a February 6, 2003 right ankle fracture under 

OWCP File No. xxxxxx179. That claim has not been administratively combined with the current claim.
3

By decision dated April 20, 2017, OWCP denied authorization for right ankle arthroscopy 

surgery and repair, finding that the medical evidence of record was insufficient to establish that 

the proposed surgery was necessary to treat his September 2, 2008 employment injury.

Appellant subsequently submitted additional medical evidence.

In treatment notes dated April 7 through October 18, 2017, Dr. John Paschold, a Boardcertified internist specializing in hematology and medical oncology, reviewed appellant’s 

laboratory test results and provided examination findings. He noted diagnoses of DVT disorder, 

factor V Leiden mutation disorder, and ankle pain.

In reports dated November 20 and December 5, 2017, Dr. Hopson indicated that appellant 

was treated for chronic right ankle pain. He indicated that appellant’s computerized tomography 

(CT) scan revealed osteoarthritic changes along the right ankle joint and the chronic ossifications 

along the ATF ligament consistent with the old ankle sprain injury. Dr. Hopson provided 

examination findings and assessed right ankle post-traumatic osteoarthritis and right ankle pain. 

He explained that, after discussion about an ankle implant versus ankle joint fusion due to the 

arthritic condition of the subtalar joints, appellant decided to undergo joint replacement surgery.

In reports dated January 3 through March 27, 2018, Dr. Michael E. Landis, a Boardcertified vascular surgeon, indicated that appellant had a history of a remote right ankle injury, 

recurrent chronic right lower extremity DVT, and chronic venous insufficiency with ulceration. 

He noted that appellant was scheduled for right ankle surgery, but it was delayed. Dr. Landis noted 

examination findings and diagnosed chronic venous insufficiency with recurrent statis ulceration 

of the right lower extremity DVT and right ankle degenerative joint disease following remote 

trauma.

Appellant underwent right lower extremity duplex scans on January 18, February 27, and

March 9, 2018.

In a March 9, 2018 examination report, Dr. Paschold noted right lower extremity findings 

and assessed DVT disorder, factor V Leiden mutation disorder, and ankle pain. He indicated that 

appellant was considering right ankle replacement surgery.

In a May 23, 2018 report, Dr. Hopson indicated that he had treated appellant since late 

2016 for unstable ankle as a result of ATF, talofibular, and deltoid ligament damage. He explained 

that appellant’s ankle joint had deteriorated to the point that surgical repair was no longer an option 

and he now recommended right ankle replacement surgery. Dr. Hopsonopined that the sprain that 

occurred in September 2008 was a contributing factor to appellant’s current condition. He reported 

that ankle replacement surgery was the best option to treat appellant’s current ankle condition, 

which had continued to deteriorate as a result of the 2008 sprain.

On June 18, 2018 appellant requested reconsideration.

By decision dated June 27, 2018, OWCP denied modification of its April 20, 2017 

decision.
4

In an August 7, 2018 office visit note, Dr. Hopson indicated that he treated appellant for 

complaints of worsening right ankle pain. He reviewed appellant’s history, provided examination 

findings, and assessed right ankle joint pain and right ankle post-traumatic osteoarthritis.

Dr. Hopson reported that appellant was scheduled for right ankle surgery.

In office notes and laboratory test results dated May 22, 2018 through April 1, 2019,

Dr. Paschold noted examination findings of right medial malleolus hyperpigmentation varicosities 

in the extremities. He assessed DVT disorder, factor V Leiden disorder, and ankle pain.

In a report dated May 14, 2019, Dr. Landis recounted appellant’s continued complaints of 

pain and discomfort on the dorsum of his right foot. He noted that appellant had a history of 

arthritis in his right ankle. Dr. Landis indicated that appellant was scheduled for a total joint 

replacement.

On June 28, 2019 appellant requested reconsideration. He asserted that combining his

claims would address the concerns about his history of ankle injuries. Appellant also argued that 

his treating physicians had provided rationalized medical opinion to establish causal relationship.

Appellant submitted a July 8, 2011 report by Dr. Loel Z. Payne, a Board-certified 

orthopedic surgeon, who diagnosed talar dome osteochondritis dissecans. Dr. Payne opined that 

the diagnosed condition was “due to his previous inversion sprain injury several years ago.” He

recommended an MRI scan and possible surgical intervention in the form of an arthroscopic 

chondroplasty.

In an October 22, 2018 note,Dr. Aasta Pederson, a Board-certified orthopedic surgeon who 

specializes in sports medicine, related that appellant was previously seen for right ankle 

osteoarthritis. She reviewed appellant’s history and noted physical examination findings of 

chronic venous statsis changes in the right ankle and tenderness to palpitation in the anterior dorsal 

tibia. Dr. Pederson opined that appellant had post-traumatic arthritis secondary to ankle fracture 

and multiple sprains/instability.

In reports dated November 27, 2018 through May 28, 2019, Dr. Paschold noted diagnoses 

of right lower extremity DVT, factor V Leiden heterozygote, and right ankle pain. He indicated 

that appellant was considering right ankle replacement surgery.

Appellant also submitted a July 8, 2011 report by Dr. Payne, and laboratory and diagnostic 

test results. 

By decision dated July 12, 2019, OWCP denied appellant’s reconsideration request, 

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

Appellant appealed to the Board. By decision dated September 24, 2020, the Board 

affirmed the July 12, 2019 OWCP decision in part, finding that the June 28, 2019 reconsideration 

request was untimely filed. The Board, however, set aside the July 12, 2019 OWCP decision in 

part, finding that OWCP failed to properly explain its findings in its July 12, 2019 decision. The 

Board remanded the case for OWCP to issue an appropriate decision, which made proper findings 

of facts and provided a statement of reasons explaining why the evidence appellant submitted did 

not demonstrate clear evidence of error.
5

By decision dated February 5, 2021, OWCP again denied appellant’s June 28, 2019

reconsideration request, 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.5 To be entitled to a merit review of an OWCP decision, a request for reconsideration 

must be received by OWCP within one year of the date of OWCP’s decision for which review is 

sought.6 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).7 The Board has found that the imposition of this one-year filing limitation does not 

constitute an abuse of discretion.8

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 that OWCP’s most recent 

merit decision was in error.9 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 demonstrates clear evidence of error on the part of OWCP.10 In this regard, 

OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior 

evidence of record.11

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.12 It is not enough merely to show that the evidence 

could be construed so as to produce a contrary conclusion. 13 This entails a limited review by 

5

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).

6

20 C.F.R. § 10.607(a).

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

8 G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); LeonD. 

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

9

See 20 C.F.R. § 10.607(b); R.S., Docket No. 19-0180 (issued December 5, 2019); Charles J. Prudencio, 41 ECAB 

499, 501-02 (1990).

10 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April15, 2010); see 

also id. at § 10.607; supranote 7 at Chapter 2.1602.5(a) (September 2020).

11 J.M., Docket No. 19-1842 (issued April23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018); 

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

12 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).

13 See G.B., Docket No. 19-1762 (issued March 10, 2020); LeonaN. Travis, 43 ECAB 227, 240(1991).
6

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.14 To demonstrate clear evidence of error, the evidence 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.15 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.16

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.

The Board, in its September 24, 2020 decision found that appellant’s request for 

reconsideration was untimely filed as it was received on June 28, 2019, more than one year after 

the June 27, 2018 OWCP merit decision. However, the Board remanded the case for OWCP to 

provide findings of fact and a statement of reasons, in accordance with FECA and its implementing 

regulations, regarding whether appellant’s reconsideration request demonstrated clear evidence of 

error.

17

 Findings made in prior Board decisions are res judicata absent further merit review by 

OWCP under section 8128 of FECA.18 

In his untimely reconsideration request, appellant asserted that combining the current claim 

with his prior claims would address the concerns about his history of ankle injuries. However, to 

demonstrate clear evidence of error, the evidence 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.

19

 Appellant’s argument, therefore, is 

insufficient to demonstrate clear evidence of error.

In support of his untimely reconsideration request, appellant submitted new medical 

evidence, including an August 7, 2018 report by Dr. Hopson, who provided examination findings 

and diagnosed right ankle joint pain and right ankle post-traumatic osteoarthritis. Appellant also 

submitted medical reports dated May 22, 2018 through May 28, 2019 by Dr. Paschold and a 

May 14, 2019 report by Dr. Landis who provided examination findings and noted diagnoses of 

14 B.W., supra note 13.

15 C.M., Docket No. 19-1211 (issued August 5, 2020); Robert G. Burns, 57 ECAB 657 (2006). 

16 U.C., Docket No. 19-1753 (issued June10, 2020); Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma 

Matthews, 44 ECAB 765, 770 (1993).

17 Supra note 3.

18 A.A., Docket No. 20-1399 (issued March 10, 2021); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

19 Supra note 16.
7

DVT disorder, factor V Leiden disorder, and ankle pain. However, as Drs. Hopson, Landis, and 

Paschold merely reiterated the findings and diagnoses made in medical reports that were 

previously considered by OWCP, this evidence is insufficient 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.

20

OWCP also received a July 8, 2011 report by Dr. Payne and an October 22, 2018 note by

Dr. Pederson. The physicians did not, however, provide an opinion on how the requested right 

ankle surgery was necessary to treat appellant’s September 2, 2008 employment injury. These 

reports, therefore, also do not raise a substantial question regarding the correctness of the June 27, 

2018 merit decision.21 As appellant’s request for reconsideration does not demonstrate on its face 

that OWCP committed an error in denying his request for right ankle surgery, the Board finds that 

OWCP properly determined that his June 28, 2019 request for reconsideration was untimely filed 

and failed to demonstrate clear evidence of error.22

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.

20 See R.T., Docket No. 22-0481 (issued July 20, 2022).

21 See W.C., Docket No. 22-0246 (issued June 14, 2022).

22 O.K., Docket No. 21-708 (issued September 29, 2021); S.C., Docket No. 19-1424 (issued September 15, 2020).
8

ORDER

IT IS HEREBY ORDERED THAT the February 5, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 22, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board