United States Department of Labor

Employees’ Compensation Appeals Board

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M.H., Appellant

and

U.S. POSTAL SERVICE, CURSEEN-MORRIS 

PROCESSING & DISTRIBUTION CENTER, 

Washington, DC, Employer

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Docket No. 21-0399

Issued: September 20, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

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 January 28, 2021 appellant filed a timely appeal from a September 8, 2020 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

has elapsed from OWCP’s last merit decision, dated August 7, 2019, to the filing of this appeal, 

 

1 The Board notes that appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules 

of Procedure. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules of Procedure, oral argument may be held in the 

discretion of the Board. 20 C.F.R. § 501.5(a). In support of appellant’s oral argument request, he asserted that oral 

argument should be granted because a recent medical evaluation established that he has a greater impairment for which 

he initially received schedule award compensation. The Board, in exercising its discretion, denies appellant’s request 

for oral argument because the Board does not have jurisdiction over the merits of the case. Oral argument in this 

appeal would further delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument 

request is denied and this decision is based on the case record as submitted to the Board.
2

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.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 September 29, 1993 appellant, then a 44-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on September 28, 1993 he injured his lower back and both elbows

when he lost his footing and fell down when descending porch steps while in the performance of 

duty. OWCP accepted his claim for sprain of lumbosacral joint (ligament), degeneration of the 

lumbosacral intervertebral disc, lumbosacral sprain, postoperative infection, and lumbar 

spondylosis with myelopathy. It paid appellant wage-loss compensation on the supplemental rolls 

beginning July 18, 1994 and placed him on the periodic rolls, effective November 3, 1995. On 

April 1, 1996 appellant returned to work as a computer instructor. OWCP continued to pay him

wage-loss compensation on the periodic rolls for loss of wage-earning capacity. 

On August 10, 2017 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

In an October 10, 2017 letter, Dr. Yetunde A. Shitta-Bey, a Board-certified internist, 

indicated that she had treated appellant for the conditions of degenerative lumbosacral disc disease 

with radicular symptoms, history of lumbar laminectomy, and presence of implanted 

neurostimulator, post-laminectomy syndrome, and history of rotator cuff repair, fibromyalgia, 

cerebral degeneration, hypertension, and bilateral pedal edema. She opined that appellant’s ability 

to earn a living was significantly diminished due to his diagnosed conditions. 

On January 16, 2018 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and the medical record to Dr. Chester DiLallo, a Board-certified orthopedic surgeon, for 

a second opinion examination in order to determine whether he had sustained a ratable permanent 

impairment due to his accepted September 28, 1993 employment injury in accordance with the 

sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides)

4 and The Guides Newsletter, Rating Spinal Nerve Extremity 

Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter). In a February 6, 

2018 report, Dr. LiLallo noted his review of the SOAF and appellant’s accepted conditions of 

 

2

5 U.S.C. § 8101 et seq.

3 The Board notes that following the September 8, 2020 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.

4 A.M.A., Guides(6th ed. 2009).
3

lumbosacral ligament sprain, postoperative infection, thoracic or lumbar spondylosis with 

myelopathy, and degeneration of lumbosacral intervertebral disc. Upon physical examination, he 

observed that appellant walked with what he referred to as “hiking sticks” with a short stride but 

reciprocal gate and no limp. Sensory examination of appellant’s lower extremities revealed 

decreased sensation throughout the L4 distribution from the knee area down to the medial aspect 

of his foot and in the L5 distribution from the thigh down to the dorsum of his foot. Dr. LiLallo 

noted that he detected no motor loss in either lower extremity. He reported that appellant had 

reached maximum medical improvement (MMI) as of February 6, 2018, the date of this 

examination. Dr. LiLallo utilized the diagnosis-based impairment (DBI) rating method to find that 

under Table 16-11, page 534, of the A.M.A., Guides, the class of diagnosis (CDX) for left severe 

sensory deficit, level 3, at L4 and L5 resulted in a class 1 impairment with a default value of three. 

He noted an adjustment factor of +3 and explained that the maximum adjustment was +2, which 

resulted in five percent left lower extremity permanent impairment at the L4 and L5 levels. 

Dr. LiLallo also indicated that under Table 16-12, page 534, appellant had level 3 severe sensory 

deficit on the right lower extremity at L4, L5, and S1, which fell under a CDX of class 1 

impairment with a default value of three. He noted an adjustment factor +3, which resulted in five 

percent permanent impairment of the right lower extremity at all three levels. Dr. LiLallo

concluded that appellant had five percent permanent impairment of each lower extremity.

In a February 20, 2018 report, Dr. Arthur Harris, a Board-certified orthopedic surgeon 

serving as the district medical adviser (DMA), noted his disagreement with Dr. LiLallo’s 

February 6, 2018 impairment rating report because permanent impairment was not based on The 

Guides Newsletter for rating spinal nerve impairments. Utilizing the DBI method, he determined 

that pursuant to The Guides Newsletter, appellant had one percent right lower extremity permanent 

impairment due to L4 lumbar radiculopathy and one percent right lower extremity permanent 

impairment due to L5 lumbar radiculopathy, for a total of two percent right lower extremity 

permanent impairment. Regarding appellant’s left lower extremity, the DMA determined that 

appellant had one percent permanent impairment for mild pain/impaired sensation of the left L4, 

left L5, and left S1 lumbar radiculopathy, which resulted in a total of three percent left lower

extremity permanent impairment. He noted that The Guides Newsletter did not allow for 

impairment ratings to be calculated on the range of motion (ROM) method for this diagnosis.

By decision dated April 24, 2018, OWCP granted appellant a schedule award for two 

percent permanent impairment of the right lower extremity and three percent permanent 

impairment of the left lower extremity. The award ran for 14.4 weeks from April 1 through

July 10, 2018. 

On November 9, 2018 appellant requested reconsideration.

In a September 27, 2018 note, Michael Smith, a nurse practitioner, noted appellant’s 

medical history for fibromyalgia, spondylosis, and spinal stenosis and opined that a massage chair 

was medically necessary for appellant to manage his pain. 

Appellant submitted diagnostic testing reports, including an October 19, 2018 

electromyography and nerve conduction velocity (EMG/NCV) and November 3, 2018 lumbar and 

cervical spine magnetic resonance imaging (MRI) scans.
4

In a November 19, 2018 decision, OWCP denied modification of its prior decision. 

On April 12, 2019 appellant requested reconsideration. He asserted that his condition had 

worsened to the point that he was considered a fall risk and had to use a walker and transport 

wheelchair to move around his house. Appellant also described his issues with incontinence.

Appellant submitted progress notes dated January 9 through March 25, 2019 from

Dr. James E. Rice, a Board-certified general surgeon. In the initial January 9, 2019 note, Dr. Rice

recounted appellant’s complaints of right leg and foot numbness and pain. He reviewed appellant’s 

history and noted physical examination findings of tenderness on palpation of the cervical and 

lumbar spines and no decreased response of the right leg and foot. Dr. Rice assessed lower back 

pain, lumbar disc degeneration, cervical spondylosis, postlaminectomy syndrome, cervical and 

lumbar spine stenosis and sciatica.

OWCP also received hospital records and an operative report dated March 12, 2019,

regarding a procedure for a spinal cord stimulator.

In an April 3, 2019 progress note and letter, Dr. Rice noted appellant’s history of a workrelated back injury, which had progressively worsened. He opined that appellant was at MMI for 

his back issues and that he was not a candidate for further surgery. Dr. Rice referenced Table 17-

4, page 570, of the A.M.A., Guides and determined that appellant had 30 percent whole person 

permanent impairment for class 4 impairment due to appellant’s back injury. He also utilized 

Table 13-13, page 337, of the A.M.A., Guides and calculated that appellant had 20 percent 

permanent impairment for class 3 impairment due to his neurogenic bowels dysfunction and bowel 

incontinence. Dr. Rice concluded that appellant had a total whole person permanent impairment 

of 55 percent.

In a July 16, 2019 report, Dr. Harris, serving as the DMA, noted his disagreement with

Dr. Rice’s impairment rating based on Table 17-4 for mechanical low back pain and for 

bowel/bladder incontinence. He explained that FECA did not provide for the calculation of an 

impairment rating based on bowel and bladder incontinence. Regarding appellant’s work-related 

lumbar injuries, the DMA noted that appellant had no neurologic deficits for lumbar radiculopathy 

in either lower extremity. He referenced The Guides Newsletter for rating spinal nerve 

impairments and calculated that appellant had zero percent permanent impairment of each lower 

extremity.

By decision dated August 7, 2019, OWCP denied modification of its prior decision.

On August 23, 2020 appellant requested reconsideration.

Appellant resubmitted Dr. Rice’s April 3, 2019 impairment rating report. He also 

submitted a December 3, 2019 procedure note for an anorectal manometry, which demonstrated 

abnormal results, and a June 24, 2020 epidural steroid injection procedure note from Dr. Rice.

In a June 3, 2020 letter, Dr. Anthony M. Daniels, a Board-certified internist and 

gastroenterologist, indicated that appellant had been seen in his clinic since May 2019 for bowel 

problems stemming from a 1993 work-related back injury. He indicated that appellant had 

subsequent surgeries on his spine and suffered from constipation and stool incontinence. 
5

Dr. Daniels noted that appellant had an abnormal anorectal manometry in December 2019, which 

demonstrated decreased rectal sensory perception and increased pelvic floor activity. He opined 

that it was not likely that appellant would regain functioning due to his neurologic injuries and 

back surgery.

In a September 8, 2020 decision, OWCP 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. 

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 

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 

 

5

20 C.F.R. § 10.607(a).

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

7 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 6at 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); Leona N. Travis, 43 ECAB 227, 240 (1991).

12 B.W., supra note 10.
6

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, 

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 request for reconsideration as it 

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

OWCP properly determined that appellant’s request for reconsideration was untimely filed. 

It received his request for reconsideration on August 23, 2020, more than one year after the last 

merit decision dated August 7, 2019.16 Since the reconsideration request was untimely, appellant

has the burden of proof to demonstrate clear evidence of error.

17

The Board further finds that appellant has not demonstrated clear evidence of error on the 

part of OWCP.

On reconsideration appellant submitted Dr. Rice’s April 3, 2019 impairment rating report, 

which was previously of record. This evidence is insufficient to raise a substantial question as to 

the correctness of OWCP’s decision and is insufficient to discharge his burden of proof.18

Appellant also submitted a June 3, 2020 letter from Dr. Rice regarding appellant’s bowel 

and bladder issues stemming from his 1993 work-related back injury. As FECA does not provide 

for the calculation of an impairment rating based upon these conditions, this evidence is not 

relevant to appellant’s schedule award claim and does not support that the August 7, 2019 merit 

decision was incorrect at the time it was issued.19 Similarly, the December 3, 2019 and June 24, 

2020 procedure notes are also not relevant to the schedule award claim and do not raise a 

substantial question as to whether the August 7, 2019 decision was in error.20 These medical 

 

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

14 Supra note 6at Chapter 2.1602.5(b).

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

16 Supra note 6.

17 Supra note 9.

18 See E.T., Docket No. 20-1651 (issued May 6, 2021); D.L., Docket No. 18-1112 (issued January 17, 2020).

19 See E.R., Docket No. 19-1553 (issued April22, 2021).

20 M.P., Docket No. 17-0367 (issued March 12, 2018); Leona N. Travis, 43 ECAB 227 (1991).
7

reports do not contain a permanent impairment rating regarding appellant’s September 28, 1993 

employment injury. Evidence that is not pertinent to the issue on which the claim was denied is 

insufficient to demonstrate clear evidence of error.21 

Consequently, OWCP properly found that appellant’s August 23, 2020 request for 

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

CONCLUSION

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.

ORDER

IT IS HEREBY ORDERED THAT the September 8, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 20, 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

 

21 D.B., Docket No 20-0466 (issued December 17, 2020); S.E., Docket No. 16-1258 (issued December 5, 2016); 

B.F., Docket No. 11-1181 (issued December 8, 2011).