United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

DUBLIN VA MEDICAL CENTER, Dublin, GA, 

Employer

__________________________________________

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Docket No. 21-0720

Issued: February 4, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

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 April 12, 2021 appellant filed a timely appeal from an April 7, 2021 nonmerit decision 

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

from the last merit decision on the recurrence issue, dated October 22, 2019, 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 April 7, 2021 decision, OWCP received additional evidence. 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 of the 

merits of her recurrence claim, finding that it was untimely filed and failed to demonstrate clear 

evidence of error.

FACTUAL HISTORY

On October 23, 2018 appellant, then a 45-year-old licensed practical nurse, filed a 

traumatic injury claim (Form CA-1) alleging that on September 26, 2018 she sustained bilateral 

arm and shoulder pain, and back pain radiating to her lower extremities while assisting a co-worker 

prepare a patient for care. She stopped work and returned on November 8, 2018. OWCP accepted 

the claim for lower back muscle, fascia, and tendon strain. 

The record contains a duty status form (Form CA-17) dated December 28, 2018 from

Dr. Harvey Jones, a physician Board-certified in general surgery and internal medicine. 

Dr. Harvey diagnosed L4-5 herniated disc with sciatica. He provided work restrictions which 

included no lifting. 

On January 2, 2019 appellant accepted a transitional limited-duty practical nurse 

assignment, which was based on the lifting restriction provided by Dr. Jones.

The record contains a Form CA-17 and a narrative report dated July 29, 2019 from

Dr. Jones. In the July 29, 2019 narrative report, Dr. Jones noted appellant’s history of injury and 

medical treatment. He related appellant’s physical examination findings and diagnosed sciatica, 

obesity, L5-S1 bulging disc, lumbar intervertebral disorders with myelopathy, lumbosacral 

intervertebral disc displacement, bilateral sciatica, and L4-5 herniated disc. In a Form CA-17 of 

even date, Dr. Jones provided work restrictions of no lifting and up to one-half hour of sitting, 

standing, walking, climbing, bending/stooping, twisting, pulsing/pushing, simple grasping, 

reaching above the shoulder, and fine manipulation. 

On August 19, 2019 appellant filed a claim for compensation (Form CA-7) for disability 

from work for the period July 29 through August 9, 2019. 

In an August 22, 2019 development letter, OWCP provided a definition of a recurrence of 

disability. It advised appellant of the factual and medical evidence necessary to establish her claim, 

provided a questionnaire for her completion, and afforded her 30 days to submit additional 

evidence. 

On August 27, 2019 appellant was seen by Dr. Daniel W. Moore, a Board-certified 

neurological surgeon. Dr. Moore related that appellant was seen for complaints of leg and low 

back pain, and difficulty walking. He noted appellant’s physical and magnetic resonance imaging 

(MRI) scan examination findings and diagnosed lumbar radiculopathy, and bilateral sciatica. 

By decision dated October 22, 2019, OWCP denied appellant’s recurrence claim, finding 

that the evidence of record was insufficient to establish causal relationship between her claimed 

disability and the accepted lower back muscle, fascia, and tendon strain. It explained that appellant 
3

had not established that she was disabled due to a material change/worsening of the accepted 

employment-related conditions. 

In a May 6, 2020 letter, Anslie Prudhome, a certified nurse practitioner, related that

appellant was evaluated that day for a September 26, 2018 employment injury. On examination,

she reported bilateral L1-5 paraspinal tenderness on palpation along the iliac crests, lumbar pain 

with range of motion (ROM), bilateral greater trochanters, and bilateral piriformis. Ms. Prudhome

indicated that appellant was temporarily totally disabled from work. 

OWCP thereafter received a number of reports from treating physician, Dr. Victor 

Osisanya, Board-certified in physical medicine and rehabilitation. In reports dated May 6, June 9, 

July 15, August 17, September 17, October 10, November 24, and December 28, 2020,

Dr. Osisanya noted that appellant injured her neck and low back on September 26, 2018 while 

performing her work duties. He provided examination findings and reviewed the results of 

diagnostic testing. In addition to the accepted condition of lumbar strain, Dr. Osisanya listed as 

upgraded diagnoses cervical strain, cervical radiculopathy, lumbar region intervertebral disc 

displacement lumbosacral intervertebral disc displacement, and lumbar radiculopathy. He related:

“[W]ith reasonable degree of medical certainty, the injuries that patient sustained 

are traumatic in nature as they are a direct result of her work-related accident and 

happened acutely within one shift. The nature of patient’s job makes her 

susceptible to joint, muscle, and ligament issues.... More specifically, cervical and 

lumbar spine joints, paraspinal muscles, ligaments and soft tissues were stretched 

beyond normal muscle strength when patient reached outwards to push the patient 

over to her coworker. This led to a cervical strain (S16.1XXA-Cervical strain) and 

lumbar strain which are common from this mechanism. Also, leaning patient to 

help push him on his side, placed her spine at an anatomical disadvantage which 

put unnatural stress on her spine which led to increased loading forces on the 

cervical and lumbar spine which has caused inflammatory reaction in the cervical 

and lumbar paraspinals muscles, tendons and discs, and increasing intra discal 

pressure which led to bulging/herniated discs in her cervical and lumbar spine.”

Dr. Osisanya also completed CA-17 forms on the same dates indicating that appellant was 

unable to return to work. 

On December 15, 2020 OWCP referred the case record to District Medical Adviser,

Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, and requested that he provide an 

opinion as to whether the accepted employment incident was competent to cause the additional 

diagnoses reported by Dr. Osisanya. In a December 16, 2020 report, Dr. Harris, reviewed 

appellant’s medical records and recommended that OWCP expand acceptance of the claim to 

include lumbar intervertebral disc displacement and lumbar radiculopathy. He also related that 

the medical evidence of record did not document that appellant sustained injury to her cervical 

spine or had treatment for her cervical spine prior to the evaluation by Dr. Osisanya on 

November 24, 2020. Dr. Harris explained that while Dr. Osisanya provided a diagnosis of cervical 
4

strain, his reports did not document any ongoing problems with the cervical spine other than 

complaints of cervical spine pain during examination.3

On March 10, 2021 appellant requested reconsideration of the October 22, 2019 decision, 

contending that she returned to work on November 8, 2018 not November 8, 2019 and thatshe did 

not return to a full-duty shift as noted in the decision, that her paperwork had been misplaced by 

the employing establishment, and at no point did she return to her date-of-injury job. She further 

noted that her work schedule was amended to light-duty work following her submission of a work 

excuse from her chiropractor. Appellant also submitted: a September 7, 2018 employing 

establishment incident report; a Form CA-17 dated September 27, 2018; a September 30, 2018 

report of employee’s emergency treatment; an October 19, 2018 MRI scan by Dr. Jack M. 

Considine, a Board-certified diagnostic radiologist diagnosing L5-S1 moderate bilateral forminal 

narrowing and L4-5 mild bilateral recess and mild bilateral foraminal narrowing; work excuse

notes dated October 3 and 22, 2018 from Dr. Stacey Ashley, a chiropractor; e-mail correspondence 

dated October 26, 2018 noting her OWCP claim number; and a duplicate copy of limited-duty job 

offer which she accepted on January 2, 2019.

OWCP also received a March 1, 2021 report from Dr. Dominic Seymour, a specialist in 

physical medicine and rehabilitation, documenting that he had examined appellant as a new patient 

on that date.

By decision dated April 7, 2021, OWCP denied appellant’s March 10, 2021 request for 

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

It included a list of the evidence that appellant submitted, with the receipt date, and discussed each 

document in reaching its determination that appellant did not demonstrate clear evidence of error.

LEGAL PRECEDENT

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

merit review.4 This discretionary authority, however, is subject to certain restrictions. 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., 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

3 On January28, 2021 OWCP expanded the acceptance of appellant’s claim to include L4-5, L5-S1 lumbar 

radiculopathy and L4-5, L5-S1 other intervertebral lumbar region disc displacement. 

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).

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

7 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).
5

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 determined that appellant’s request for 

reconsideration was untimely filed. 

OWCP’s regulations13 and procedures14 establish a one-year time limit for requesting 

reconsideration, which begins on the date of the last merit decision issued in the case. A right to 

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 April15, 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 April23, 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); supranote 6 at Chapter 2.1602.5(a) (February2016).

12 U.C., Docket No. 19-1753 (issued June 10, 2020).

13 20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); 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).
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reconsideration within one year also accompanies any subsequent merit decision on the issues. 15 

The most recent merit decision pertaining to appellant’s recurrence claim was dated 

October 22, 2019. As OWCP received her request for reconsideration on March 10, 2021, more 

than one year after the October 22, 2019 decision, the Board finds that it was untimely filed. 

Consequently, appellant must demonstrate clear evidence of error on the part of OWCP in denying 

her recurrence claim.

The Board further finds that the case is not in posture for decision with regard to whether 

appellant has demonstrated clear evidence of error. 

On reconsideration, appellant submitted a March 1, 2021 report from Dr. Seymour, 

documenting that he had examined appellant as a new patient on that date. The Board, having 

duly considered the matter, notes that in denying appellant’s reconsideration request, OWCPfailed 

to consider Dr. Seymour’s March 1, 2021 report. OWCP listed the evidence submitted by 

appellant, including receipt dates, and reviewed them, but neither included nor discussed

Dr. Seymour’s report. Because Board decisions are final with regard to the subject matter 

appealed,16 it is crucial that OWCP address all of the relevant evidence received prior to the 

issuance of its final decision.17 As OWCP did not review Dr. Seymour’s March 1, 2021 report in 

its April 7, 2021 decision, the Board finds that this case is not in posture for decision.18 On remand, 

OWCP shall review all of the evidence that was of record at the time of its April 7, 2021decision. 

Following this and other such further development as deemed necessary, it shall issue an 

appropriate decision.

CONCLUSION

The Board finds that OWCP properly determined that appellant’s request for 

reconsideration was untimely filed. 

The Board further finds that the case is not in posture for decision with regard to whether 

appellant failed to demonstrate clear evidence of error. 

15 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

16 Id. at § 501.6(d).

17 See B.C., Docket No. 15-1222 (issued October 20, 2015); William A.Couch, 41 ECAB 548, 553 (1990).

18 See M.N., Docket No. 20-0110 (issued July 7, 2020);Y.B., Docket No. 20-0205 (issued July 7, 2020); H.H., 

Docket No. 14-1985 (issued June 26, 2015).
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ORDER

IT IS HEREBY ORDERED THAT the April 7, 2021 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part. The case is remanded to OWCP 

for further proceedings consistent with this decision of the Board.

Issued: February 4, 2022

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