United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 14-727
Issued: August 4, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 11, 2014 appellant filed a timely appeal from a January 24, 2014 decision of
the Office of Workers’ Compensation Programs (OWCP) that denied his request for
reconsideration without reviewing the merits of the case. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.3(c) and 501.3, and because more than one
year elapsed from issuance of the most recent merit decision of November 9, 2000 to the filing of
this appeal, the Board lacks jurisdiction to review the merits of the case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that his request was untimely filed and failed to establish
clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

For final adverse decisions of OWCP issued prior to November 19, 2008, a claimant had up to one year to file a
Board appeal. See 20 C.F.R. § 501.3(d)(2) (2008).

On appeal appellant contends that the medical reports from his treating physician
prepared in 2000 were misplaced in another file; that he was not provided legal assistance and
therefore OWCP should have helped him with discovery and obtaining a referee examination.
FACTUAL HISTORY
On August 24, 2000 appellant, then a 43-year-old labor custodian, filed a traumatic injury
claim alleging that on August 24, 1999 he sustained injuries to his foot, leg and back while riding
a scrubber with no shocks. He was jerked back and forth and bumped into walls while travelling
on uneven floors. Appellant had to press his foot very hard on the brake pedal to make the
necessary abrupt stops. He stated that the scrubber malfunctioned several times that date. The
employing establishment controverted the claim.
By decision dated November 9, 2000, OWCP denied appellant’s claim. It found that the
medical evidence was not sufficient to establish that his condition was caused or aggravated by
the employment activities of August 24, 1999. In a decision dated February 9, 2001, OWCP
denied appellant’s request for an oral hearing before an OWCP hearing representative.3
On September 25, 2012 appellant advised that he was exercising his appeal rights. By
letter dated October 12, 2012, OWCP informed him that, if he disputed a decision, he must
follow the appeal rights which accompanied the decision and specify the appeal right he was
requesting. By letter dated October 17, 2012, appellant requested “reconsideration based on the
written record.” On January 2, 2014 he asked OWCP to reconsider his claim and noted that he
was appealing the November 9, 2000 decision. Appellant indicated that five months after the
claim was closed the employing establishment accepted his medical documentation for fitnessfor-duty restrictions.
Appellant submitted a January 25, 2008 report from Dr. Randall N. Smith, a Boardcertified orthopedic surgeon. He was seen for a history dating back to 1999 when he was injured
at work. Appellant basically hurt all over, particularly in the neck and down the left arm and into
the lower back and down both legs. Dr. Smith noted that the diagnostic testing showed some
disc herniations and radiculopathy. He recommended repeat studies. In an April 4, 2008 report,
Dr. Smith noted that appellant continued to have problems in the left side of his neck, down the
left arm, the left side of the lower back, down the left leg, with the lower back being the most
prominent. Appellant also noted numbness in his hands and left leg. He had not had any
diagnostic studies; but clinically, Dr. Smith believed that appellant had a herniated disc or discs
in his cervical and/or lumbar spine causing cervical radiculopathy and lumbar radiculopathy. He
advised that appellant was able to work with restrictions.
OWCP also received a social security disability award dated September 3, 2001;
documents concerning a settlement agreement reached with the Merit Systems Protection Board
3

The Board notes that appellant also filed two other claims. In OWCP File No. xxxxxx930, appellant filed a
claim for a traumatic injury sustained on May 24, 1991. OWCP accepted the claim for sprain/strain of the
lumbosacral joint ligament and was administratively closed on April 1, 1992 as all benefits were paid. In OWCP
File No. xxxxxx761, appellant alleged a traumatic injury on July 23, 1992 and OWCP accepted this claim for
thoracic and lumbar sprain/strain and benefits were paid until it terminated benefits on December 6, 1999.

2

(MSPB) with regard to appellant’s proposed removal from employment; documents of Equal
Employment Opportunity (EEO) cases; materials concerning a class action suit against the
employing establishment; and documents concerning appellant’s other OWCP claims. Appellant
also submitted medical evidence which predated his alleged injury of August 24, 1999.
On January 2, 2014 appellant again requested reconsideration of the November 9, 2000
OWCP decision. He argued that the medical documentation showed permanent injuries and that
the employing establishment accepted the same medical documentation concerning his back in a
fitness-for-duty examination with permanent restrictions five months after the case was closed.
By decision dated January 24, 2014, OWCP denied appellant’s request for
reconsideration as it was not timely filed and failed to establish clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.4 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.5 The one-year period
begins on the date of the original decision. However, a right to reconsideration within one year
accompanies any subsequent merit decision on the issues. This includes any hearing or review
of the written record decision, any denial of modification following reconsideration, any merit
decision by the Board and any merit decision following action by the Board.6
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.7 OWCP 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 application for review shows clear evidence of error on
the part of OWCP.8

4

20 C.F.R. § 10.607(a).

5

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

6

D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013).

7

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

8

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). OWCP procedures further provide that the term clear evidence of error is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that the 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. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.3c.

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To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.9 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 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.13 To show 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 prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.14
ANALYSIS
OWCP denied appellant’s claim for compensation in a decision dated November 9, 2000.
This was the last merit decision in this case. The only issue before the Board in this appeal is
whether OWCP properly declined to review appellant’s case on the merits because it was not
timely filed and did not show clear evidence of error.
The Board finds that appellant filed an untimely request for reconsideration. The most
recent merit decision in this case is OWCP’s November 9, 2000 decision denying appellant’s
claim. Appellant did not request reconsideration until he filed a January 2, 2014 request for
reconsideration. Because more than one year elapsed from the November 9, 2000 merit decision
to appellant’s request for reconsideration, the Board finds that this request was untimely filed.
The Board also notes that appellant filed appeal documents on September 25 and
October 17, 2012. These documents were insufficient to show that appellant requested
reconsideration as appellant did not indicate at that time which appeal route he chose to take.
Nevertheless, these documents were also untimely as they were filed almost 12 years after the
last merit decision of November 9, 2000, and accordingly, would not constitute a timely request
for reconsideration in any event. The Board notes that the regulatory language unequivocally
sets a one-year time limit for filing reconsideration requests and does not indicate that a late
filing may be excused by extenuating circumstances.15

9

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

10

See Leona N. Travis, 43 ECAB 227, 240 (1991).

11

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

12

See Leona D. Travis, supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

14

Leon D. Faidley, Jr., supra note 5.

15

D.S., Docket No. 12-919 (issued August 23, 2012); see also 20 C.F.R. § 10.607.

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The Board also finds that appellant failed to demonstrate clear evidence of error. OWCP
denied his claim for the reason that the medical evidence was not sufficient to establish that his
medical condition was caused or aggravated by the alleged August 24, 1999 employment
incident. None of the evidence submitted addresses this issue. Since the November 9, 2000
merit decision, appellant filed reports from Dr. Smith, who generally noted appellant’s
symptoms and diagnosed disc herniations with radiculopathy. Whether or not appellant had
physical limitations is not the issue, his claim was denied because the evidence did not establish
a causal relationship between his medical conditions and the August 24, 1999 employment
incident. The reports do not manifest on their face that any error by OWCP was made in
denying appellant’s claim. Dr. Smith did not address causal relationship. The medical evidence
that predates the August 24, 1999 work incident is not relevant to appellant’s claim. The Board
notes that the term clear evidence of error is intended to represent a difficult standard. Even the
submission of a detailed well-rationalized medical report which, if submitted before the denial
was issued would have required further development of the evidence, is not sufficient to
establish clear evidence of error.16
Appellant alleges that there were mistakes made in the development of the case such as
reports by Dr. Smith from 2000 not being entered into the record, lack of discovery and failure to
obtain a referee examination. As he did not have an attorney, OWCP should have pursued these
issues. But appellant has the burden of proof to establish the essential elements of his claim.17
There are no medical records from 2000 by Dr. Smith in the record. Furthermore, an impartial
medical examination was unnecessary as there was no conflict in medical opinion.18 Appellant
submitted documents concerning multiple cases he had before other government agencies such
as the EEO Commission and the MSPB, but these documents are not relevant to the underlying
issue as decisions of other federal agencies or governmental bodies are not dispositive to issues
raised under FECA.19
Thus, appellant has not established clear evidence of error by OWCP.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review on the merits on the grounds that his request was untimely filed and failed to establish
clear evidence of error.

16

D.C., Docket No. 14-663 (issued June 26, 2014).

17

D.T., Docket No. 12-1597 (issued January 15, 2013); F.Z., Docket No. 10-1184 (issued November 10, 2010).

18

If there is a disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make an examination. 5 U.S.C.
§ 8123(a).
19

G.J., Docket No. 14-32 (issued May 21, 2014); see also A.C., Docket No. 12-1579 (issued December 13,
2012); Andrew Fullman, 57 ECAB 574 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 24, 2014 is affirmed.
Issued: August 4, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.L., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Farmers Branch, TX, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 20-1288
Issued: July 13, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 8, 2020 appellant filed a timely appeal from a January 30, 2020 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days have elapsed
from OWCP’s last merit decision, dated October 21, 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
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 30, 2020 decision, appellant submitted 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 13, 2019 appellant, then a 49-year-old financial specialist, filed an occupational
disease claim (Form CA-2) alleging that she developed a bilateral hand condition due to factors of
her federal employment, including prolonged typing and the positioning of her hands when sitting
while typing. She noted that she experienced bilateral chronic numbness and tingling in her ring
and little fingers as she typed on the computer, nine hours a day, five days a week. Appellant
indicated that she first became aware of her condition and its relationship to her federal
employment on March 5, 2019. She did not stop working.
In an undated statement, appellant described her work duties as continuous sitting for nine
hours per day for five days a week, which she alleged caused and persistently aggravated her
injuries. She noted that her fingers frequently fell asleep at work as her arms would bend in the
typing position, weakening her grip and causing difficulty with hand coordination when typing
throughout the day for long periods of time. Appellant indicated that she had been taking
medications and using a splint to relieve the pain in her hands. She noted that she became aware
of the severity of her condition when she began experiencing severe swelling and difficulty
sleeping. Appellant eventually sought medical treatment on March 5, 2019.
In a March 5, 2019 medical report, Dr. Robert Ippolito, a Board-certified plastic surgeon,
noted that appellant was evaluated for her bilateral wrist condition and observed that she had
decreased sensation of the palmar radial and palmar ulnar aspect of the left small finger, palmar
ulnar aspect of the right small finger, and palmar ulnar aspect of the right ring finger. He diagnosed
bilateral carpal tunnel syndrome (CTS).
In a March 20, 2019 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of medical evidence
needed, including a physician’s opinion as to how employment activities caused, contributed to,
or aggravated a diagnosed condition. In a separate development letter of even date, OWCP
requested that the employing establishment provide additional information regarding appellant’s
occupational disease claim, including comments from a knowledgeable supervisor regarding the
accuracy of appellant’s statements. It afforded both parties 30 days to respond. No response was
received.
By decision dated April 23, 2019, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish that her diagnosed condition was causally related
to the accepted factors of her federal employment.
In an April 16, 2019 medical report, Dr. Ippolito again noted that appellant had decreased
sensation in both hands. He diagnosed bilateral chronic median neuropathy status post carpal
tunnel decompression.

2

In a September 18, 2019 medical report, Dr. Ippolito conducted a physical examination and
diagnosed bilateral cubital tunnel syndrome. He explained that appellant had been and continues
to be exposed to repetitive activities. Dr. Ippolito opined that continued pressure on her bilateral
cubital tunnel at work was the cause of her current ulnar nerve compression at bilateral elbow.
On May 13, 2019 appellant had an electromyography and a nerve conduction velocity
(EMG/NCV) test, which revealed right ulnar sensory mononeuropathy and left median
mononeuropathy across the wrist.
On September 30, 2019 appellant requested reconsideration and submitted additional
evidence.
In an undated statement, appellant reiterated that her repetitive work duties, such as sitting
for nine hours a day for five days a week, caused and persistently aggravated her injuries. She
noted that she had been experiencing extreme back pain, weakness in her back, shoulders, and
hands, and frequent numbness in bilateral wrist/hand due to her repetitive duties.
By decision dated October 21, 2019, OWCP denied modification of its April 23, 2019
decision. On December 20, 2019 appellant again requested reconsideration and submitted
additional evidence.
In an undated statement, appellant specified that she experienced constant pain starting in
her neck that travelled down both arms to her wrists and fingers. She noted that her pain made it
hard to manipulate objects such as the telephone and stapler. Appellant also indicated that she had
been experiencing a burning sensation and swelling, as well as all other previously stated
symptoms in her bilateral wrist, hand, and forearm.
By decision dated January 30, 2020, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.4

3

5 U.S.C. § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued
February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).
4
20 C.F.R. § 10.606(b)(3); see L.D., id.; see also K.L., Docket No. 17-1479 (issued December 20, 2017); C.N.,
Docket No. 08-1569 (issued December 9, 2008).

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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 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.6 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant did not establish that OWCP erroneously applied or interpreted a specific point
of law, or advance a relevant legal argument not previously considered by OWCP. Accordingly,
the Board finds that appellant is not entitled to a review of the merits based on either the first or
second requirement under 20 C.F.R. § 10.606(b)(3).8
Appellant also did not submit relevant and pertinent new evidence in support of her
December 20, 2019 request for reconsideration. In support of her request, OWCP received an
undated statement wherein she described the symptoms related to her diagnosed condition.
However, the underlying issue on reconsideration was whether appellant had met her burden of
proof to establish that her diagnosed conditions were causally related to the accepted factors of her
federal employment. This is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 Because appellant did not provide any “relevant and pertinent new
evidence,” in support of her December 20, 2019 request for reconsideration she is not entitled to a
review of the merits based on the third requirement under 20 C.F.R. § 10.606(b)(3).10
The Board, therefore, finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.11

5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
6

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

7
Id. at § 10.608(b); M.S., Docket No. 19-0291 (issued June 21, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).
8

Y.L., Docket No. 20-1025 (issued November 25, 2020).

9

D.P., Docket No. 20-1225 (issued January 8, 2021); R.S., Docket No. 19-0312 (issued June 18, 2019); T.B.,
Docket No. 18-1214 (issued January 29, 2019).
10

Supra note 5.

11

D.M., Docket No. 18-1003 (July 16, 2020); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for
reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b), OWCP will
deny the request for reconsideration without reopening the case for a review on the merits).

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 13, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Riverview, FL, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1524
Issued: March 3, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 9, 2019 appellant, through counsel, filed a timely appeal from a January 22, 2019
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more than
180 days elapsed from OWCP’s last merit decision, dated February 7, 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
The record also includes a February 15, 2019 non-merit decision, which appellant’s counsel did not specifically
request Board review. As such, the Board will not exercise jurisdiction over OWCP’s February 15, 2019 nonmerit
decision. See 20 C.F.R. § 501.3.

appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of the claim.4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 27, 2017 appellant, then a 34-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that she strained the right side of her lower back that same day. She
indicated that the cause of her injury was “Unknown.” On the reverse side of the claim form, the
employing establishment indicated that appellant was injured while in the performance of duty and
that she stopped work on June 27, 2017. The employing establishment further noted that appellant
received medical care the date of the alleged injury.
Also on June 27, 2017, the employing establishment provided appellant authorization for
examination and/or treatment (Form CA-16). In the accompanying attending physician’s report,
Tabitha Charleston, a physician assistant, noted a history of pain to the left lower back after getting
into a vehicle. She diagnosed low back sprain, and checked the box marked “Yes” box indicating
her belief that the diagnosis was caused or aggravated by the described employment activity.
Ms. Charleston indicated that appellant could work light duty as of June 28, 2017. Her restrictions
included no lifting, pulling or pushing in excess of 10 pounds, and no bending. Ms. Charleston
also provided a June 27, 2017 duty status report (Form CA-17) with the same above-noted work
restrictions.
OWCP also received June 27, 2017 urgent care progress notes signed by Ms. Charleston.
Ms. Charleston noted that appellant complained of lower back pain while getting into a vehicle at
work that day. She provided findings on physical examination and diagnosed low back sprain.
Ms. Charleston also provided a June 27, 2017 state workers’ compensation form report with a
diagnosis of work-related lower back sprain. She reiterated the above-noted work restrictions.
In a July 10, 2017 development letter, OWCP advised appellant that when her claim was
received it appeared to be a minor injury that resulted in minimal or no lost time from work, and
since the employing establishment had not controverted continuation of pay or challenged the case,
a limited amount of medical expenses were administratively approved and paid. It noted that it
had reopened the claim for formal consideration because appellant did not return to work in a fulltime capacity. OWCP informed appellant that additional factual and medical evidence were
required in support of her claim. It advised her of the factual and medical evidence necessary to

3

5 U.S.C. § 8101 et seq.

4

The Board notes that following the January 22, 2019 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
evidence for the first time on appeal. Id.

2

establish her claim and attached a questionnaire for her completion. OWCP afforded appellant 30
days to submit the requested factual and medical evidence.
July 4, 2017 urgent care notes signed by Honey Chacko, a nurse practitioner, indicated that
appellant presented with back pain from a work-related injury. Appellant’s condition was
improving, but she was still unable to bend down. On physical examination there was minimal
range of motion in her spine, but otherwise her findings were normal results. Ms. Chacko
diagnosed low back sprain and continued the previous work restrictions.
A July 4, 2017 state workers’ compensation uniform medical treatment/status reporting
form signed by Ms. Chacko indicated that appellant sought treatment for a work-related injury and
was diagnosed with a back sprain. She noted that there were no preexisting conditions contributing
to the diagnosis, and that the injury in question was the major contributing cause for appellant’s
diagnosis. Ms. Chacko also repeated appellant’s work restrictions.
A July 11, 2017 urgent care progress note signed by Jessy Abraham, a nurse practitioner,
indicated that appellant related that she no longer had back pain and would go back to work the
next day. A physical examination revealed normal results, including that the range of motion of
appellant’s spine was normal. A July 11, 2017 work note from urgent care signed by Mr. Abraham
stated that appellant could return to full-duty work without restrictions on July 12, 2017. A
July 11, 2017 state workers’ compensation uniform medical treatment/status reporting form signed
by Mr. Abraham noted that appellant had no restrictions and could return to work the following
day.
Records relating to a separate alleged work-related lower back injury sustained by
appellant on July 13, 2017 while lifting packages were received by OWCP.5
By decision dated August 16, 2017, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record failed to establish that she sustained an injury in the
performance of duty, as alleged. It concluded, therefore, that the requirements had not been met
to establish an injury as defined by FECA.
June 27, 2017 medical records signed by Ms. Charleston indicated that appellant
complained of a work-related injury, was diagnosed with a lower back sprain, and was prescribed
medication.
A July 4, 2017 work note from urgent care noted that appellant could return to work on
July 5, 2017 with the restrictions of no bending, lifting, pulling, or pushing more than 10 pounds.
Appellant resubmitted urgent care records from July 4 and 11, 2017, both of which now
contained two unidentifiable signatures.
An August 8, 2017 medical report by Dr. Fabio Fiore, an orthopedic surgeon, indicated
that on June 27, 2017 appellant sustained a lower back injury when she got into her car after
5
The current record confirms that appellant previously filed an occupational disease claim, which OWCP assigned
File No. xxxxxx567. By decision dated March 25, 2019, OWCP denied modification of its September 24, 2018 denial
of the claim. This prior claim is the subject of a separate appeal assigned Docket No. 19-1525.

3

delivering two packages and felt back pain. She went to urgent care on that day and reported back
pain, returned with back pain on July 4, 2017, and again went to urgent care on July 11, 2017
where she noted her back pain was improving. Dr. Fiore stated that, after two weeks of not going
to work, appellant returned to work and experienced a recurrence of her back pain.
An August 10, 2017 lumbar magnetic resonance imaging (MRI) scan indicated that
appellant’s intervertebral discs at L3-4 and L4-5 showed some desiccation changes, and her
intervertebral disc at T12-L1 showed desiccation changes and reduction in height. At L2-3 there
was a grade 1 retrolisthesis of L2 over L3 by 1 mm, and a broad-based posterior disc bulge indented
the thecal sac and caused some narrowing of the right neural foramen, inferiorly. Additionally,
hypertrophic changes were noted in bilateral facet joints. At L3-4 and L4-5 a disc bulge indented
the thecal sac, and at L5-S1 mild hypertrophic changes were noted in the bilateral facet joints.
On August 28, 2017 appellant requested review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
In a September 18, 2017 follow-up report, Dr. Fiore indicated that appellant reported that
her symptoms had improved to the point that she was ready to go back to work full duty.
Accordingly, he advised that appellant was to return to work full duty, and that she should return
to his office on an as need basis.
In an undated response to OWCP’s questionnaire, appellant recounted the circumstances
surrounding her injury. She stated that she had exited her vehicle to deliver parcels, and as she
pulled herself up to get back into her truck she felt extreme pain in her lower right back. Appellant
was unable to twist or move without pain, and she called her supervisor and returned to her office.
She completed the relevant paperwork and then went to a walk-in clinic. Appellant was in pain
the entire time, and she related that she was prescribed pain medication and muscle relaxers. She
indicated that she did not sustain any other injury between the date of her injury and the date it
was first reported to her supervisor and her physician. Appellant also noted that she did not have
any similar disability or symptoms prior to this injury.
By decision dated February 7, 2018, an OWCP hearing representative modified the
August 16, 2017 decision, finding that appellant established that she sustained an injury in the
performance of duty, as alleged, but continued to deny her claim as the evidence of record failed
to establish causal relationship.
In May 2018, OWCP received another copy of Dr. Fiore’s September 18, 2017 follow-up
report indicating that appellant was able to return to work full duty.
A July 23, 2018 personal narrative statement from appellant indicated that on June 27,
2017 she injured her lower back while getting into her postal vehicle and was diagnosed with a
low back strain. She noted that on July 11, 2017 her pain dissipated and she was advised she could
return to work full time, which she did on July 12, 2017. Appellant also noted that on July 13,
2017, her second day back to work, she reinjured her low back while bending over and putting
down a parcel, and that this pain was more intense, especially on the right side, and radiated down
her right leg. She additionally described the trajectory of her treatment for her July 13, 2017 injury.
In narrative medical report dated November 19, 2018, Dr. Fiore indicated that he reviewed
appellant’s urgent care records regarding the June 27, 2017 accepted employment incident, which
4

caused her back strain. He also noted having reviewed appellant’s July 23, 2018 statement.
Dr. Fiore indicated that on July 11, 2017 appellant was instructed by a physician to return to work,
as there were no continuing symptoms in her low back. A day after appellant returned to work she
experienced renewed and more intense pain in her low back while bending over and putting down
a parcel.
Dr. Fiore reported that the degenerative findings from the August 10, 2017 lumbar MRI
scan exceed what would be expected for a 35-year-old woman. He noted that appellant’s job duties
of extensive moving in and out of cars, lifting packages of various weights from the ground, and
carrying those packages for delivery would place stress on the low back degenerative conditions
identified in appellant’s MRI scan, which he noted was consistent with her right lower extremity
radicular symptoms. Dr. Fiore opined that the physical requirements of appellant’s position such
as frequent lifting, twisting, and climbing in and out of a car would aggravate her lumbar
degenerative condition, and stated that the July 13, 2017 incident was consistent with further
aggravation of her degenerative condition. He concluded that her occupational activities were the
major cause for the aggravation of her degenerative back condition as revealed by her August 10,
2017 lumbar MRI scan.
On January 17, 2019 appellant, through counsel, requested reconsideration. In an
accompanying letter, counsel stated that the newly submitted evidence included a physician’s
opinion as to causal relationship between appellant’s diagnosed condition and her specified
employment factors. Counsel further noted that the physician’s opinion was supported by
objective medical findings and medical rationale, which explained the nature of the relationship
between appellant’s factors of employment and her diagnosed condition, and that the doctor’s
opinion was expressed with a reasonable degree of medical certainty. He also noted that appellant
filed an occupational disease claim (Form CA-2) regarding the same condition. Counsel
concluded that appellant’s claim should now be accepted, as he had cured its deficiencies.
By decision dated January 22, 2019, OWCP denied appellant’s reconsideration request.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.7

6

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
7
20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).

5

A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.9 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, and did not advance a relevant legal argument not previously considered by OWCP.
Consequently, she was not entitled to a review of the merits based on the first and second abovenoted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant has not submitted relevant and pertinent new
evidence not previously considered by OWCP. In support of her reconsideration request, appellant
submitted a July 23, 2018 personal statement describing her injuries and the trajectory of her
symptoms, treatment, and return to work. The Board notes that OWCP denied appellant’s
traumatic injury claim because there was insufficient medical evidence to establish causal
relationship between appellant’s diagnosed condition and her accepted June 27, 2017 employment
incident. As the underlying issue in this case was a medical issue, it must be addressed by relevant
and pertinent new medical evidence.11 Accordingly, appellant’s July 23, 2018 narrative statement
is insufficient to warrant further merit review.
OWCP also received another copy of Dr. Fiore’s September 18, 2017 follow-up report
indicating appellant was able to return to full-duty work. The Board has held that the submission
of evidence which duplicates or is substantially similar to evidence already in the case record does
not constitute a basis for reopening a case.12
Appellant also submitted a November 19, 2018 narrative medical report by Dr. Fiore
stating that there is a causal relationship between the factors of appellant’s federal employment
and her diagnosed condition, and specifically noting that appellant’s factors of federal employment
aggravated a preexisting condition. As stated earlier, OWCP denied appellant’s claim because the
evidence of record was insufficient to establish causal relationship between her diagnosed
8

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (IFECS). Id. at Chapter 2.1602.4b.
9

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

10

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

11

K.W., Docket No. 18-0970 (issued February 15, 2019).

12
S.W., Docket No. 18-1261 (issued February 22, 2019); E.M., Docket No. 09-0039 (issued March 3, 2009); D.K.,
59 ECAB 141 (2007).

6

condition and the accepted June 27, 2017 employment incident. Dr. Fiore’s report does not
address the relationship between appellant’s accepted June 27, 2017 employment incident and her
diagnosed condition. The Board has held that the submission of evidence or argument which does
not address the particular issue involved does not constitute a basis for reopening a case.13 Thus,
appellant was not entitled to a review of the merits of her claim based on the third above-noted
requirements under 20 C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.14
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 22, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2020
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

13

R.M., 19-0060 (issued April 15, 2019).

14

S.H., Docket No. 19-1115 (issued November 12, 2019).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, NORVIEW POST
OFFICE, Norfolk, VA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 12-68
Issued: May 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 18, 2011 appellant filed a timely appeal of the September 12, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error. Because more than one year elapsed between the most recent merit decision dated
August 13, 2007 and the filing of this appeal, the Board lacks jurisdiction to review the merits of
this case pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file a
Board appeal. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on or after November 19,
2008, a claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e).

On appeal, appellant contends that the medical evidence of record establishes that he
sustained a recurrence of disability commencing January 28, 2007 causally related to his
accepted May 10, 2006 employment injuries.
FACTUAL HISTORY
On November 21, 2006 OWCP accepted that on May 10, 2006 appellant, then a 39-yearold part-time flexible mail carrier, sustained a fractured lateral malleolus of the right ankle and
enthesopathy of the right ankle and tarsus when he slipped and fell down stairs while delivering
mail.
On March 6, 2007 appellant filed a claim alleging a recurrence of disability commencing
January 28, 2007.
In an August 13, 2007 decision, OWCP found the evidence of record insufficient to
establish that appellant sustained a recurrence of disability commencing January 28, 2007
causally related to his accepted May 10, 2006 employment injuries.
On March 5, 2011 appellant requested reconsideration.
In a March 11, 2011 decision, OWCP denied appellant’s March 5, 2011 request for
reconsideration, without a merit review, on the grounds that it was not timely filed and failed to
establish clear evidence of error in the last merit decision dated August 13, 2007.
On April 5, 2011 appellant appealed to the Board. In a May 1, 2011 letter, he advised the
Board that he would like to seek reconsideration and submit new evidence to OWCP.
In a May 16, 2011 letter, appellant requested reconsideration before OWCP. In a
March 24, 2011 letter, the employing establishment advised him that he was placed in an
absent-without-leave status because he failed to submit a written request for leave or written
notice or justification to substantiate his absence from work since January 27, 2007. A May 12,
2011 letter from the employing establishment approved appellant’s request for light-duty work
and provided instructions for reporting to work. Guidelines dated January 5, 2006 pertaining to
the employing establishment’s Employee and Labor Relations Manual (ELM) outlined
procedures for initiating compensation for a totally disabled employee.
Letters dated March 3, 2010 and June 14 and August 9, 2011 from a Department of
Veterans Affairs (VA) Medical Center advised appellant about his appointments scheduled on
April 26, 2010 and August 4 and 17, 2011, respectively. An April 1, 2011 medical slip indicated
that appellant provided blood and urine samples to a laboratory on that date.
In an order dated June 8, 2011, the Board dismissed appellant’s appeal.3

3

Docket No. 11-1128 (issued June 8, 2011).

2

In a decision dated September 12, 2011, OWCP denied appellant’s May 16, 2011 request
for reconsideration on the grounds that it was not timely filed and failed to establish clear
evidence of error in the last merit decision dated August 13, 2007.
LEGAL PRECEDENT
Section 8128(a) of FECA4 does not entitle a claimant to a review of an OWCP decision
as a matter of right.5 OWCP, through its regulations, has imposed limitations on the exercise of
its discretionary authority under section 8128(a). Section 10.607(a) of its implementing
regulations provide that an application for reconsideration must be sent within one year of the
date of OWCP decision for which review is sought.6
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.7
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.8 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.9 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of 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 error on the part of OWCP.12
To show 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 prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP decision.13 The
4

5 U.S.C. § 8128(a).

5

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

20 C.F.R. § 10.607(a).

7

Id. at § 10.607(b).

8

Nancy Marcano, 50 ECAB 110, 114 (1998).

9

Leona N. Travis, 43 ECAB 227, 241 (1991).

10

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

11

Leona N. Travis, supra note 9.

12

See Nelson T. Thompson, 43 ECAB 919 (1992).

13

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

3

Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP such that OWCP abused its discretion in denying merit review in
the face of such evidence.14
ANALYSIS
The Board finds that appellant did not file a timely request for reconsideration. Its
procedures provide that the one-year time limitation period for requesting reconsideration begins
on the date of the original OWCP decision.15 However, a right to reconsideration within one
year also accompanies any subsequent merit decision on the issues.16
The most recent merit decision in this case was OWCP’s August 13, 2007 decision,
which found that appellant did not sustain a recurrence of disability commencing January 28,
2007 due to his accepted May 10, 2006 employment-related injuries. As appellant’s May 16,
2011 letter requesting reconsideration of the merits of his claim by OWCP was made more than
one year after the August 13, 2007 merit decision,17 the Board finds that it was not timely filed.
The Board further finds that the evidence submitted by appellant in support of his
untimely May 16, 2011 request for reconsideration does not establish clear evidence of error on
the part of OWCP. The underlying issue in this case, whether he established a recurrence of
disability beginning January 28, 2007 causally related to the May 10, 2006 work injuries, is
medical in nature. The letters from the VA medical center indicated that appellant had medical
appointments scheduled on April 26, 2010 and August 4 and 17, 2011. The April 1, 2011
medical slip indicated that he provided blood and urine samples to a laboratory on that date.
This evidence did not address the relevant issue of whether appellant sustained the claimed
recurrence of disability due to the accepted injuries. Evidence that is not germane to the issue on
which the claim was denied is insufficient to demonstrate clear evidence of error.18 The Board
finds that the VA letters and medical slip are insufficient to prima facie shift the weight of the
evidence in favor of appellant’s claim.
Similarly, the employing establishment’s letters regarding disciplinary action taken
against appellant and his work assignment and its ELM guidelines concerning the initiation of
compensation for a totally disabled employee are not relevant to the issue in this case of causal
relation between his claimed recurrence of disability and the accepted injuries. The Board finds,
therefore, that this evidence is insufficient to establish clear evidence of error.

14

Thankamma Mathews, 44 ECAB 765, 770 (1993).

15

Supra note 6; see A.F., 59 ECAB 714 (2008).

16

D.G., 59 ECAB 455 (2008); Robert F. Stone, 57 ECAB 292 (2005).

17

Appellant had one year to request reconsideration by OWCP of its August 13, 2007 decision. See Federal
(FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.6a (January 2004).
18

F.R., Docket No. 09-575 (issued January 4, 2010).

4

The Board finds that the evidence submitted by appellant in support of his untimely
request for reconsideration does not constitute positive, precise and explicit evidence, which
manifests on its face that OWCP committed an error. Therefore, appellant failed to meet his
burden of proof to show clear evidence of error on the part of OWCP.
On appeal, appellant contended that the medical evidence of record established that he
sustained a recurrence of disability commencing January 28, 2007 causally related to his
accepted May 10, 2006 employment injuries. As noted, the Board does not have jurisdiction
over the merits of this appeal. The Board only has jurisdiction over the issue of whether OWCP
properly determined that appellant’s reconsideration request was untimely filed or established
clear evidence of error by OWCP. As explained, the evidence submitted on reconsideration is
insufficient to establish clear evidence of error by OWCP.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the September 12, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 9, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, DOMINICK V.
DANIELS PROCESSING & DISTRIBUTION
CENTER, Kearney, NJ, Employer
__________________________________________

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1527
Issued: March 29, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 20, 2020 appellant, through counsel, filed a timely appeal from a March 24,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3
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

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant submitted additional evidence to OWCP following the March 24, 2020 decision.
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.

ISSUE
The issue is whether appellant has met his burden of proof to establish expansion of the
acceptance of his claim to include bilateral carpal tunnel syndrome, bilateral knee arthritis, and
internal derangement of the right knee.
FACTUAL HISTORY
On November 9, 2010 appellant, then a 53-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on November 3, 2010 he sustained low back and right knee
injuries when loading a postal container onto a truck while in the performance of duty. He
explained that the truck pulled away without warning, causing the container to roll backward.
Appellant stopped work on November 3, 2010. On November 4, 2010 he received treatment in a
hospital emergency department.
In a November 13, 2010 report, Dr. F. Kennedy Gordon, Board-certified in internal and
sports medicine, provided a history of injury and treatment. He noted that appellant under went
arthroscopic right meniscal repair in January 2010. Dr. Gordon diagnosed right-sided cervical
strain, right superior trapezius strain, paralumbar sprain/strain, lower right abdominal strain, right
groin strain, right medial collateral ligament sprain, and history of right meniscal tear. 4
On November 23, 2010 OWCP accepted the claim for lumbar, thoracic, and cervical spine
sprains, sprain of the right lateral collateral ligament, and a groin sprain. 5 It paid appellant wageloss compensation on the supplemental rolls commencing December 26, 2010 and on the periodic
rolls commencing September 25, 2011.6
On July 1, 2011 OWCP referred appellant for a second opinion evaluation and report from
Dr. Jeffrey F. Lakin, a Board-certified orthopedic surgeon. In a July 22, 2011 report, Dr. Lakin
opined that the accepted right knee injury remained active. He recommended right knee
arthroscopy.
On July 7, 2013 appellant returned to modified duty as a mail handler for two hours a day.
OWCP paid appellant wage-loss compensation for the remaining hours on the supplemental rolls
commencing July 7, 2013.
In an August 1, 2013 report, Dr. Mark A.P. Filippone, a Board-certified physiatrist,
reviewed a history of injury and treatment. He noted a January 2010 right knee arthroscopy prior
to the accepted injury and a 2003 nonoccupational left knee arthroscopy. On examination,
Dr. Filippone noted: bilaterally-positive Tinel’s and Phalen’s signs over the median nerve at the
wrists; diminished pinprick sensation in the right thumb, index, and middle fingers; decreased
4

Dr. Gordon provided periodic reports dated from December 6, 2010 through May 31, 2013 noting continued right
medial collateral ligament pain and a right meniscal tear requiring surgical repair. A December 30, 2010 magnetic
resonance imaging (MRI) scan of the right knee demonstrated prior meniscal surgery, tear or retear of the posterior
horn, joint effusion, chondromalacia of the patella, diffuse thickening of the patellar tendon, spurring of the p atellar
poles, and a posterior popliteal cyst.
5

Appellant underwent right inguinal hernia repair in February 2016.

6

From June 23, 2011 through February 14, 2013, appellant underwent a series of OWCP-authorized cervical and
lumbar injections, and stereotactic radiofrequency neurotomy of the right L3, L4, L5, S1, S2, and S3 nerve roots.

2

pinprick sensation over the distal volar aspect of all five left fingers and hypothenar eminence;
limited range of motion throughout the spine; right knee swelling; an equivocally-positive drawer
sign in the right knee; and crepitation over the right medial meniscus. He diagnosed cervical and
thoracic radiculitis, right inguinal hernia. and internal derangement of the right knee. Dr. Filippone
opined that all of these diagnoses “need to be accepted by [OWCP].”7
In a September 12, 2013 report, Dr. David Deramo, a Board-certified orthopedic surgeon,
provided a history of January 2010 right knee surgery and the accepted November 3, 2010
employment injury. He diagnosed right knee pain, acute right medial meniscus tear, internal
derangement of the right knee, and patellar chondromalacia.
In a September 13, 2013 report, Dr. Filippone opined that electromyography/nerve
conduction velocity (EMG/NCV) studies of the bilateral upper extremities demonstrated bilateral
carpal tunnel syndrome. 8
Appellant stopped work on March 7, 2014 and did not return.
On June 17, 2014 Dr. Marc S. Arginteanu, a Board-certified neurosurgeon, performed
OWCP-authorized partial L5 laminectomy, partial S1 laminectomy, and L5-S1 discectomy.
By decision dated June 25, 2014, OWCP accepted a recurrence of disability and a need for
medical treatment commencing March 7, 2014. It expanded the acceptance of the claim to include
lumbosacral spondylosis without myelopathy.
By decision dated July 9, 2014, OWCP accepted another recurrence of disability effective
June 17, 2014. It authorized payment of wage-loss compensation for partial disability from
May 31 through June 16, 2014. OWCP placed appellant on the periodic compensation rolls
retroactive to June 29, 2014.
Dr. Filippone provided periodic reports dated from September 5, 2014 through June 30,
2015 diagnosing cervical, 9 thoracic, and lumbar radiculopathy; bilateral carpal tunnel syndrome
with positive Tinel’s and Phalen’s signs; and internal derangement of the right knee. He opined
that these conditions were causally related to the accepted November 3, 2010 employment injury.10
7

An August 19, 2013 MRI scan of the right knee demonstrated mild tricompartmental osteoarthritis, chronic
thickening of the medial collateral ligament and patellar tendon, persistent tear of the posterior horn of the medial
meniscus, persistent radial tear of the lateral meniscus, chondromalacia, and a popliteal cyst and a focal area of
inflammation in the superolateral aspect of Hoffa’s fat pad. August 21, 2013 MRI scans of the cervical and thoracic
spine demonstrated disc bulges at C5-6, C6-7, and C7-T1, thoracic kyphosis and spondylosis deformans, and multiple
Shmorl’s nodes in the lower thoracic region.
8

In November and December 2013 appellant underwent a series of OWCP-authorized lumbar and lumbosacral
injections.
9

A January 13, 2015 MRI scan of the cervical spine demonstrated a C4-5 broad-based posterior disc bulge, C5-6
broad-based midline disc herniation with mild spinal stenosis, board-based posterior disc bulge at C6-7, and C7-T1
asymmetric disc bulge to the right. A May 20, 2015 MRI scan of the right knee demonstrated postoperative changes
from prior partial medial meniscectomy, increased cartilage loss, and patellar tracking disorder.
10

Appellant underwent a series of OWCP-authorized epidural steroid injections from March 26 through
August 13, 2015.

3

In a June 8, 2015 report, Dr. Yaser El-Gazzar, an orthopedic surgeon, noted the onset of
right knee pain after the November 3, 2010 employment injury. On examination, he observed
crepitance of both knees. Dr. El-Gazzar diagnosed patellofemoral syndrome, a right meniscal tear,
acquired genu varum deformity, and synovitis status postemployment injury. He administered a
series of cortisone injections and prescribed a knee brace.
Thereafter, OWCP referred appellant to a second opinion physician. In a July 2, 2015
report, Dr. Timothy Henderson, a Board-certified orthopedic surgeon, reviewed a statement of
accepted facts (SOAF) and the medical record and noted findings on examination. He opined that
the accepted cervical spine injury caused “double crush” bilateral carpal tunnel syndrome due to
compression of cervical nerve roots superimposed on mild compression of the median nerve at the
wrists.
Dr. Filippone submitted reports dated July 31, 2015 through September 26, 2017 finding
appellant totally disabled from work due to cervical, 11 thoracic, and lumbar radiculopathy, bilateral
carpal tunnel syndrome, and internal derangement of the right knee. He op ined that these
conditions were caused by the accepted November 3, 2010 employment injury.
Thereafter, OWCP referred appellant for a second opinion report to Dr. Stanley Askin, a
Board-certified orthopedic surgeon. In an October 6, 2017 report, Dr. Askin reviewed a SOAF
and the medical records. On examination, he observed bilaterally-positive Tinel’s sign at the wrist,
and limited active range of motion throughout the spine. Dr. Askin opined that the accepted
employment conditions had resolved without residuals. He attributed appellant’s spinal and
musculoskeletal complaints to obesity “and not consequential to the fact that he fell on
November 3, 2010.” Dr. Askin concluded that the acceptance of appellant’s claim “should not be
expanded to include any other conditions for the November 3, 2010, incident.”
In reports dated November 20, 2017, Dr. Filippone noted bilateral hand numbness
secondary to the use of a cane. 12 In reports dated December 19, 2017, he noted that both knees
were tender and effused. Dr. Filippone opined that appellant urgently required right knee
arthroscopy.
In a January 26, 2018 letter, appellant, through counsel, requested that OWCP expand the
acceptance of the claim to include bilateral carpal tunnel syndrome, based on Dr. Henderson’s
July 2, 2015 opinion.
In a February 14, 2018 report, Dr. Paul M. Brisson, a Board-certified orthopedic surgeon,
related appellant’s complaints of increased numbness and weakness in both hands. He opined that
appellant had sustained cervical and lumbar spine injuries in the November 3, 2010 employment
incident. In a March 14, 2018 report, Dr. Brisson diagnosed bilateral radiculopathy at C5, C6, C7,
and L5-S1.

11

In an October 20, 2015 report, Dr. Filippone noted that a May 6, 2015 EMG/NCV study of the bilateral upper
extremities demonstrated right C5, C6, and C7 cervical radiculopathy and left C5-6 cervical radiculopathy.
12

A November 29, 2017 MRI scan of the right knee demonstrated status post partial lateral meniscectomy,
“[r]ecurrent tear within the posterior horn of the lateral meniscus, “[n]ew vertical tear within the body and posterior
horn” of the medial meniscus, and a small ganglion cyst.

4

OWCP found a conflict of medical opinion between Dr. Filippone, for appellant, and
Dr. Askin, for the government, regarding whether acceptance of the claim should be expanded to
include additional spinal conditions, bilateral carpal tunnel syndrome, and derangement of the right
knee, and whether appellant had continuing work-related disability or required further medical
treatment. It referred appellant, an updated statement of accepted facts (SOAF), and the medical
record to Dr. Dean Carlson, a Board-certified orthopedic surgeon, to resolve the conflict of opinion
as the impartial medical examiner (IME).
In a February 15, 2018 report, Dr. Carlson diagnosed resolved cervical, thoracic, and
lumbar sprains, status post lumbar discectomy, a resolved L5-S1 disc herniation, resolved right
lateral collateral ligament sprain, nonoccupational bilateral carpal tunnel syndrome, and
nonoccupational osteoarthritis of both knees.
In a June 4, 2018 report, Dr. Imran Ashraf, a Board-certified orthopedic surgeon,
diagnosed a work-related right knee injury and post-traumatic osteoarthritis. He recommended
right knee surgery.
By notice dated July 18, 2018, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits as the accepted employment conditions had ceased. It afforded
him 30 days to submit additional evidence or argument.
Appellant, through counsel, contended in an August 13, 2018 statement that Dr. Carlson
provided insufficient medical rationale. He submitted reports from Dr. Filippone dated from
July 18 through August 16, 2018 reiterating previous diagnoses.
By decision dated August 29, 2018, OWCP denied expansion of the acceptance of
appellant’s claim to include bilateral carpal tunnel syndrome, internal derangement of the right
knee, bilateral knee arthritis, right inguinal hernia, herniated/bulging discs of the cervical and
lumbar spine, and cervical and lumbar degenerative disc disease, based on Dr. Carlson’s opinion
as the special weight of the medical evidence.
By decision dated September 7, 2018, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day, based on Dr. Carlson’s opinion as the
special weight of the medical evidence.
Appellant, through counsel timely requested a hearing before a representative of OWCP’s
Branch of Hearings and Review with regard to both the expansion and termination decisions.
During the hearing, held on February 21, 2019, counsel contended that OWCP should have
accepted bilateral carpal tunnel syndrome/double crush syndrome based on Dr. Henderson’s
July 2, 2015 opinion instead of posing the same question to Dr. Askin. He submitted additional
reports from Dr. Filippone dated September 13, 2018 through April 25, 2019, which reiterated that
the November 3, 2010 employment injuries caused bilateral carpal tunnel syndrome and internal
derangement of the right knee.
By decision dated May 8, 2019, OWCP’s hearing representative reversed the September 7,
2018 termination decision, set aside the August 29, 2018 expansion decision, and remanded the
case for additional development.

5

On remand, OWCP referred appellant, an updated SOAF, and the medical record to
Dr. Howard M. Pecker, Board-certified in orthopedic surgery and sports medicine, for an impartial
medical opinion. In an August 6, 2019 report, Dr. Pecker reviewed the medical record and SOAF.
On examination of appellant, he observed triggering of the index and long fingers of the right hand,
and a palpable medial osteophyte of the right knee. Dr. Pecker noted that there was no evidence
of carpal tunnel syndrome. He diagnosed degenerative cervical and lumbar disc disease, and
osteoarthritis of both knees. Dr. Pecker opined that all conditions present on examination were
age-related, without contribution by physical trauma. He returned appellant to full-time medium
duty.
By decision dated September 5, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day based on Dr. Pecker’s August 6, 2019 report
as the special weight of the medical evidence.
By separate decision also dated September 5, 2019, OWCP denied expansion of the
acceptance of appellant’s claim to include bilateral carpal tunnel syndrome, internal derangement
of the right knee, bilateral knee arthritis, herniated/bulging cervical and lumbar discs, cervical and
lumbar degenerative disc disease, and inguinal hernia based on Dr. Pecker’s opinion as the special
weight of the medical evidence.
On September 12, 2019 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review with regard to both September 5, 2019
decisions. The hearing was held on January 17, 2020.
OWCP subsequently received a July 24, 2019 report, wherein Dr. Serge Menkin, Boardcertified in physiatry and pain medicine, provided a history of injury and treatment. On
examination, he noted positive cervical, thoracic, and lumbar facet loading maneuvers, positive
Apley’s maneuver and McMurray’s sign in the right knee, and a positive right patellofemoral grind
test. He diagnosed lumbar radiculopathy, lumbar facet pain, cervicalgia, thoracic pain, and right
knee pain. Dr. Menkin reiterated these diagnoses in reports through December 18, 2019.
By decision dated March 24, 2020, OWCP’s hearing representative reversed the
September 5, 2019 termination decision. He remanded the case to obtain a supplemental report
from Dr. Pecker on whether the accepted November 3, 2010 employment injury had caused or
contributed to herniated/bulging cervical and lumbar discs, cervical and lumbar degenerative disc
disease, and right inguinal hernia. The hearing representative affirmed the September 5, 2019
denial of expansion of the acceptance of appellant’s claim to include bilateral carpal tunnel
syndrome, internal derangement of the right knee, and bilateral knee arthritis, based on
Dr. Pecker’s report as the special weight of the medical evidence.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.13
13

D.B., Docket No. 20-1280 (issued March 2, 2021); R.R., Docket No. 19-0086 (issued February 10, 2021); K.T.,
Docket No. 19-1718 (issued April 7, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

6

Causal relationship is a medical question that requires medical opinion evidence to resolve
the issue.14 The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the accepted
employment injury.15
To establish causal relationship between the condition as well as any attendant disability
claimed and the employment injury, an employee must submit rationalized medical evid ence.16
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant. 17 The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion.18
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The rules that come
into play are essentially based upon the concepts of direct and natural results and of the claimant’s
own conduct as an independent intervening cause. The basic rule is that a subsequent injury,
whether an aggravation of the original injury or a new and distinct injury, is compensable if it is
the direct and natural result of a compensable primary injury.19
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.20
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, OWCP
shall appoint a third physician (known as a referee physician or IME) who shall make an
examination. 21 This is called a referee examination and OWCP will select a physician who is
14

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

15

Id.

16

T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
17

D.S., Docket No. 18-0353 (issued February 18, 2020); T.K., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams,
41 ECAB 345 (1989).
18

See P.M., Docket No. 18-0287 (issued October 11, 2018).

19

D.B., supra note 14; see V.K., Docket No. 19-0422 (issued June 10, 2020).

20

B.P., Docket No. 19-1376 (issued January 4, 2021); M.O., Docket No. 18-0229 (issued September 23, 2019);
J.F., Docket No. 19-0456 (issued July 12, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3e (January 2013).
21

5 U.S.C. § 8123(a); L.S., Docket No. 19-1730 (issued August 26, 2020); M.S., 58 ECAB 328 (2007).

7

qualified in the appropriate specialty and who has no prior connection with the case.22 When there
exist opposing medical reports of virtually equal weight and rationale and the case is referred to
an IME for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, must be given special weight. 23
ANALYSIS
The Board finds that this case is not in posture for a decision.
Dr. Pecker, the IME, opined in his August 6, 2019 report that appellant’s bilateral knee
conditions were age-related with no contribution from physical trauma. However, he did not
identify the conditions that necessitated the prior bilateral knee surgeries, or explain whether the
accepted right medial collateral ligament sprain would have had any effect on those degenerative
processes or caused an acute meniscal tear. Additionally, in contrast to appellant’s treating
physicians, Dr. Pecker opined that there were no objective findings of carpal tunnel syndrome. He
did not address the reports of Dr. Filippone or Dr. Henderson, which documented the presence of
bilateral carpal tunnel syndrome and supported causal relationship. As Dr. Pecker did not provide
medical rationale, his opinion requires clarification.24
In a situation where OWCP secures an opinion from an IME for the purpose of resolving
a conflict in the medical evidence and the opinion from such examiner requires clarification and/or
elaboration, OWCP has the responsibility to secure a supplemental report from the exa miner for
the purpose of correcting the defect in the original opinion. 25
For the above-described reasons, the opinion of Dr. Pecker requires clarification.
Therefore, in order to address the unresolved conflict in the medical opinion evidence, the Board
will remand the case to OWCP for a supplemental opinion regarding whether OWCP should
expand its acceptance of the claim to include bilateral carpal tunnel syndrome , internal
derangement of the right knee, and bilateral knee osteoarthritis. If Dr. Pecker is unable to clarify
his opinion or if his requested supplemental report is also lacking rationale, OWCP shall refer
appellant to a new IME for the purpose of obtaining a rationalized medical opinion on the issue. 26
After this and other such further development as deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

22

20 C.F.R. § 10.321; P.B., Docket No. 20-0984 (issued November 25, 2020); R.C., 58 ECAB 238 (2006).

23

R.R., supra note 14; see Y.I., Docket No. 20-0263 (issued November 30, 2020); Darlene R. Kennedy, 57 ECAB
414 (2006).
24

B.P., supra note 21.

25

T.C., Docket No. 20-1170 (issued January 29, 2021); S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy
Lackner (Jack D. Lackner), 40 ECAB 232 (1988).
26

M.D., Docket No. 19-0510 (issued August 6, 2019); Harold Travis, 30 ECAB 1071 (1979).

8

ORDER
IT IS HEREBY ORDERED THAT the March 24, 2020 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 29, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Federal Way, WA, Employer
__________________________________________
Appearances:
Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 14-746
Issued: October 17, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On February 14, 2014 appellant, through counsel, filed a timely appeal from an
October 1, 2013 decision of the Office of Workers’ Compensation Programs (OWCP), which
found that his reconsideration request was untimely filed and did not present clear evidence of
error. The appeal was docketed as number 14-746.
OWCP initially denied appellant’s occupational disease claim on April 5, 2012.
Appellant, through counsel, requested a telephonic hearing, after which an OWCP hearing
representative issued a September 19, 2012 decision that affirmed the April 5, 2012 decision.
Appellant’s counsel requested reconsideration on September 18, 2013. The request was received
by OWCP on September 19, 2013. Appellant’s counsel submitted new arguments and new
medical evidence. In its October 1, 2013 decision, OWCP found that the request was untimely
filed and failed to present clear evidence of error.
The Board has duly considered the matter and finds that appellant’s request for
reconsideration was timely. Section 10.607(a) of the implementing regulations provide that an
application for reconsideration must be received within one year of the date of OWCP decision
for which review is sought.1 In this case, appellant sought review of the September 19, 2012
decision and his request for reconsideration was received by OWCP on September 19, 2013. In
1

20 C.F.R. § 10.607(a).

computing the time for requesting reconsideration, the date of the event from which the
designated time period begins to run shall not be included when computing the time period.
However, the last day of the period shall be included unless it is a Saturday, a Sunday or a legal
holiday.2 Thus, the time for requesting reconsideration of OWCP’s September 19, 2012 decision
began to run on September 20, 2012, and ended on September 19, 2013. Thus, the
reconsideration request was timely as it was received by OWCP on September 19, 2013, exactly
one year after the last merit decision. Because appellant filed a timely reconsideration request,
the case will be remanded to OWCP for application of the standard for reviewing timely requests
for reconsideration.3 The “clear evidence of error” standard utilized by OWCP in its October 1,
2013 decision is appropriate only for untimely reconsideration requests. After such further
development as OWCP deems necessary, it should issue an appropriate decision to protect
appellant’s appeal rights.
IT IS HEREBY ORDERED THAT the October 1, 2013 decision is set aside and
remanded.
Issued: October 17, 2014
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2

Debra McDavid, 57 ECAB 149 (2005); John B. Montoya, 43 ECAB 1148 (1992).

3

See 20 C.F.R. § 10.606(b).

2