United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF THE ARMY, U.S.
MILITARY ACADEMY, West Point, NY,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 21-1246
Issued: September 29, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On August 16, 2021 appellant filed an appeal from a January 28, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1246.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP ’s
decision.2
The 180th day following the January 28, 2021 decision was July 27, 2021. As appellant
did not file an appeal with the Board until August 16, 2021, more than 180 days after the
January 28, 2021 OWCP decision, the Board finds that the appeal docketed as No. 21-1246 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1246 is dismissed.
Issued: September 29, 2021
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

3

Id. at § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, JOINT BASE
PEARL HARBOR-HICKAM, , Honolulu, HI,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 20-1217
Issued: May 7, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On May 13, 2020 appellant filed a timely appeal from an April 23, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish greater than two
percent left monaural hearing loss for which he previously received a schedule award.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the April 23, 2020 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.

FACTUAL HISTORY
On November 26, 2019 appellant, then a 62-year-old meat cutter, filed an occupational
disease claim (Form CA-2) alleging that he sustained binaural hearing loss due to factors of his
federal employment, including noise. He noted that he first became aware of the condition and
realized its relation to his federal employment on January 1, 2010. On the reverse side of the claim
form the employing establishment indicated that appellant was last exposed to the conditions
alleged to have caused his hearing loss on December 5, 2019.
In an undated letter, appellant related that from September 1980 to the present he worked
as a meat cutter for the Federal Government and was exposed to noise from a band saw, a
hamburger grinder, and refrigerator fans for eight hours a day. He indicated that he was provided
with earplugs.
On January 30, 2020 OWCP referred appellant to Dr. Ronald Peroff, a Board-certified
otolaryngologist, for a second opinion evaluation. In a March 2, 2020 report, Dr. Peroff noted
appellant’s physical examination findings and indicated that he had reviewed audiograms dated
April 17, 2019 and February 25, 2020. He reviewed appellant’s February 25, 2020 audiogram by
Dr. Howard Tamashiro, an audiologist, which recorded audiometric findings at the frequency
levels of 500, 1,000, 2,000, and 3,000 Hertz (Hz) of losses for the right ear of 15, 15, 10, and 20
decibels (dBs) and for the left ear of 10, 20, 20, and 55 dBs, respectively.
Using the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides),3 Dr. Peroff calculated appellant’s right ear monaural
hearing impairment by averaging appellant’s right ear hearing losses of 15, 15, 10, and 20 dBs at
500, 1,000, 2,000, and 3,000 Hz, respectively, which totaled 15. After subtracting out a 25 dB
fence, he multiplied the remaining zero balance by 1.5 to calculate a zero percent right ear
monaural hearing loss. Dr. Peroff calculated appellant’s left ear monaural hearing impairment by
averaging appellant’s left ear hearing losses of 10, 20, 20, and 55 dBs at 500, 1,000, 2,000, and
3,000 Hz, respectively, which totaled 26.25. After subtracting out a 25 dB fence, he multiplied
the remaining 1.25 balance by 1.5 to calculate 1.9 percent left ear monaural hearing loss.
Dr. Peroff calculated appellant’s binaural hearing impairment by multiplying appellant’s right ear
monaural hearing loss of 0 by 5, adding appellant’s left ear monaural hearing loss of 1.9, and
dividing by six to equal .32. In a tinnitus handicap inventory, appellant indicated that because of
his tinnitus it was difficult for him to concentrate and hear people, and he related that his tinnitus
interfered with his everyday activities. Appellant scored a 78 on the tinnitus handicap inventory,
which Dr. Peroff indicated was catastrophic and equaled 5 percent impairment.
Dr. Peroff diagnosed noise-induced sensorineural hearing loss with tinnitus and he
indicated that appellant’s sensorineural hearing loss and tinnitus were in part or fully due to
appellant’s federal employment noise exposure. He recommended amplification. Dr. Peroff
opined that appellant’s federal workplace noise exposure was sufficient in intensity and duration
to have caused his hearing loss.
By decision dated April 3, 2020, OWCP accepted appellant’s claim for the condition of
bilateral noise effects on the inner ear.

3

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

2

On April 10, 2020 Dr. Jeffrey Israel, a Board-certified otolaryngologist serving as
OWCP’s district medical adviser (DMA), indicated that he reviewed appellant’s SOAF and
medical records. He stated that appellant’s audiograms from April 17, 2019 and February 25, 2020
revealed left ear hearing loss at 3,000 Hz, which suggested sensorineural hearing loss at least in
part due to noise-induced work-related acoustic trauma. Dr. Israel opined that appellant’s MMI
was on February 25, 2020, the date of his last audiogram. He applied the audiometric data to
OWCP’s standard for evaluating hearing loss under the A.M.A., Guides, and he indicated that he
agreed with Dr. Peroff’s calculations of appellant’s right ear monaural hearing loss and left ear
monaural hearing loss of 0 percent and 1.9 percent, respectively, and provided his calculations.
Dr. Israel stated that he disagreed with Dr. Peroff’s binaural hearing loss calculation because
appellant’s five percent tinnitus rating could not be added to his zero percent binaural rating.
On April 14, 2020 appellant filed a schedule award claim (Form CA-7).
By decision dated April 23, 2020, OWCP granted appellant a schedule award for two
percent left monaural hearing loss. The award ran for 1.04 weeks for the period February 25 to
March 3, 2020.
LEGAL PRECEDENT
The schedule award provisions of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.6 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides.7
For hearing loss claims, the Board requires that the employee undergo both audiometric
and otologic examination, that the audiometric testing precede the otologic examination, and that
the audiometric testing be performed by an appropriately certified audiologist. The Board has
explained that all audiological equipment authorized for testing meet the calibration protocol
contained in the accreditation manual of the American Speech and Hearing Association. The
audiometric test results must include both bone conduction and pure tone air conduction
thresholds, speech reception thresholds and monaural discrimination scores, and the

4

Supra note 2.

5

20 C.F.R. § 10.404.

6

Id.; T.O., Docket No. 18-0659 (issued August 8, 2019); Jacqueline S. Harris, 54 ECAB 139 (2002).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); id. at Chapter 3.700.2 and Exhibit 1 (January 2010).

3

otolaryngologist’s report must include: date and hour of examination, date and hour of employee’s
last exposure to loud noise, and a statement of the reliability of the tests.8
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.9 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are averaged. Then, the fence of 25 dBs is deducted because, as the A.M.A., Guides
points out, losses below 25 dBs result in no impairment in the ability to hear everyday speech
under everyday conditions.10 The remaining amount is multiplied by a factor of 1.5 to arrive at
the percentage of monaural hearing loss.11 The binaural loss is determined by calculating the loss
in each ear using the formula for monaural loss, the lesser loss is multiplied by five, then added to
the greater loss and the total is divided by six to arrive at the amount of the binaural hearing loss.12
The Board has concurred in OWCP’s adoption of this standard for evaluating hearing loss.13 The
policy of OWCP is to round the calculated percentage of impairment to the nearest whole
number.14 OWCP’s procedures provide that percentages should not be rounded until the final
percent for award purposes is obtained. Fractions should be rounded down from .49 and up from
.50.15
The A.M.A., Guides provides that if tinnitus interferes with activities of daily living,
including sleep, reading (and other tasks requiring concentration), enjoyment of quiet recreation,
and emotional well-being, up to five percent may be added to a measurable binaural hearing
impairment.16
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of permanent
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified.17
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish greater than two
percent left monaural hearing loss, for which he previously received a schedule award.

8

W.G., Docket No. 17-1090 (issued March 12, 2018).

9

T.O., supra note 6; R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R.
§ 10.404.
10

Supra note 3 at 250.

11

Id.

12

Id.

13

T.O., supra note 6; E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

14

H.R., Docket No. 19-0860 (October 17, 2019).

15

Id.; Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4 (January 2010).

16

A.M.A., Guides 249.

17

See supra note 7 at Chapter 2.808.6(f).

4

OWCP referred appellant to Dr. Peroff for a second opinion examination.18 Dr. Peroff’s
March 2, 2020 second opinion report set forth his physical examination findings, and he opined
that appellant’s hearing loss was due, partly or fully, to his workplace noise exposure. He reviewed
appellant’s February 25, 2020 audiogram conducted by Dr. Tamashiro, an audiologist, which
recorded audiometric findings at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz of right
ear dBs losses of 15, 15, 10, and 20 and of left ear dBs losses of 10, 20, 20, and 55, respectively.
Using the A.M.A., Guides, Dr. Peroff calculated that appellant’s right ear monaural hearing
impairment by averaging appellant’s right ear hearing losses of 15, 15, 10, and 20 dBs at 500,
1,000, 2,000, and 3,000 Hz, respectively, which totaled 15. After subtracting out a 25 dB fence,
he multiplied the remaining 0 balance by 1.5 to calculate a zero percent right ear monaural hearing
loss. Dr. Peroff calculated that appellant’s left ear monaural hearing impairment by averaging
appellant’s right ear hearing losses of 10, 20, 20, and 55 dBs at 500, 1,000, 2,000, and 3,000 Hz,
respectively, which totaled 26.25. After subtracting out a 25 dB fence, he multiplied the remaining
1.25 balance by 1.5 to calculate 1.9 percent left ear monaural hearing loss. Dr. Peroff indicated
that appellant scored a 78 on a tinnitus handicap inventory, which he indicated was catastrophic
and equaled 5 percent impairment. He calculated appellant’s binaural hearing impairment by
multiplying appellant’s right ear monaural hearing loss of zero by five, adding appellant’s left ear
monaural hearing loss of 1.9, and dividing by 6 to equal .32, and then added appellant’s 5 percent
loss for tinnitus.
In reviewing Dr. Peroff’s calculations, the DMA, Dr. Israel, indicated that he agreed with
his calculations of appellant’s right ear monaural hearing loss and left ear monaural hearing loss
calculations of 0 percent and 1.9 percent, respectively, and he provided his calculations. He stated
that he disagreed with Dr. Peroff’s binaural hearing loss calculation because appellant’s five
percent tinnitus rating could not be added to his zero percent binaural rating.
The Board finds that Dr. Israel properly evaluated appellant’s hearing loss. As previously
noted, the A.M.A., Guides provides that up to five percent may be added to a measurable binaural
hearing impairment.19 However, the Board has held that tinnitus may not be added to an
impairment rating for hearing loss under the sixth edition of the A.M.A., Guides unless such
hearing loss is ratable.20 Appellant did not have ratable binaural hearing loss. OWCP’s procedures
round the calculated percentage of impairment to the nearest whole number, with fractions rounded
down from .49.21 As such, the Board therefore finds that Dr. Israel was correct in calculating that
appellant’s binaural hearing loss of .3 should be rounded to zero. As appellant had no ratable
binaural loss, no tinnitus impairment could be added.
The Board, therefore, finds that appellant has not met his burden of proof to establish
greater than two percent left monaural hearing loss for which he previously received a schedule
award.

18

See E.E., Docket No. 19-1763 (issued March 24, 2020); J.G., Docket No. 12-1469 (issued January 11, 2013).

19

See supra note 16.

20

G.T., Docket No.19-1705 (issued April 16, 2020).

21

Supra notes 14 and 15.

5

Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than two
percent left-sided monaural hearing loss, for which he previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 23, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 7, 2021
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, FEDERAL
CORRECTIONAL CENTER, Petersburg, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 19-0559
Issued: July 19, 2019

Case Submitted on the Record

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

JURISDICTION
On January 16, 2019 appellant filed a timely appeal from a September 20, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
has elapsed from OWCP’s last merit decision, dated March 27, 2018, to the filing of this appeal,
pursuant

1

The Board notes that during the pendency of this appeal, OWCP’s Branch of Hearings and Review issued a
March 14, 2019 decision which denied appellant’s request for a hearing on the same issue addressed in the
September 20, 2018 nonmerit decision currently on appeal. OWCP’s March 14, 2019 decision is null and void as the
Board and OWCP may not simultaneously exercise jurisdiction over the same issue(s) in a case on appeal. 20 C.F.R.
§§ 501.2(c)(3), 10.626; see e.g., M.C., Docket No. 18-1278 (issued March 7, 2019); Lawrence Sherman, 55 ECAB
359, 360 n.4 (2004).

to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 20, 2017 appellant, then a 42-year-old correctional officer, filed an
occupational disease claim (Form CA-2) alleging that he developed mental stress due to factors of
his federal employment. He attributed his condition to being removed from his post, being
informed that he was under investigation, and never being informed of the reason for or the type
of investigation. Appellant first became aware of his emotional condition and first attributed his
condition to factors of his federal employment on September 16, 2016.
In his narrative statement, appellant alleged that he was removed from his B-North post
and was accused of bringing a cell phone into the employing establishment. He alleged that he
was also found to be absent without leave in August 2015 when he was involved in a motor vehicle
accident. The investigation was closed on January 5, 2017, but the employing establishment
refused to explain why appellant was moved. Appellant did not believe that he should return to
work inside the employing establishment as he was afraid that he would be “set up” by
management, as he believes they are sabotaging his career. He noted that he had taken advantage
of the Employee Assistance Program and was taking medication due to his employment.
On November 6, 2017 James F. Jacobs, Ph.D., a licensed marriage and family counselor,
diagnosed generalized anxiety disorder and depressive disorder. He noted that appellant attributed
his condition to an unsafe work environment.
In a November 17, 2017 development letter, OWCP advised appellant of the deficiencies
in his claim. It requested additional factual and medical evidence from him and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to respond.
On December 13, 2017 Dr. John Clay, a Board-certified family practitioner, diagnosed
generalized anxiety disorder as well as major depressive disorder.
By decision dated March 27, 2018, OWCP denied appellant’s emotional condition claim
finding that the evidence submitted was insufficient to establish a compensable factor of
employment. It noted that the incidents alleged were administrative actions of the employing
2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the September 20, 2018 decision, and on appeal, 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.

2

establishment without a showing of error or abuse. OWCP concluded, therefore, that the
requirements had not been met to establish that “an emotional condition that arose during the
course of employment and within the scope of compensable work factors” as defined by FECA.
On August 28, 2019 appellant requested reconsideration of the March 27, 2018 decision.
In support of this request, he resubmitted Mr. Jacob’s November 16 and December 7, 2017 notes.
Appellant also resubmitted Dr. Clay’s December 13, 2017 note.
Appellant provided a report dated July 20, 2018 from Dr. Curtis R. Bryan, a Boardcertified psychiatrist, diagnosing major depressive episode with anxious distress. Dr. Bryan found
that appellant was currently not fit for duty. Appellant also submitted an October 27, 2017 injury
or illness incident report on which he reported that he was working his assigned post at B-North
when he was pulled from his assigned post by the employing establishment, was advised by the
employing establishment that he was under investigation, but was never informed of the reason
for the investigation. He alleged that he had developed mental stress due to these actions of the
employing establishment.
By decision dated September 20, 2018, OWCP denied appellant’s request for
reconsideration pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.6
Upon receipt of a timely application, OWCP exercises its discretion in accordance with the
guidelines set forth in section 10.606(b)(3) of the implementing federal regulations, which
provides that a claimant may obtain review of the merits of his or her written application for
reconsideration, including all supporting documents, sets forth arguments and contains evidence
which either: (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

4

Supra note 1 at 8128(a).

5

20 C.F.R. § 10.607.

6
C.C., Docket No. 18-0316 (issued March 14, 2019); 20 C.F.R. § 10.607(a). For merit decisions issued on or after
August 29, 2011, a request for reconsideration must be received by OWCP within one year of OWCP’s decision for
which review is sought. 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.
7

20 C.F.R. § 10.606(b)(3).

3

Section 10.608(b) provides that any application for review of the merits of the claim which
does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP
without review of the merits of the claim.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s timely August 28, 2019 request for reconsideration did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered by OWCP. Consequently, he was not entitled to a review of
the merits based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
With the August 28, 2019 reconsideration request, appellant provided Dr. Bryan’s July 20,
2018 medical report. This report fails to address the underlying merit issue of whether appellant
implicated and substantiated a compensable factor of employment as necessary to establish an
emotional condition in the performance of duty. The submission of evidence or argument which
does not address the particular issue involved does not constitute a basis for reopening a case.9
The Board notes that the November 6 and December 7 and 13, 2017 reports were
previously considered by OWCP. Additionally, the October 27, 2017 injury or illness incident
report duplicated statements from appellant already addressed in the prior decision. The Board
has held that evidence which repeats or duplicates evidence already in the case record does not
constitute a basis for reopening a case.10
Because appellant’s request for reconsideration did not include relevant and pertinent new
evidence not previously considered he is not entitled to a review of the merits based on the third
requirement under section 10.606(b)(3).11
The Board accordingly 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.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

8

Id. at § 10.608(b).

9

M.B., Docket No. 17-1980 (issued May 14, 2019); E.G., Docket No. 18-0270 (issued August 24, 2018); Eugene F.
Butler, 36 ECAB 393, 398 (1984).
10

M.B., id.; D.K., 59 ECAB 141 (2007).

11

20 C.F.R. § 10.606(b)(3)(iii); see D.P., Docket No. 17-0290 (issued May 14, 2018).

4

ORDER
IT IS HEREBY ORDERED THAT the September 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 19, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Columbia, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0316
Issued: April 13, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 8, 2015 appellant filed a timely appeal from a November 13, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed between OWCP’s underlying March 6, 2015 merit decision and 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 appellant’s claim.2
ISSUE
The issue is whether OWCP properly determined that appellant had abandoned her
request for a hearing with an OWCP hearing representative.
1
2

5 U.S.C. § 8101 et seq.

The record contains an August 25, 2015 OWCP decision denying appellant’s claim for a short period of
disability, but she has not appealed this decision to the Board. Appellant also requested a hearing with an OWCP
hearing representative in connection with that decision, but a hearing had not yet been held at the time she filed her
appeal with the Board on December 8, 2015.

FACTUAL HISTORY
On November 19, 2010 appellant, then a 40-year-old practical nurse, filed a traumatic
injury claim (Form CA-1) alleging that she sustained an injury on October 25, 2010 when she
was trying to catch a patient who fell forward from a standing position. OWCP accepted
appellant’s claim for closed right clavicle fracture, right shoulder and upper arm contusions and
sprains, right superior glenoid labrum lesion, and displacement of cervical intervertebral disc
without myelopathy.3
On June 26, 2014 appellant filed a claim for a schedule award (Form CA-7).
By decision dated March 6, 2015, OWCP granted appellant a schedule award for 12
percent permanent impairment of her right upper extremity. The award ran for 37.44 weeks
from November 11, 2014 to July 31, 2015.
In a letter dated March 12, 2015, appellant, through her counsel at the time, requested a
telephonic hearing with an OWCP hearing representative regarding the March 6, 2015 schedule
award decision.
In an August 19, 2015 letter, OWCP’s Branch of Hearings and Review notified appellant
that it had scheduled a telephone hearing for October 5, 2015 at 10:00 a.m. Eastern Standard
Time. Appellant was provided a toll-free number to use to appear at the scheduled hearing. She
was advised regarding the procedures for rescheduling a hearing.4
OWCP indicated that there was no evidence in the file that she had contacted OWCP
either prior or subsequent to the scheduled hearing to explain her failure to appear at the
scheduled hearing.5
By decision dated November 13, 2015, OWCP determined that appellant had abandoned
her March 2015 request for a hearing with an OWCP hearing representative. It noted that
appellant had been properly notified of the telephonic hearing scheduled for October 5, 2015, but
that she had failed to appear on that date.
LEGAL PRECEDENT
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.6 Unless otherwise directed in writing by the claimant, the hearing
3

Appellant received disability compensation on the daily rolls beginning August 15, 2011.

4

OWCP sent the notice to the addresses of record for appellant, her counsel at that time, and the employing
establishment.
5

In an August 25, 2015 decision, OWCP denied appellant’s claim for employment-related disability on June 15
and 16, 2015. In a letter dated August 31, 2015, appellant, through her counsel at the time, requested a telephonic
hearing with an OWCP hearing representative regarding the August 25, 2015 disability decision. The matter is not
the subject of the present appeal. See supra note 2.
6

20 C.F.R. § 10.616(a).

2

representative will mail a notice of the time and place of the hearing to the claimant and any
representative at least 30 days before the scheduled date.7 OWCP has the burden of proving that
it properly mailed to appellant and her representative a notice of a scheduled hearing.8
A claimant who fails to appear at a scheduled hearing may request in writing within 10
days after the date set for the hearing that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference.
The failure of the claimant to request another hearing within 10 days, or the failure of the
claimant to appear at the second scheduled hearing without good cause shown, shall constitute
abandonment of the request for a hearing.9
ANALYSIS
Following OWCP’s March 6, 2015 decision granting appellant a schedule award for her
right upper extremity, she filed a timely request for an oral hearing with an OWCP hearing
representative. In an August 19, 2015 letter, OWCP’s Branch of Hearings and Review notified
her that it had scheduled a telephone hearing for October 5, 2015 at 10:00 a.m. Eastern Standard
Time. OWCP properly sent the notice to appellant’s address of record. Appellant was provided
a toll-free number to use to appear at the scheduled hearing.10 She failed to appear at the
scheduled hearing. She did not request a postponement or provide any explanation to OWCP for
her failure to attend the hearing within 10 days of the scheduled hearing. As appellant did not
request a postponement, did not appear at the scheduled hearing, and did not provide any
notification to the Branch of Hearings and Review within 10 days of the scheduled hearing
explaining her failure to appear, the Board finds that she abandoned her request for a hearing.11
On appeal appellant contends that she was not able to appear at the scheduled telephone
hearing due to an emergency illness. There is no evidence, however, that she provided this
information to OWCP within 10 days of the scheduled hearing.
CONCLUSION
The Board finds that OWCP properly determined that appellant had abandoned her
request for a hearing with an OWCP hearing representative.

7

Id. at § 10.617(b).

8

T.P., Docket No. 15-0806 (issued September 11, 2015).

9

20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.6(g) (October 2011).
10

Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. This is called the mailbox rule. See James A. Gray, 54 ECAB 277 (2002). OWCP
also sent the notice to the addresses of record for appellant’s counsel at that time and the employing establishment.
11

See 20 C.F.R. § 10.622(f); see also R.S., Docket No. 15-1358 (issued December 4, 2015).

3

ORDER
IT IS HEREBY ORDERED THAT the November 13, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 13, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
DEPARMENT OF THE ARMY,
Fort Rucker, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1310
Issued: September 17, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 19, 2014 appellant filed a timely application for review from a December 16,
2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) declining
his request for reconsideration. More than 180 days elapsed from October 9, 2013, the date of
the most recent merit decision, 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 to
review the merits of appellant’s claim
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 27, 2013 appellant, then a 49-year-old electronic multimedia information
specialist, filed a traumatic injury claim (Form CA-1) alleging that on June 26, 2013 he tripped
while entering a video duplication room and fell onto his left leg. His supervisor checked a box
indicating that he had been injured in the performance of duty.
On June 27, 2013 Dr. Christopher Ahmed, a Board-certified diagnostic radiologist,
reviewed an x-ray of appellant’s left knee. He noted moderate degenerative changes trace
effusion and no acute fracture.
In a diagnostic report dated July 19, 2013, Dr. Hugh Holloway, a radiologist, obtained a
magnetic resonance imaging (MRI) scan of appellant’s left knee.2 He noted a tear of the
posterior horn of the medial meniscus and a small joint effusion, degenerative changes and
marginal osteophyte formation.
On August 29, 2013 Dr. Marien Tavarez, a Board-certified internist, performed a
physical examination and reviewed appellant’s x-rays and MRI scan. She noted that appellant
was involved in a work-related accident when he stepped onto a raised portion of flooring and
tripped, twisting and injuring his left knee. On physical examination, Dr. Tavarez noted that his
left knee was cool with no effusion and he had discrete medial joint line tenderness and a
negative Lachman’s test. She noted that drawer testing was also negative, and that his range of
motion and quad tone were excellent. Dr. Tavarez noted that x-rays showed moderate arthritic
changes in the knee, and that appellant’s MRI scan demonstrated a medial meniscal tear.
Appellant told Dr. Tavarez that he would like to have his meniscal tear surgically repaired.
On September 3, 2013 appellant requested authorization for surgery on his left knee.
In a letter dated September 4, 2013, Dr. Christopher E. Robinson, a Board-certified
orthopedic surgeon, noted that appellant could return to work following two weeks off after
surgery to a sedentary position.
By letter dated September 5, 2013, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It noted that his claim initially appeared to be minor and
payment of a limited amount of medical expenses allowed. The claim would be adjudicated
because he requested surgery. OWCP requested that he submit a narrative medical report from
an attending physician, including dates of examination and treatment, the history and date of
injury given to the physician, a detailed description of findings, results of all x-ray and laboratory
tests, a diagnosis and clinical course of treatment and an opinion based on how the claimed work
incident caused or aggravated his left knee injury. On the same date, it denied authorization for
left knee surgery.
Appellant submitted a duty status report dated September 4, 2013 with an illegible
signature. The report recommended sedentary duty for two weeks after surgery.
2

Dr. Holloway’s certification as a radiologist could not be confirmed with a search of physicians certified by the
American Board of Medical Specialties or the American Osteopathic Association.

2

By decision dated October 9, 2013, OWCP denied appellant’s claim. It found that he had
not established a causal relationship between his left knee injury and the incident of
June 26, 2013.
On December 3, 2013 appellant requested reconsideration of the October 9, 2013
decision. With his request, he attached a narrative statement in which he reviewed the medical
development of his condition. Appellant asserted that Dr. Tavarez clearly stated her opinion in a
report dated November 7, 2013 that the fall on June 26, 2013 worsened and could have caused
the tear of the posterior horn of his medial meniscus. This medical report was not submitted with
appellant’s request for reconsideration.
By decision dated December 16, 2013, OWCP denied appellant’s request for
reconsideration without reviewing the merits of the case. It found that his request neither raised
substantive legal questions nor included new and relevant evidence.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.3 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.4
The Board has found that evidence that repeats or duplicates evidence already in the case
record has no evidentiary value.5 The Board also has held that the submission of evidence which
does not address the particular issue involved does not constitute a basis for reopening a case.6
While the reopening of a case may be predicated solely on a legal premise not previously
considered, such reopening is not required where the legal contention does not have a reasonable
color of validity.7 There was no medical evidence submitted with appellant’s request for
reconsideration.

3

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141, 146 (2007).

4

Id. at § 10.608(b); K.H., 59 ECAB 495, 499 (2008).

5

See Daniel Deparini, 44 ECAB 657, 659 (1993).

6

P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB
180, 187 (2000).
7

Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000).

3

ANALYSIS
OWCP issued an October 9, 2013 decision denying appellant’s claim for compensation.
On December 3, 2013 appellant requested reconsideration of this decision.
The Board does not have jurisdiction over the merits of the October 9, 2013 decision as
more that 180 days passed prior to filing his appeal. The issue presented on appeal is whether
appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen
the case for review of the merits of his claim. In his December 3, 2013 request for
reconsideration, appellant did not contend that OWCP erroneously applied or interpreted a
specific point of law, or advance a new and relevant legal argument not previously considered.
Thus, he is not entitled to a review of the merits of his claim based on the first and second abovenoted requirements under section 10.606(b)(2).
A claimant may be entitled to a merit review by submitting new and relevant evidence,
but appellant did not submit any evidence with his request. Appellant submitted a statement
addressing medical development of his claim. He asserted that Dr. Tavarez stated in a report
dated November 7, 2013 that the fall on June 26, 2013 certainly worsened and could have caused
the tear of the posterior horn of his medial meniscus. While appellant’s statement was not
previously of record, it is not relevant to the grounds upon which OWCP denied his claim. His
claim was denied because he did not submit a rationalized opinion from a physician addressing
how his left knee injury resulted from the incident of June 26, 2013. This is a question to be
resolved by probative medical opinion. Appellant’s letter listed physicians he had visited. He
did not submit a physician’s opinion on the causal relation of his left knee condition to the
accepted incident at work. As such, appellant’s letter was not relevant and thus insufficient to
require a merit review of his claim.
Appellant contends that the report from Dr. Tavarez dated November 7, 2013 contained a
statement on causal relationship. This report was not before OWCP at the time of its
December 16, 2013 denial of reconsideration. If a claimant fails to submit relevant evidence not
previously of record, or advance legal contentions of facts not previously considered, OWCP has
the discretion to refuse to reopen a case for further consideration of the merits.8
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
The Board notes that appellant submitted evidence after the issuance of the December 16,
2013 decision. The Board lacks jurisdiction to review evidence for the first time on appeal.9

8

Pamela I. Holmes, 49 ECAB 581, 586 (1998).

9

20 C.F.R. § 501.2(c).

4

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for review of the merits
of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 16, 2013 is affirmed.
Issued: September 17, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.D., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS BASE, Camp LeJeune, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1508
Issued: March 3, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 29, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 25, 2008 nonmerit decision denying her request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error. Because more than one year has elapsed between the last merit decision dated
December 13, 2005 and the filing of this appeal, the Board lacks jurisdiction to review the merits
of appellant’s claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her request was untimely and failed to
demonstrate clear evidence of error.

1

See 20 C.F.R. §§ 501.2(c) and 501.3.

FACTUAL HISTORY
On September 17, 2001 appellant, then a 43-year-old licensed practical nurse, sustained
injuries to her back and left knee when she fell while trying to sit on a chair. Her claim was
accepted for internal derangement of the left knee and thoracic strain. After briefly returning to
restricted duty, appellant stopped working on January 6, 2003 and was placed on the periodic
rolls.
Dr. Gregg Hardy, a treating physician, stated that appellant was unable to work due to her
accepted conditions. On January 7, 2005 an Office second-opinion physician, Dr. Max R.
Kasselt, a Board-certified orthopedic surgeon, opined that appellant had no residuals from the
September 17, 2001 injury and was able to work full time with restrictions. The Office found a
conflict in the medical opinion evidence between appellant’s treating physician and the Office’s
referral physician. In order to resolve the conflict, it referred appellant to Dr. Robert M. Moore,
a Board-certified orthopedic surgeon, for an impartial medical examination.
In a report dated April 21, 2005, Dr. Moore provided a history of injury, as well as
detailed findings on examination. He reviewed the entire medical record and advised that there
were no objective findings to support residuals from the accepted injury. Dr. Moore opined that
the accepted conditions, namely thoracic strain and internal derangement of the left knee, had
resolved. He indicated that appellant’s accepted conditions would have resolved within a few
months of the injury. Dr. Moore diagnosed thoracic degenerative disc disease and osteoarthritis
of the left knee, as evidenced on magnetic resonance imaging (MRI) scan reports. He found that
appellant was not disabled as a result of the September 17, 2001 work injury, stating that her
inability to perform the duties of a licensed practical nurse (LPN) because of her limited lifting
ability, was not the result of the accepted injury, but due to her underlying thoracic degenerative
disc disease and osteoarthritis of the left knee.
On May 2, 2005 the Office proposed to terminate appellant’s compensation and medical
benefits. Based on Dr. Moore’s April 21, 2005 report, it concluded that appellant no longer had
any disability or residuals causally related to her accepted injury. By decision dated June 6,
2005, the Office finalized the termination of appellant’s medical and compensation benefits
effective June 11, 2005.
Appellant requested an oral hearing, which was held on October 15, 2005. At the
hearing, she testified that she continued to experience pain due to her accepted conditions and
that she had been unable to obtain a job that she felt she was capable of performing.
By decision dated December 13, 2005, an Office hearing representative affirmed the
June 6, 2005 decision. The representative found that the weight of the medical evidence was
represented by Dr. Moore’s referee medical opinion. It established that appellant had no
disability or residuals that were causally related to her accepted injury.
On January 8, 2008 appellant requested reconsideration of the hearing representative’s
December 13, 2005 decision. She also requested retroactive compensation for the period
June 2005 to November 2005, as well as a schedule award. Appellant stated that her delay in

2

providing medical evidence was due to her inability to retain a physician who would accept
workers’ compensation cases.
In a December 11, 2007 report, Dr. Sanjay Kumar, a Board-certified physiatrist, indicated
that appellant, had fractured her thoracic spine at T2 in a work-related injury on
September 17, 2001. He stated that her spinal injury had caused derangement of the left knee,
resulting in the development of a popliteal cyst and instability in the left knee joint. Dr. Kumar
noted that appellant’s knee locked up intermittently, putting her at risk for falls and that she
continued to experience neuropathic pain radiating from the left hip to the left knee, secondary to
her injury. He diagnosed fibromyalgia, chronic lumbar and left knee pain, and neuropathic pain.
In a decision dated January 25, 2008, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and failed to establish clear evidence of
error.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.2 It
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.3 In implementing the one-year time limitation,
the Office’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision. However, a right to
reconsideration within one year accompanies any subsequent merit decision on the issues.4
When an application for review is untimely, the Office undertakes a limited review to
determine whether the application presents clear evidence that its final merit decision was in
error.5 Its procedures state that the Office 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
application for review shows clear evidence of error on the part of the Office.6 In this regard, the
Office will limit its focus to a review of how the newly submitted evidence bears on the prior
evidence of record.7

2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

4
5

Veletta C. Coleman, 48 ECAB 367 (1997); Larry L. Lilton, 44 ECAB 243 (1992).
Id.

6

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “[The Office] will consider an
untimely application for reconsideration only if the application demonstrates clear evidence of error on the part of
[it] in its most recent decision. The application must establish, on its face, that such decision was erroneous.” 20
C.F.R. § 10.607(b).
7

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

3

To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.8 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 the Office 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 the Office. 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 the Office’s decision.9 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.10
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. Its procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision.11 A right to reconsideration
within one year also accompanies any subsequent merit decision on the issues.12 As appellant’s
request for reconsideration, dated January 8, 2008, was submitted more than one year after the
most recent merit decision of record on December 13, 2005, it was untimely. Consequently, she
must demonstrate clear evidence of error on the part of the Office in terminating her benefits.13
The Board finds that the evidence submitted is insufficient to establish clear evidence of error.
Appellant submitted a statement alleging that her benefits were improperly terminated
based on the medical evidence of record. Her contention does not establish error or the part of
the Office, but merely repeats arguments considered previously by the Office. Appellant’s
reported inability to locate a doctor is not evidence of error.
Dr. Kumar’s December 11, 2007 report generally supported appellant’s contention that
she continues to experience problems with her left knee and spine. However, his report does not
constitute positive, precise and explicit evidence, which manifests on its face that the Office
committed an error. It fails to raise a substantial question as to the correctness of its decision to
terminate benefits. On December 11, 2007 Dr. Kumar stated that appellant’s spinal injury had
8

Leon J. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55 ECAB 143 (2003).

9

Id.

10

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

11

20 C.F.R. § 10.607(a).

12

Robert F. Stone, 57 ECAB 292 (2005).

13

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

4

caused derangement of the left knee, resulting in the development of a popliteal cyst and
instability in the left knee joint; noted that her knee locked up intermittently, putting her at risk
for falls; and that she continued to experience neuropathic pain radiating from the left hip to the
left knee, secondary to her injury. He diagnosed fibromyalgia, chronic lumbar and left knee
pain, and neuropathic pain. However, appellant’s condition in 2007 is not relevant to her
condition at the time the Office issued its decision terminating benefits. Dr. Kumar did not
provide any opinion addressing appellant’s disability for work due to her accepted condition in
2005. The evidence fails to establish that the hearing representative erred or abused his
discretion in finding that appellant had no disability or residuals from her accepted condition on
June 11, 2005, when her benefits were terminated.
The term “clear evidence of error” is intended to represent a difficult standard. The
submission of 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.14 As the evidence submitted by appellant is insufficient to prima
facie shift the weight of evidence in favor of the claimant and raise a substantial question as to
the correctness of the Office’s last merit decision, she has not established clear evidence of
error.15
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her request was untimely and failed to
demonstrate clear evidence of error.

14

Joseph R. Santos, 57 ECAB 554 (2006).

15

See Veletta C. Coleman, supra note 4. As noted, the issue in this case is whether the Office properly refused to
reopen appellant’s claim for reconsideration of the merits, on the grounds that her request was untimely and failed to
demonstrate clear evidence of error.

5

ORDER
IT IS HEREBY ORDERED THAT the January 25, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2009
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1120
Issued: January 14, 2011

Case Submitted on the Record

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

JURISDICTION
On August 28, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 18, 2009 nonmerit decision, denying his request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error. Because more than one year elapsed between the last merit decision dated August 22,
2007 and the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s
claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely and failed to
demonstrate clear evidence of error.

1

See 20 C.F.R. §§ 501.2(c) and 501.3. For Office decisions issued prior to November 19, 2008, a claimant had
one year to file an appeal. An appeal of Office decisions issued on or after November 19, 2008 must be filed within
180 days of the decision. 20 C.F.R. § 501.3(e) (2008).

FACTUAL HISTORY
On April 6, 2003 appellant, a 50-year-old clerk, filed an occupational disease claim for
back, leg, neck, shoulder and arm injuries due to his employment activities. The Office accepted
his claim for lumbar strain. Appellant returned to limited duty four hours a day.
Appellant filed a claim for a recurrence of disability as of May 1, 2005, alleging that his
condition had worsened because he had been required to box mail. By decision dated
December 13, 2005, the Office denied his claim, finding that the evidence did not establish a
worsening of his condition or a change in the nature and extent of his duties.
Appellant filed a claim for a recurrence of disability as of May 23, 2006, alleging that his
condition had worsened because the employing establishment had not provided him with an
ergonomically designed chair. By decision dated November 9, 2006, the Office denied his
claim, finding that the evidence did not establish a worsening of his condition or a change in the
nature and extent of his duties.
On February 7, 2007 appellant requested reconsideration. By decision dated May 14,
2007, the Office denied modification of the November 9, 2006 decision.
On May 22, 2007 appellant again requested reconsideration. He submitted a copy of his
April 14, 2006 limited-duty job offer for modified manual clerk, which contained the notation
“need ergonomic chair.”
By decision dated August 22, 2007, the Office denied modification of its previous
decisions.
Appellant submitted a January 31, 2008 report from Dr. Perry Stein, a Board-certified
physiatrist, who stated that appellant had spinal stenosis on top of congenitally narrow canal with
cervical and lumbar radiculopathy and myofascial pain syndrome. He had painfully restricted
range of motion of his lumbar and cervical spine, as well as tenderness to palpation of the
scapulothoracic girdle. Dr. Stein recommended that appellant refrain from working.
In a letter dated February 20, 2008, Alan Podhaizer informed the Office that he had been
retained by appellant to represent him in his workers’ compensation claim. Noting that there
were two active cases, he stated that appellant wanted to file motions to reconsider both cases.2
Mr. Podhaizer also requested that the cases be merged.
On March 17, 2008 the Office informed appellant that it had received Mr. Podhaizer’s
February 20, 2008 letter, but that it would be disregarded without proper notification of
representation.
In a notification received by the Office on March 17, 2008, appellant authorized Alan
Podhaizer, Esquire, to represent him in File Nos. xxxxxxx989 and xxxxxx695. On March 21,
2008 the Office acknowledged receipt of appellant’s attorney authorization.
2

Mr. Podhaizer referenced the instant claim number, as well as File No. xxxxxx695.

2

In a letter dated June 11, 2008, the Office addressed its June 10, 2008 telephone call from
appellant, in which he followed up on his attorney’s February 20, 2008 letter requesting
reconsideration. It stated “it is unclear as to why the request for a reconsideration of the claims
was not addressed previously.” The Office informed appellant that he should submit a specific
request for each decision he wished to appeal, together with new and relevant evidence or legal
contentions.
In a June 26, 2008 Office memorandum, Manfred Kurtz noted that he had received a
telephone call from appellant on that date requesting assistance, noting that he was being thrown
out on the street and was financially desperate. Mr. Kurtz advised him to file a “new recon” if he
wanted the decision overturned. When appellant stated that his doctor had sent in records,
Mr. Kurtz told him that “it does not matter if we get new medical records if he has not filed a
reconsideration.”
In a letter dated August 22, 2008, appellant’s representative informed the Office that he
was sending a cover letter in reference to a request for reconsideration. His letter, which
referenced both of appellant’s file numbers, indicated that he was including several documents in
support of the application and would provide additional information as it became available. The
record does not contain a copy of the envelope in which the August 22, 2008 letter arrived.
Appellant submitted a December 27, 2007 report from Dr. Stein, who stated that he had
been treating appellant since April 22, 2004 for symptoms related to injuries that he sustained on
the job superimposed on congenital spinal stenosis. His symptoms included pain on the right
side of his neck, shoulder and arm, which generalized to the upper, middle and low back and
were precipitated by prolonged static activities that require trunk control. Dr. Stein diagnosed
cervical and lumbar radiculopathy and spinal stenosis with bilateral neural foraminal narrowing.
He opined that these symptoms were permanently disabling. In an undated report, Dr. Stein
opined that appellant was unable to perform the duties of his job. In a note bearing an illegible
date in 2006, appellant informed the employing establishment that he did not have an ergonomic
chair.
On January 15, 2009 appellant stated that he “would like to apply for reconsideration.”
Noting that he was attaching a doctor’s note dated November 20, 2008, he asked the Office to
advise him if it needed anything further.
In a report dated November 20, 2008, Dr. Stein stated that appellant had to stop working
because of specific work activities that aggravated his condition, included boxing, verifying and
stamping mail. While he had neck, shoulder and back pain prior to May 1, 2005, it was on this
date that the symptoms became intolerable from the repetitive activities that he was performing
on the job. On examination, appellant had painfully restricted range of motion of the cervical
spine; signs of bilateral lumbar nerve root compression with absent right knee jerk and atrophy
of the left calf. Previous diagnostic imaging studies confirmed the presence of herniated nucleus
pulposus in the cervical and lumbar spine with right C6 radiculopathy and multilevel lumbar
radiculopathy. Dr. Stein diagnosed cervical radiculopathy, cervical spondylosis, and spinal
stenosis on a congenital basis with superimposed degenerative changes resulting multilevel

3

lumbar radiculopathy, which he opined were exacerbated by his work-related activity,
specifically maintaining prolonged static postures of the trunk in order to support the upper
extremity for repetitive activity such as boxing, verifying and stamping mail. He stated that
appellant remained totally permanently disabled.
The record contains numerous physical therapy reports, prescription forms, diagnostic
test results, requests for authorization and notes and reports from appellant’s treating physician
through September 15, 2009.
By decision dated September 18, 2009, the Office denied appellant’s January 15, 2009
request for reconsideration on the grounds that it was untimely and failed to establish clear
evidence of error.
LEGAL PRECEDENT
An application for reconsideration must set forth arguments and contain evidence that
either: (1) shows that the Office erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by the Office; or (3) constitutes
relevant and pertinent new evidence not previously considered by the Office.3 With regard to the
contents of a request for reconsideration, the Office’s procedure manual states that, while no
special form is required, the request must be in writing, identify the decision and the specific
issues for which reconsideration is being requested and be accompanied by relevant new
evidence or argument not considered previously.4
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant also must file his or her application for review within one year of the date of that
decision.5 In implementing the one-year time limitation, the Office’s procedures provide that the
one-year time limitation period for requesting reconsideration begins on the date of the original
Office decision. However, a right to reconsideration within one year accompanies any
subsequent merit decision on the issues.6
Title 20 Code of Federal Regulations, section 10.607(b) provide that the Office will
consider an untimely application only if it demonstrates clear evidence of error by the Office in
its most recent merit decision. To establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by the Office. The evidence must be positive,
precise and explicit and must manifest on its face that the Office committed an error. Evidence
which does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error.7 It is not enough merely to show that the
3

20 C.F.R. § 10.606.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2a (October 2005).

5

20 C.F.R. § 10.607(a).

6

Veletta C. Coleman, 48 ECAB 367 (1997); Larry L. Lilton, 44 ECAB 243 (1992).

7

See Alberta Dukes, 56 ECAB 247 (2005); see also Leon J. Modrowski, 55 ECAB 196 (2004).

4

evidence could be construed so as to produce a contrary conclusion. This entails a limited
review by the Office 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 the Office. 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 raise a substantial question as to the
correctness of the Office’s decision. The Board makes an independent determination of whether
a claimant has submitted clear evidence of error on the part of the Office such that the Office
abused its discretion in denying merit review in the face of such evidence.8
Office procedures provide that an application for review includes any written
communication from a claimant or representative which requests a hearing, reconsideration or
appeal of a formal decision; no special form is necessary. A claimant who expresses or implies
disagreement with a formal decision, without requesting a specific action, should be advised of
the basis of the decision and reminded to exercise rights of appeal if further action is desired.
Office procedures also provide that any file in which a complaint about a formal decision is
received should be reviewed informally to assess whether the action leading to the complaint was
correct and the Office should determine through correspondence with the claimant whether the
inquiry in effect constitutes a request for exercise of appeal rights.9
ANALYSIS
The Office found that appellant’s January 15, 2009 request for reconsideration was
untimely and failed to demonstrate clear evidence of error. The Board finds, however, that
appellant submitted a timely request for reconsideration on August 22, 2008. Therefore, this
case is not in posture for a decision, as the Office applied an incorrect standard in making its
determination.
On August 22, 2008 appellant’s duly authorized representative submitted a timely request
for reconsideration, which was in writing and identified his claim number. This record reflects a
receipt date of August 27, 2008. The Office, however, failed to retain a copy of the envelope, as
required by its procedures. Accordingly, the date of the letter itself should be used to determine
whether the reconsideration request was timely filed.10 As the letter was dated within one year
of the last merit decision dated August 22, 2007, it was timely.
The Board notes that counsel did not specify the decision he wanted reconsidered. The
Office’s procedure manual provides that, if the contested decision or issue cannot be reasonably
determined from a claimant’s request, the claims examiner should return a copy of the
8

See Alberta Dukes, supra note 7.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Review Process, Chapter 2.1600.3(b) (October 2005).

10

The Office’s procedures require that an imaged copy of the envelope that enclosed the request for
reconsideration should be in the case record. If there is no postmark or it is not legible, other evidence such as a
certified mail receipt, a certificate of service and affidavits may be used to establish the mailing date. In the absence
of such evidence, the date of the letter itself should be used. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.3(b)(1) (January 2004).

5

application to the claimant for clarification and inform him that the Office will take no further
action on the request unless clarification is submitted.11 In this case, as there was only one
decision in the record, no additional clarification from appellant was necessary.12 The request
for reconsideration was also accompanied by new medical evidence not previously considered by
the Office. Appellant’s August 22, 2008 request for reconsideration met the standards as
detailed in the Office’s regulations and procedure manual.
The Office evaluated appellant’s reconsideration request using the standard for untimely
requests, namely the clear evidence of error standard. The Board finds that the Office should
have addressed appellant’s August 22, 2008 request for reconsideration and evaluated the
evidence submitted in accordance with section 10.606 of the Office’s regulations.13
CONCLUSION
The Board finds that the Office improperly denied appellant’s request for reconsideration
of the merits on the grounds that his request was untimely and failed to demonstrate clear
evidence of error, and the case must be remanded for a review of the evidence submitted with his
timely request and an appropriate decision.

11

Id. at Chapter 2.1602.3

12

The Board notes that appellant’s attempt to request reconsideration of the August 22, 2007 decision
commenced on February 20, 2008 with a letter from appellant’s then unauthorized representative. Following proper
attorney authorization and numerous discussions between appellant and the Office, counsel ultimately submitted the
August 22, 2008 reconsideration request.
13

20 C.F.R. § 10.606(b).

6

ORDER
IT IS HEREBY ORDERED THAT the September 18, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this decision of the Board.
Issued: January 14, 2011
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Edison, NJ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Robert D. Campbell, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1177
Issued: October 27, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 11, 2016 appellant, through counsel, filed a timely application for review from a
March 28, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
As more than 180 days elapsed from January 6, 2015, the date of the most recent merit decision
of OWCP, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of
appellant’s claim.

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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal, counsel argues that appellant submitted relevant evidence not previously
considered by OWCP, and therefore he should be entitled to a merit review of his claim.
FACTUAL HISTORY
This case has previously been before the Board.3 On March 4, 2004 appellant, then a 40year-old former mail handler, filed a traumatic injury claim (Form CA-1) alleging that he
sustained progressive neck, back, left leg, and hip conditions as a result of unloading trucks at
work.
OWCP converted the traumatic injury claim to a claim for occupational disease. It later
denied the claim for occupational disease on June 4, 2004. Following a series of requests for
reconsideration, and continued affirmance of the denial of the claim by OWCP, on November 2,
2010 appellant appealed a May 6, 2010 merit decision to the Board. In a September 13, 2011
decision, the Board found that appellant had not established that he sustained an occupational
disease in the performance of duty.4
Appellant continued to submit medical evidence to OWCP. By decision dated
December 4, 2012, OWCP accepted appellant’s claim for a lumbar sprain, noting that it had
resolved as of October 8, 2012. On the same date, it terminated his wage-loss compensation
benefits.5 On December 4, 2013 appellant requested reconsideration of the December 4, 2012
decision which found that his accepted condition had resolved. By decision dated September 18,
2014, OWCP denied his request for reconsideration. Appellant filed an appeal with the Board of
the September 18, 2014 decision on December 10, 2014. In a May 12, 2016 decision, the Board
found that OWCP had properly denied appellant’s request for merit review of his claim because
he had not submitted relevant evidence not previously considered by OWCP.6 The facts and
circumstances of the case as set forth in the Board’s prior decisions are incorporated herein by
reference.
In a report dated August 21, 2013, Dr. Nicholas Diamond, a Board-certified osteopath,
examined appellant and noted that he had reached maximum medical improvement (MMI) as of
August 21, 2013. He rendered permanent impairment ratings of nine percent for appellant’s
right lower extremity and nine percent for his left lower extremity according to the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).
3

Docket No. 11-247 (issued September 13, 2011); Docket No. 13-183 (issued December 20, 2012); Docket No.
15-400 (issued May 12, 2016).
4

Docket No. 11-247 (issued September 13, 2011).

5

In an order dismissing appeal dated December 20, 2012, Docket No. 13-183 (issued December 20, 2012), the
Board found that an appeal had been inadvertently docketed in this case.
6

Docket No. 15-400 (issued May 12, 2016).

2

OWCP forwarded Dr. Diamond’s report along with a statement of accepted facts (SOAF)
to a district medical adviser (DMA), Dr. Henry Magliato, a Board-certified orthopedic surgeon,
for review on December 17, 2013. In a report dated December 30, 2013, Dr. Magliato found that
Dr. Diamond’s report was not acceptable as a basis for a schedule award because his report
failed to consider the effect of nonwork-related injuries sustained by appellant on July 17, 2004
and in July 2008. He requested more records of appellant’s treatment before issuing a final
determination.
OWCP again forwarded the case record and Dr. Diamond’s report to Dr. Magliato on
March 18, 2014. In a report dated April 7, 2014, Dr. Magliato concluded that most, if not all, of
the findings of Drs. Weiss and Diamond were due to his nongovernmental injury of July 17,
2004, as well as other injuries sustained outside of work. Dr. Magliato explained that his back
condition had “cleared up before the reinjury of July 17, 2004 while working at another job.”
On July 11, 2014 OWCP determined that a conflict existed in the medical opinion
evidence regarding the degree of appellant’s permanent impairment. It forwarded the case
record and an SOAF to Dr. Howard M. Pecker, a Board-certified orthopedist, for an impartial
medical examination to determine appellant’s percentage of impairment and date of MMI. In a
report dated October 3, 2014, the impartial medical examiner (IME) selected in this case,
determined that appellant’s date of MMI was April 15, 2004 and provided a rating of permanent
impairment. Utilizing the sixth edition A.M.A., Guides, he determined that there was zero
percent permanent impairment of the upper and lower extremities. Dr. Pecker diagnosed
appellant with age-appropriate degenerative disc disease of the cervical and lumbar spine.
On October 17, 2014 OWCP forwarded Dr. Pecker’s report and the case record to
Dr. Andrew A. Merola, a Board-certified orthopedic surgeon and a DMA for review. Dr. Merola
determined that Dr. Pecker had addressed the discrepancy between the reports of Drs. Diamond
and Magliato, specifically indicating that examination revealed no evidence of traumatic injury
to the lumbar or cervical spine and no evidence of radiculopathy.
By decision dated January 6, 2015, OWCP denied appellant’s claim for a schedule award.
It noted that the weight of medical evidence indicated that he had zero percent permanent
impairment of the upper and lower extremities.
On December 29, 2015 appellant, through counsel, requested reconsideration of OWCP’s
January 6, 2015 decision. Counsel provided his opinion regarding the weight that should be
given to the medical evidence of record. With the request for reconsideration, appellant attached
a letter from Dr. Diamond dated March 23, 2015. Dr. Diamond disputed the findings of
Dr. Pecker’s report dated October 3, 2014, noting that Dr. Pecker did not indicate which specific
muscles were tested. Dr. Diamond also summarized findings from reports previously of record
and noted that he “[stood] by [his] impairment rating” of August 21, 2013.
In a December 9, 2014 report, Dr. Garen E. Gajian, a Board-certified anesthesiologist,
examined appellant and diagnosed him with cervicalgia; cervical spondylosis with myelopathy;
displacement of the cervical intervertebral disc without myelopathy; lumbago; displacement of
the lumbar intervertebral disc without myelopathy; and lumbosacral spondylosis without
myelopathy.

3

By decision dated March 28, 2016, OWCP denied appellant’s request for reconsideration
of its decision dated January 6, 2015. It found that appellant had not submitted relevant evidence
not previously considered in support of his request for reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.7 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.8
ANALYSIS
OWCP issued a January 6, 2015 decision finding that appellant had not established a
ratable impairment eligible for a schedule award under FECA. On December 29, 2015 appellant,
through counsel, requested reconsideration of this decision. Counsel reargued the weight that
should be given to the medical evidence of record. With his request, appellant submitted a letter
from Dr. Diamond dated October 3, 2014 and a report from Dr. Gajian dated December 9, 2014.
As noted above, the Board does not have jurisdiction over the merits of the January 6,
2015 decision. The issue presented on appeal is whether appellant met any of the requirements
of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of his
claim. In his request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law, or advance a new and relevant legal argument not
previously considered. Thus, he is not entitled to a review of the merits of his claim based on the
first and second above-noted requirements under section 10.606(b)(3).
The underlying issue is whether appellant has submitted sufficient evidence to establish a
ratable impairment related to appellant’s accepted injury. A claimant may be entitled to a merit
review by submitting relevant and pertinent new evidence, but appellant did not submit any such
evidence in this case. While Dr. Diamond’s letter dated October 3, 2014 disputes one aspect of
Dr. Pecker’s impairment rating of zero, the letter itself does not contain an impairment rating, an
explanation of how Dr. Diamond arrived at that rating, or a detailed explanation of why
Dr. Pecker’s rating of zero was incorrect according to the A.M.A., Guides. Dr. Diamond merely
notes that he is reasserting his impairment rating rendered on August 21, 2013.
Similarly, Dr. Gajian’s report does not contain an impairment rating for appellant’s
conditions or a discussion of how an impairment rating was calculated according to the A.M.A.,
Guides. These documents, while not previously considered by OWCP, are irrelevant to the
underlying issue of whether appellant has a ratable impairment, because they did not contain a
discussion of his impairment rating according to the A.M.A., Guides, or a detailed explanation of
7

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

8

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

4

why Dr. Pecker’s impairment rating was incorrect. As such, they are insufficient to warrant
reconsideration of appellant’s claim.
On appeal, by letter dated September 15, 2016, counsel argued that OWCP’s SOAF was
deficient because it omitted reference to a lumbar spine MRI scan study. As the Board has
previously explained, it does not have jurisdiction over the merits of the claim. The Board’s
jurisdiction is limited to review of appellant’s request for reconsideration by OWCP received on
December 29, 2015 and OWCP’s March 28, 2016 decision denying merit review.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP,
or submit relevant and pertinent evidence not previously considered.
Pursuant to
20 C.F.R. § 10.608, OWCP properly denied merit review.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 28, 2016 is affirmed.
Issued: October 27, 2016
Washington, DC

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
NORTON AIR FORCE BASE, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-206
Issued: February 26, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 26, 2009 appellant filed a timely appeal from the October 13, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the Office’s October 13, 2009 decision.
ISSUE
The issue is whether the Office properly denied appellant’s September 21, 2009 request
for reconsideration on the basis that it was untimely and failed to establish clear evidence of
error.
FACTUAL HISTORY
On December 27, 1978 appellant, then a 33-year-old jet engine mechanic, sustained a
traumatic injury in the performance of duty while helping to move an engine fan case. The
Office accepted his claim for low back strain and herniated disc at L4-5. On December 29, 1998
it terminated his compensation on the grounds that the weight of the medical evidence, as
represented by the opinion of an impartial medical specialist, established that he no longer had

medical residuals of the accepted employment injury. In a July 25, 2002 decision, the Office
reviewed the merits of appellant’s claim and denied modification of the termination.
On September 7, 2006 the Board affirmed an Office decision to deny appellant’s request
for reconsideration on the grounds that the request was untimely and failed to show clear
evidence of error.1 On June 16, 2009 the Board again affirmed an Office decision to deny
appellant’s request for reconsideration on the grounds that the request was untimely and failed to
show clear evidence of error.2
On September 21, 2009 appellant once again requested reconsideration. Seeking Office
disability status with full back pay, he noted that he had not worked since 1984 and was not able
to obtain employment due to his back injury. He stated that his doctor in California had not
released him to go back to work. Appellant took issue with the last doctor the Office sent him to
and stated he should have been given the chance to have a second opinion. He stated that he was
not able to find an orthopedic specialist who would take a workers’ compensation case.
Appellant felt that the Office’s decision was in error and should be given another consideration.
He alleged that the last Office physician did not perform a proper examination. Appellant
alleged that the Office decision was wrong, unjust and made no sense. He stated that the Office
failed to show that he was no longer disabled.
In a decision dated October 13, 2009, the Office denied appellant’s September 21, 2009
request for reconsideration. It found that his request was untimely and failed to establish clear
evidence of error in its July 25, 2002 decision.
On appeal, appellant argues that because of circumstances in his congressman’s office,
his 2002 request for reconsideration was lost and never forwarded to the Office. He added that
he has been unable to find an orthopedic surgeon who will see him. Appellant indicated that the
Office should put him back on disability status due to the facts and nature of his injury. He
submitted a November 10, 2009 medical report from Dr. Malcolm E. Heppenstall, an orthopedic
surgeon.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”3
1

Docket No. 06-746 (issued September 7, 2006), petition for recon. denied (issued February 7, 2007).

2

Docket No. 09-23 (issued June 16, 2009), petition for recon. denied (issued September 18, 2009).

3

5 U.S.C. § 8128(a).

2

The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of the
Office decision for which review is sought. The Office will consider an untimely application
only if the application demonstrates clear evidence of error on the part of the Office in its most
recent merit decision. The application must establish, on its face, that such decision was
erroneous.4
ANALYSIS
Appellant comes to this Board for a third time seeking review of an Office decision
denying his request for reconsideration. The most recent merit decision in his case remains the
Office’s July 25, 2002 decision denying modification of the termination of his compensation.
Appellant had one year from the date of that decision, or until July 25, 2003, to make a timely
request for reconsideration.
In order for the Office to reopen his case, appellant must submit evidence or argument
that shows clear evidence of error in the Office’s decision. As the Board has noted on the prior
appeals, “clear evidence of error” is intended to be a difficult standard. Appellant’s request
would have to establish on its face that the Office’s termination of compensation was erroneous.
It cannot be a matter of opinion. It must be a matter of proof.
Appellant’s September 21, 2009 request for reconsideration does not show clear evidence
of error. Appellant simply disagreed with the Office’s decision. He took issue with the
examination he received from the impartial medical specialist. As the Board explained to
appellant in 2009, simply rearguing the merits of his case and expressing his disagreement with
the Office decision is no proof that the termination of his compensation, based on the opinion of
an impartial medical specialist, was erroneous. Appellant’s September 21, 2009 request for
reconsideration presents nothing new, and nothing that clearly proves that the Office’s
termination of compensation was erroneous.
The Board will therefore affirm the Office’s October 13, 2009 decision denying
appellant’s September 21, 2009 request for reconsideration.
On appeal, appellant once again argues how his congressman’s office did not forward his
initial request for reconsideration to the Office and how the Office should reinstate his disability
status. These are the same arguments he made previously. The Board will affirm the Office’s
denial of his untimely request. Appellant did submit new evidence, a November 10, 2009
medical report, but the Board has no jurisdiction to review evidence that was not in the case
record that was before the Office at the time of its October 13, 2009 decision.5 The Board
therefore cannot review this medical report.

4

20 C.F.R. § 10.607.

5

20 C.F.R. § 10.501.2(c).

3

CONCLUSION
The Board finds that the Office properly denied appellant’s September 21, 2009 request
for reconsideration. The request was untimely and showed no proof that the Office improperly
terminated his compensation.
ORDER
IT IS HEREBY ORDERED THAT the October 13, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 26, 2010
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4