United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 12-1414
Issued: February 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 18, 2012 appellant filed a timely appeal from an April 9, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP) affirming the prior termination of
appellant’s compensation benefits. 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.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s wage-loss
compensation benefits effective November 20, 2010 on the grounds that her work-related
disability had ceased; and (2) whether appellant established that she remained disabled for work
on and after November 20, 2010 due to the accepted injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on June 29, 2005 appellant, then a 46-year-old letter carrier,
sustained a cervical sprain, lumbar sprain, lumbar radiculitis, adhesive capsulitis of the right
shoulder and right shoulder pain in a work-related motor vehicle accident.2 Under claim File No.
xxxxxx900, OWCP previously accepted that she sustained bursitis, calcific tendinitis and rotator
cuff syndrome of the right shoulder due to repetitive reaching on or before March 1, 2001.3
Appellant accepted a light-duty position in April 2001.
Dr. Scott J. Frost, an attending orthopedic surgeon, diagnosed right acromioclavicular
osteoarthritis on March 1, 2001.4 Dr. Scott Fillmore, an attending Board-certified physiatrist,
submitted reports from February 12 to August 29, 2002 diagnosing adhesive capsulitis of the
right shoulder and possible C5 radiculopathy. He restricted appellant to working four hours a
day. Appellant accepted a full-time limited-duty job in August 2003 based on Dr. Frost’s
updated restrictions. In an October 27, 2003 report, Dr. Fillmore diagnosed right posterior
shoulder capsulitis. He submitted reports through June 2005 noting continued symptoms, treated
with trigger point injections.
Following the June 29, 2005 motor vehicle accident, appellant was followed by
Dr. Edward B. McClendon, an attending family practitioner, who submitted reports from July 1
to April 18, 2007 diagnosing right bicipital tendinitis, cervical and lumbar strains.5 Dr. Robert S.
Bell, an attending Board-certified orthopedic surgeon, submitted reports from April 18 to
May 31, 2007 recommending right shoulder surgery. On July 31, 2007 he performed
arthroscopic debridement of the right shoulder with anterior acromionectomy. Dr. Bell noted
that there was no rotator cuff tear. OWCP approved the procedure. Appellant worked between
four and six hours a day from September 17, 2007 to April 10, 2008 and received wage-loss
compensation for the remaining hours.
In a July 14, 2008 report, Dr. Bell diagnosed chronic impingement of the right shoulder
and lumbar pain due to the combined effects of the March 2001 conditions and June 29, 2005
motor vehicle accident. He permanently restricted lifting to five pounds, with reaching above the
shoulder no more than two hours a day.
2

OWCP originally assigned the motor vehicle accident claim File No. xxxxxx569. It later combined File No.
xxxxxx569 with File No. xxxxxx928, accepted for a single episode of major depression with anxiety occurring on
or before February 13, 2001.
3

OWCP combined claim File No. xxxxxx900 with claim File No. xxxxxx569.

4

An April 5, 2001 magnetic resonance imaging (MRI) scan showed a right rotator cuff tear with tenosynovitis of
the biceps tendon. A January 14, 2002 right shoulder arthrogram showed no rotator cuff tear in the right shoulder.
An October 3, 2002 MRI scan showed mild tendinosis of the right supraspinatus tendon, a Type 2 acromion, a
posterior-superior glenoid labrum tear with labral cyst and a spontaneous joint rupture. An April 17, 2003
functional capacity evaluation demonstrated that appellant could perform full-time light-duty work. A
November 11, 2003 electromyogram (EMG) and nerve conduction velocity (NCV) study of her right upper
extremity was normal.
5

An April 16, 2007 MRI scan of the right shoulder showed moderate acromioclavicular joint impingement with
moderate tendinopathy or strain of the distal supraspinatus tendon.

2

OWCP accepted a recurrence of disability beginning on October 3, 2008 due to the
accepted lumbar injury. Appellant received appropriate compensation. She returned to limitedduty work four hours a day on December 20, 2008. Appellant accepted a January 9, 2009 job
offer for four hours a day limited duty, entailing sedentary clerical tasks such as nixie processing.
In reports from May 4 to April 5, 2010, Dr. Bell found that she was able to perform the limitedduty job for four hours a day, noting that she still had pain and weakness in the right shoulder as
well as lumbar pain.
On March 24, 2010 OWCP obtained a second opinion report from Dr. James F. Hood, a
Board-certified orthopedic surgeon. It also obtained a March 19, 2010 functional capacity
evaluation, demonstrating that appellant could perform sedentary work with restrictions but
cautioning that she did not put forth maximal effort. Dr. Hood opined that appellant’s neck, right
shoulder and low back complaints did not prevent her from working eight hours a day sedentary
duty with lifting up to 25 pounds. He found that she should not return to her date-of-injury
position due to lumbar pain and nonoccupational plantar fasciitis.
In a May 20, 2010 report, Dr. Bell related that appellant complained of unrelenting
lumbar pain although a May 13, 2010 lumbar MRI scan showed no abnormalities that would
explain her symptoms.6 As serology was negative for arthritic conditions, he opined on May 27,
2010 that appellant’s lumbar symptoms were “simply related to her work problems” and held her
off work. OWCP accepted a recurrence of disability from May 20 to July 31, 2010.
OWCP found a conflict of medical opinion between Dr. Bell, for appellant and Dr. Hood,
for OWCP, regarding the nature and extent of appellant’s work-related conditions. To resolve
the conflict, it selected Dr. Frank Barnes, a Board-certified orthopedic surgeon. A copy of the
record and statement of accepted facts were provided for his review. In a June 17, 2010 report,
Dr. Barnes reviewed the medical record and a statement of accepted facts. On examination, he
found limited cervical and lumbar motion, normal strength and sensation in all extremities.
Regarding the right shoulder, Dr. Barnes observed 80 degrees flexion and abduction and 90
degrees internal and external rotation, no instability or effusion and negative impingement tests.
He diagnosed cervical and lumbar strains and right shoulder impingement. Dr. Barnes opined
that the accepted lumbar, neck and shoulder conditions had resolved without objective residuals.
He found appellant able to return to her date-of-injury position without restrictions.
In a July 14, 2010 report, Dr. Bell noted reviewing Dr. Barnes’s report and concurred that
appellant was able to work eight hours a day without restrictions. In a September 7, 2010 report,
he opined that, as Dr. Barnes found no objective findings on testing, appellant could be released
to work eight hours a day full duty.
By notice dated October 7, 2010, OWCP advised appellant that it proposed to terminate
her medical and wage-loss compensation benefits, based on Dr. Barnes’s report indicating that
she could resume her date-of-injury job without restrictions.
In response, appellant submitted October 12, 2010 reports from Dr. Bell finding appellant
unable to return to full duty due to multiple medical problems. Dr. Bell permanently restricted
6

A May 13, 2010 lumbar MRI scan showed a minimal annular bulge at L4-5 with facet arthropathy.

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her to working four hours a day with lifting limited to five pounds and a 10-minute break every
90 minutes. In a November 2, 2010 report, he asserted that he should not have allowed
Dr. Barnes’s opinion to alter his opinion. Dr. Bell stated that although appellant had no objective
clinical findings or imaging studies supporting her severe lumbar pain symptoms, he believed
that she was not malingering and required permanent work restrictions. Appellant also submitted
her November 4, 2010 statement disagreeing with the proposed termination.
By decision dated November 9, 2010, OWCP terminated appellant’s wage-loss
compensation benefits effective November 20, 2010 on the grounds that the accepted injury had
ceased without disabling residuals, based on Dr. Barnes as the weight of the medical evidence. It
noted that her medical benefits remained unaffected.
In a November 30, 2010 letter, appellant requested a hearing, held March 8, 2011. At the
hearing, she asserted that Dr. Barnes performed only a cursory examination and that OWCP did
not accord sufficient weight to Dr. Bell’s opinion as the attending physician. Appellant
submitted a December 2, 2010 report from Dr. Bell noting weakness in right shoulder abduction
and his February 22, 2011 report finding her lumbar symptoms remained unchanged.
By decision dated and finalized May 10, 2011, OWCP’s hearing representative affirmed
the November 9, 2010 decision terminating appellant’s wage-loss compensation benefits. The
hearing representative found that the additional evidence submitted was insufficient to outweigh
Dr. Barnes’s opinion as impartial medical examiner.
In a January 2, 2012 letter, appellant requested reconsideration. She asserted that new
testing showed objective abnormalities competent to cause her ongoing lumbar symptoms.
Appellant submitted additional evidence. In May 19, 2011 reports, Dr. Bell renewed work
restrictions permanently limiting her to working four hours a day. He explained that appellant
needed additional imaging studies as prior findings did not reveal the source of her lumbar pain.
A May 27, 2011 MRI scan of the pelvis showed mild bilateral trochanteric bursitis with mild
arthritic changes in the sacroiliac joints bilaterally. In a June 14, 2011 report, Dr. Bell opined
that the May 27, 2011 MRI scan showed irregularities of the sacroiliac joints. He restricted
appellant to working four hours a day. On July 11, 2011 Dr. Bell diagnosed sclerosis of the
sacroiliac joints bilaterally that could account for her lumbar pain symptoms. In an August 9,
2011 report, he related appellant’s account of spending the previous 10 days in bed due to back
pain and that she was pursuing retirement. Dr. Bell noted on November 15, 2011 that she was
wearing a back brace and could not return to her previous job. In February 14, 2012 reports, he
limited appellant to working four hours a day with restrictions.
By decision dated April 9, 2012, OWCP affirmed its May 10, 2011 decision on the
grounds that the additional evidence submitted was insufficient to outweigh that of Dr. Barnes as
impartial medical examiner. It noted that Dr. Bell frequently changed his opinion and did not
explain how any objective findings were occupationally related or competent to disable appellant
for work.

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LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.7 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.8
Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.9 When there
are opposing medical reports of virtually equal weight and rationale, the case must be referred to
an impartial medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical
evidence.10 In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.11
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a cervical sprain, lumbar sprain, lumbar
radiculitis, bursitis, adhesive capsulitis, calcific tendinitis and rotator cuff syndrome of the right
shoulder.
Through April 2007, appellant was followed for neck pain, low back pain and adhesive
capsulitis of the right shoulder by Dr. Frost, an orthopedic surgeon, Dr. Fillmore, a Boardcertified physiatrist and Dr. McClendon, a family practitioner. Dr. Bell, an attending Boardcertified orthopedic surgeon, performed arthroscopic debridement of the right shoulder with
anterior acromionectomy on July 31, 2007. As of July 14, 2008, he permanently restricted
appellant to lifting no more than five pounds, with reaching above the shoulder limited to two
hours a day. Appellant performed part-time light-duty work through April 2010 within
Dr. Bell’s restrictions.
Later, OWCP referred appellant to Dr. Hood, a Board-certified orthopedic surgeon, for a
second opinion examination. Dr. Hood submitted a March 24, 2010 report finding no objective
evidence of the accepted cervical, lumbar and right shoulder injuries. He opined that appellant
could perform full-time sedentary work. Dr. Bell submitted May 2010 reports holding her off
work due to lumbar pain of undetermined etiology.
7

Bernadine P. Taylor, 54 ECAB 342 (2003).

8

Id.

9

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

10

Delphia Y. Jackson, 55 ECAB 373 (2004).

11

Anna M. Delaney, 53 ECAB 384 (2002).

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OWCP found a conflict of opinion between Dr. Bell, for appellant and Dr. Hood, for
OWCP, regarding the nature and extent of any work-related disability. It selected Dr. Barnes, a
Board-certified orthopedic surgeon, to resolve the conflict. Dr. Barnes submitted a June 17,
2010 report finding no objective clinical findings of the accepted neck, back and right shoulder
conditions. He opined that appellant could therefore return to her date-of-injury position without
restrictions.
Based on this report, OWCP issued an October 7, 2010 notice of proposed termination.
Appellant submitted October and November 2010 reports from Dr. Bell asserting that appellant
was not malingering although there was no pathophysiologic explanation for her symptoms.
OWCP then issued a November 9, 2010 decision terminating appellant’s compensation benefits,
based on Dr. Barnes’s opinion as the weight of the medical evidence.
The Board finds that Dr. Barnes’ opinion was sufficient to represent the weight of the
medical evidence as it was detailed, well rationalized and based on a complete factual and
medical history.12 Dr. Barnes reviewed the evidence and indicated that he found no objective
findings to support work-related disability. Appellant’s physicians did not provide medical
rationale supporting a continuing disability related to the accepted injuries. Although Dr. Bell
found appellant partially or totally disabled for work, he did not explain how and why objective
residuals of the accepted injuries continued to disable her for work. He stated repeatedly that he
could find no objective cause for her subjective complaints. Thus, the Board finds that OWCP
met its burden of proof in terminating appellant’s compensation benefits.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to the claimant. In order to
prevail, the claimant must establish by the weight of reliable, probative and substantial evidence
that he or she had an employment-related disability that continued after termination of
compensation benefits.13 For conditions not accepted by OWCP as being employment related, it
is the employee’s burden to provide rationalized medical evidence sufficient to establish causal
relation.14 The fact that a condition’s etiology is unknown or obscure neither relieves appellant
of the burden of establishing a causal relationship by the weight of the medical evidence, nor
shifts the burden of proof of OWCP to disprove an employment relationship.15

12

Conard Hightower, 54 ECAB 796 (2003).

13

See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992).

14

Alice J. Tysinger, 51 ECAB 638 (2000).

15

Judith J. Montage, 48 ECAB 292, 294-95 (1997).

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ANALYSIS -- ISSUE 2
By November 9, 2010 decision, OWCP terminated appellant’s wage-loss compensation
effective November 20, 2011 on the grounds that the accepted injuries had ceased without
residuals. The burden now shifts to appellant to demonstrate that she continued to be disabled
for work on and after November 20, 2011 due to the accepted June 29, 2005 and March 1, 2011
injuries.16
Pursuant to a November 30, 2010 request for hearing and a January 2, 2012 request for
reconsideration, appellant submitted additional reports from Dr. Bell, an attending Boardcertified orthopedic surgeon. In reports from December 2, 2010 to February 14, 2012, Dr. Bell
found her partially or totally disabled for work. He opined on June 14 and July 10, 2011 that
bilateral sacroiliac joint changes/irregularities could account for appellant’s lumbar pain.
However, Dr. Bell did not explain if or why he believed these changes were related to the
accepted injuries. OWCP denied modification by decision dated April 9, 2012, finding that
Dr. Barnes’ opinion as impartial medical examiner established that the accepted injuries had
ceased without residuals.
The Board finds that OWCP properly found that appellant did not establish a continuing
disability for work on and after November 20, 2011, based on Dr. Barnes’ opinion as impartial
medical examiner. Dr. Barnes provided a detailed report, based on a complete and factual
medical history, explaining that there were no objective signs of the accepted injuries. Although
Dr. Bell supported continuing disability for work, he did not explain how and why the accepted
cervical, lumbar and right shoulder injuries would disable appellant on and after
November 20, 2011. Furthermore, the Board has held that submitting a report from a physician
who was on one side of a medical conflict that an impartial specialist resolved is generally
insufficient to overcome the weight accorded to the report of the impartial medical examiner or
to create a new conflict.17 Therefore, OWCP correctly found that appellant did not establish
continuing work-related disability on and after November 20, 2010.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
benefits effective November 20, 2010 on the grounds that her work-related disability had ceased.
The Board further finds that appellant has not established that she remained disabled for work on
and after November 20, 2010 due to the accepted injuries.

16

Virginia Davis-Banks, supra note 13.

17

S.J., Docket No. 09-1794 (issued September 20, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 9, 2012 is affirmed.
Issued: February 25, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCE & ACCOUNTING SERVICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 18-0871
Issued: February 11, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 19, 2018 appellant filed a timely appeal from a January 8, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
has elapsed from the last merit decision, dated April 7, 2015, 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 this case.
ISSUE
The issue is whether OWCP properly denied appellant’s requests for review of the written
record and an oral hearing, pursuant to 5 U.S.C. § 8124(b).
1

Appellant timely requested oral argument before the Board. By order dated October 12, 2018, the Board exercised
its discretion and denied the request as the matter could be adequately addressed based on a review of the case record.
Order Denying Oral Argument, Docket No. 18-0871 (issued October 12, 2018).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 6, 2014 appellant, then a 56-year-old military pay technician, filed a traumatic
injury claim (Form CA-1) for a left foot/ankle fracture that allegedly occurred while in the
performance of duty on July 25, 2014 when she stepped to avoid some ice on the floor at the
employment establishment. She stopped work on July 25, 2014 and resumed on July 28, 2014.
By decision dated September 24, 2014, OWCP accepted that the July 25, 2014 incident
occurred as alleged. However, it denied appellant’s claim because she had not provided sufficient
evidence to establish a medical diagnosis in connection with the accepted employment incident
and, therefore, she did not satisfy the requirements to prove an injury pursuant to FECA.
By postmark dated October 17, 2014, appellant timely requested a review of the written
record by a representative of OWCP’s Branch of Hearings and Review, and submitted additional
medical evidence, which included a diagnosis of left forth metatarsal stress fracture.
By decision dated April 7, 2015, an OWCP hearing representative affirmed the
September 24, 2014 decision as modified to find she had not established that her diagnosed left
foot stress fracture was causally related to the accepted July 25, 2014 employment incident.
On March 27, 2017 appellant requested reconsideration before OWCP. On June 8, 2017
OWCP received her May 31, 2017 request for review of the written record. The September 24,
2014 decision date was printed at the top of the form.
By decision dated June 22, 2017, OWCP denied appellant’s March 27, 2017 request for
reconsideration, finding that it was untimely filed and did not demonstrate clear evidence of error
with respect to the hearing representative’s April 7, 2015 decision.
On October 26, 2017 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. On November 10, 2017 she resubmitted her May 31,
2017 request for a review of the written record.
By decision dated January 8, 2018, OWCP determined that appellant was not entitled to
either an oral hearing or a review of the written record as a matter of right because her requests
were untimely. The hearing representative further noted that she had previously received a review
of the written record and following the hearing representative’s April 7, 2015 decision, she had
also requested reconsideration. The hearing representative also considered whether to grant a
discretionary hearing, and advised appellant that, in light of OWCP’s latest June 22, 2017 nonmerit
decision, she could instead pursue the appeal rights that accompanied that decision.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
OWCP hearing representative, provides: Before review under section 8128(a) of this title, a
claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of

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this section is entitled, on request made within 30 days after the date of the issuance of the decision,
to a hearing on his or her claim before a representative of the Secretary.3
A hearing is a review of an adverse decision by an OWCP hearing representative. Initially,
the claimant can choose between two formats: an oral hearing or a review of the written record.
In addition to the evidence of record, the claimant may submit new evidence to the hearing
representative.4 A request for either an oral hearing or a review of the written record must be sent,
in writing, within 30 days of the date of the decision for which the hearing is sought.5 A claimant
is not entitled to a hearing or a review of the written record if the request is not made within 30
days of the date of the decision.6 OWCP has discretion to grant or deny a request that is made
after the 30-day period for requesting an oral hearing or review of the written record and must
properly exercise such discretion.7
The Board has held that OWCP, in its broad discretionary authority in the administration
of FECA, has the power to hold hearings in certain circumstances where no legal provision was
made for such hearings and that OWCP must exercise this discretionary authority in deciding
whether to grant a hearing.8 Specifically, the Board has held that OWCP has the discretion to grant
or deny a hearing request on a claim involving an injury sustained prior to the enactment of the
1966 amendments to FECA which provided the right to a hearing,9 when the request is made after
the 30-day period for requesting a hearing,10 when the request is for a second hearing on the same
issue,11 and when the request is made after a reconsideration request was previously submitted.12
In these instances, OWCP will determine whether a discretionary hearing should be granted, and
if not, will so advise the claimant with reasons.13

3

Id. at § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

Id. at § 10.616(a); G.W., Docket No. 10-0782 (issued April 23, 2010); James Smith, 53 ECAB 188 (2001).

6

See S.M., Docket No. 17-1876 (issued January 24, 2018); R.T., Docket No. 08-0408 (issued December 16, 2008).

7

20 C.F.R. § 10.616(b); see also F.M., Docket No. 18-0161 (issued May 18, 2018).

8

Henry Moreno, 39 ECAB 475, 482 (1988).

9

Rudolph Bermann, 26 ECAB 354, 360 (1975).

10

Herbert C. Holley, 33 ECAB 140, 142 (1981).

11

Johnny S. Henderson, 34 ECAB 216, 219 (1982).

12

R.H., Docket No. 07-1658 (issued December 17, 2007); S.J., Docket No. 07-1037 (issued September 12, 2007).
Section 10.616(a) of OWCP’s regulations provides that the claimant seeking a hearing must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision. 20 C.F.R. § 10.616(a).
13

See supra note 9.

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ANALYSIS
The Board finds that OWCP properly determined that appellant’s requests for an oral
hearing and a review of the written record were untimely filed.14 OWCP’s regulations provide
that the hearing request must be sent within 30 days of the date of the decision for which a hearing
is sought. Because appellant’s request for an oral hearing was postmarked October 26, 2017, more
than 30 days after OWCP’s September 24, 2014 decision, it was untimely filed and she was not
entitled to an oral hearing as a matter of right. Similarly, her request for a review of the written
record was dated May 31, 2017, which was more than 30 days after OWCP’s September 24, 2014
decision. As such, appellant’s request for a review of the written record was also untimely filed
and she was not entitled to a review of the written record as a matter of right.
The Board further finds that appellant’s requests for an oral hearing and a review of the
written record were made after a previous April 7, 2015 review of the written record on the same
issue, which upheld OWCP’s September 24, 2014 decision. Moreover, appellant had previously
submitted a reconsideration request on March 27, 2017, which was denied by decision dated
June 22, 2017. The hearing representative noted that appellant could pursue the appeal rights that
accompanied OWCP’s June 22, 2017 decision. As noted above, the Board has held that OWCP
has the discretion to grant or deny a hearing request.15 As such the Board finds that appellant was
not entitled to an oral hearing or a review of the written record as a matter of right.16
OWCP properly exercised its discretion in denying appellant’s requests for an oral hearing
and a review of the written record.17 The Board has held that the only limitation on OWCP’s
discretionary authority is reasonableness. An abuse of discretion is generally shown through proof
of manifest error, a clearly unreasonable exercise of judgment, or actions taken which are contrary
to logic and probable deduction from established facts.18 In this case, the evidence of record does
not establish that OWCP abused its discretion in denying appellant’s requests for an oral hearing
and a review of the written record. Accordingly, the Board finds that OWCP properly denied her
oral hearing and review of the written record requests.19
CONCLUSION
The Board finds that OWCP properly denied appellant’s requests for a review of the written
record and an oral hearing pursuant to 5 U.S.C. § 8124(b).

14

See M.T., Docket No. 18-0652 (issued August 1, 2018).

15

Supra notes 11-12.

16

Id.

17

See D.P., Docket No. 14-0308 (issued April 21, 2014); D.J., Docket No. 12-1332 (issued June 21, 2013).

18

See R.G., Docket No. 16-0994 (issued September 9, 2016); Teresa M. Valle, 57 ECAB 542 (2006).

19

See J.O., Docket No. 17-0789 (issued May 15, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the January 8, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 11, 2019
Washington, DC

Patricia H. Fitzgerald, Deputy 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, HAMPTON BAYS
POST OFFICE, Hampton Bays, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0635
Issued: October 28, 2021

Case Submitted on the Record

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

On March 15, 2021 appellant filed a timely appeal from a November 24, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate
Boards docketed the appeal as No. 21-0635.
On May 9, 2016 appellant filed a notice of recurrence (Form CA-2a) alleging that on
January 29, 2016 she sustained a recurrence of disability due to her February 20, 2015 employment
injury under OWCP File No. xxxxxx624.2 She noted that, following her employment injury, she
1

The Board notes that following the November 24, 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
additional evidence for the first time on appeal. Id.
2

On February 21, 2015 appellant, then a 47-year-old city letter carrier, filed a traumatic injury claim (Form CA-1)
alleging on February 20, 2015 that she slipped and fell injuring her head, neck, right shoulder, right elbow, and lower
back while in the performance of duty. She stopped work on February 20, 2015. OWCP assigned the claim OWCP
File No. xxxxxx624 and accepted it for lumbar and cervical strains. Appellant returned to part-time limited-duty on
August 1, 2015 working two to four hours a day. On May 5, 2016 OWCP expanded the acceptance of appellant’s
claim to include cervical disc disorder with radiculopathy; lumbar disc disorders with radiculopathy; and meralgia
paresthetica, left lower limb.

had returned to work four hours per day, when available, casing mail. Appellant alleged that her
right elbow condition worsened due to the repetitive motion of casing mail. She stopped work on
January 29, 2016. OWCP developed this claim as a new occupational disease claim under OWCP
File No. xxxxxx815 and accepted it for right elbow lateral epicondylitis, right elbow medial
epicondylitis, and lesion of the ulnar nerve right upper extremity. It paid appellant wage-loss
compensation on the periodic rolls effective April 30, 2017.
On February 28, 2017 appellant underwent right lateral epicondylitis common extensor
repair.
On September 5, 2018 appellant requested authorization for right elbow surgery to revise
the ulnar nerve at the elbow and incision of the tendon sheath.
In a September 5, 2018 development letter, OWCP requested additional medical evidence
establishing that the requested revision surgery for the right ulnar nerve surgery was medically
necessary due to appellant’s accepted employment injuries.
By decision dated February 20, 2019, OWCP denied appellant’s request for additional
revision of the ulnar nerve lesion, finding that it was not medically warranted.
On June 13, 2019 appellant requested reconsideration. She noted that on October 9, 2009
she sustained right medial epicondylitis while in the performance of duty, which had been accepted
under OWCP File No. xxxxxx317.
By decision dated October 28, 2019, OWCP denied modification of its prior decision.
On October 20, 2020 appellant again requested reconsideration.
By decision dated November 24, 2020, OWCP denied appellant’s request for
reconsideration, pursuant to 5 U.S.C. § 8128(a).
The Board, having duly considered this matter, finds that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between case files.3 For example,
if a new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. 4 In the present claim, appellant
alleged a right elbow condition. OWCP previously accepted a 2009 claim for right medial
epicondylitis under OWCP File No. xxxxxx317. However, evidence pertaining to OWCP File No.
xxxxxx317 is not part of the case record presented before the Board. For a full and fair
adjudication, the case shall be remanded to OWCP to administratively combine OWCP File No.
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c
(February 2000); T.D., Docket No. 20-1119 (issued January 29, 2021); R.R., Docket No. 19-0368 (issued
November 26, 2019).
4

Id.; M.B., Docket No. 20-1175 (issued December 31, 2020); L.M., Docket No. 19-1490 (issued January 29, 2020).

2

xxxxxx317 with File No. xxxxxx815 and master File No. xxxxxx624, so it can consider all relevant
evidence in adjudicating appellant’s request for authorization for right elbow surgery.5 Following
this and other such further development as deemed necessary, OWCP shall issue an appropriate
decision. Accordingly,
IT IS HEREBY ORDERED THAT the November 24, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: October 28, 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

5

A.Y., Docket No. 20-1334 (issued March 29, 2021).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Greenfield, WI, Employer
__________________________________________

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

Docket No. 08-2318
Issued: May 20, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 22, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 28, 2008 nonmerit decision, denying his request for further
review of the merits of his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board
has jurisdiction over this nonmerit decision. The last merit decision of record was the Office’s
February 22, 2007 decision finding that he did not sustain an injury in the performance of duty
on December 2, 2006. Because more than one year has elapsed between the last merit decision
and the filing of this appeal on August 22, 2008, the Board lacks jurisdiction to review the merits
of this claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.
1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

FACTUAL HISTORY
On December 13, 2006 appellant, then a 59-year-old transportation security screener at
General Mitchell International Airport (GMIA), filed a traumatic injury claim alleging that he
sustained injury to his left shoulder and elbow due to a fall at work on December 2, 2006 at
8:28 p.m. Regarding the nature of the injury, he stated, “Slipped on the ice while walking to my
car that was parked in the International parking lot.”2 Brian Stewart, a supervisor, asserted on
the form that the claimed injury did not occur in the performance of duty because appellant was
off duty when the injury occurred in the International parking lot.
In a January 25, 2007 statement, Nadine Eaton, a workers’ compensation official for the
employing establishment, stated that appellant was “off duty” en route to his motor vehicle
parked within the international parking lot at the time of the claimed injury. The international
parking lot was owned by the County of Milwaukee and leased to GMIA. Ms. Eaton indicated
that the parking spaces were sold by GMIA to airport personnel on a first come first serve basis
regardless of airline or occupation. Maintenance such as snow removal and salting was
subcontracted out by the airport to Central Parking Services (CPS).
In a February 8, 2007 statement, Marvin Haynes, III, a supervisor, stated that appellant
was “off duty” at the time of his fall,3 that employees were required to pay $96.00 per year to
park in the lot where he parked, that the parking lot was owned by the Federal Government and
that the actual name of the lot was “Employee parking lot.” He acknowledged that there were
other places agency employees could park but asserted that they were impractical or too
expensive. The maintenance services for the parking lot were subcontracted but were
administered and inspected contractually by the airport, which sold parking passes to agency
employees and leased checkpoints to the Federal Government.
In a February 22, 2007 decision, the Office determined that appellant did not meet his
burden of proof to show that he sustained an injury in the performance of duty on
December 2, 2006. It indicated that appellant’s claimed injury occurred when he was off duty
and not on the employing establishment premises.
On September 18, 2007 appellant requested reconsideration of his claim arguing that the
area where he fell was so interrelated with the employing establishment that it could be treated as
though it was the actual premises of the employing establishment. He asserted that the parking
lot was called the employee parking lot rather than the international parking lot. In a
December 13, 2007 decision, the Office denied appellant’s request for further review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

2

Appellant stopped work on December 3, 2006. In a January 30, 2007 statement, he stated, “On December 2,
2006 at 20:30, at the end of my shift, while walking to my vehicle that was parked in the International parking lot I
slipped on the ice, fell and injured my left elbow and shoulder. This lot is an area of the main parking lot that we are
assigned to park in and that we pay to park in.”
3

Mr. Haynes indicated that appellant left work on December 2, 2006 as usual between 5 and 10 minutes prior to
the official end of his shift at 8:30 p.m.

2

In a form dated February 26, 2008, appellant requested reconsideration of his claim.4 In a
February 25, 2008 statement, he asserted that he was actually on duty at the time of the fall on
December 2, 2006 because, as noted by Mr. Haynes, he left work as usual between 5 and 10
minutes prior to the official end of his shift at 8:30 p.m. Appellant claimed that, although the fall
did not occur on federal property, the location of the injury still fell under the premises rule. He
asserted that Office Safety and Health Administration (OSHA) guidelines provide that when an
employee slips on ice in a parking lot the injury is considered to be employment related.
Appellant indicated that agency employees are responsible for ensuring that the entire airport
grounds are safe. He felt his situation was similar to that of mail carriers who did not work on
official federal property. Appellant asserted therefore that all parts of the airport were part of the
employing establishment premises. He claimed that all agency employees took the path to the
employee parking lot and that the general public was not permitted to park there.
In a May 28, 2008 decision, the Office denied appellant’s request for further review of
the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.5 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted the Office under section 8128(a) of the Federal Employees’
Compensation Act.6
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes “clear
evidence of error.”7 Office regulations and procedure provide 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(a), if the claimant’s application for review shows “clear evidence of error” on
the part of the Office.8

4

The record contains an accompanying envelope postmarked February 26, 2008.

5

20 C.F.R. § 10.607(a).

6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

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

8

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). Office procedure further provides, “The term ‛clear evidence of error’ is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that the [Office] made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error.” Id. at Chapter 2.1602.3c.

3

To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.9 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by 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.13 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.14
The Act provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.15 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, “arising out of and in the
course of employment.”16 “In the course of employment” relates to the elements of time, place
and work activity. To arise in the course of employment, an injury must occur at a time when
the employee may reasonably be said to be engaged in her master’s business, at a place when he
may reasonably be expected to be in connection with her employment and while he was
reasonably fulfilling the duties of his employment or engaged in doing something incidental
thereto. As to the phrase “in the course of employment,” the Board has accepted the general rule
of workers’ compensation law that, as to employees having fixed hours and places of work,
injuries occurring on the premises of the employing establishment, while the employees are
going to or from work, before or after working hours or at lunch time, are compensable.17

9

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

10

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

11

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

12

See Leona N. Travis, supra note 10.

13

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

14

Leon D. Faidley, Jr., supra note 6.

15

5 U.S.C. § 8102(a).

16

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
17

Narbik A. Karamian, 40 ECAB 617, 618 (1989). The Board has also applied this general rule of workers’
compensation law in circumstances where the employee was on an authorized break. See Eileen R. Gibbons,
52 ECAB 209 (2001).

4

Regarding what constitutes the “premises” of an employing establishment, the Board has
stated:
“The term ‘premises’ as it is generally used in work[ers’] compensation law, is
not synonymous with ‘property.’ The former does not depend on ownership, nor
is it necessarily coextensive with the latter. In some cases ‘premises’ may include
all the ‘property’ owned by the employer; in other cases even though the
employer does not have ownership and control of the place where the injury
occurred the place is nevertheless considered part of the ‘premises.”18 (Emphasis
in the original.)
The Board has also pointed out that factors which determine whether a parking lot used
by employees may be considered a part of the employing establishment’s “premises” include
whether the employing establishment contracted for the exclusive use by its employees of the
parking area, whether parking spaces on the lot were assigned by the employing establishment to
its employees, whether the parking areas were checked to see that no unauthorized cars were
parked in the lot, whether parking was provided without cost to the employees, whether the
public was permitted to use the lot and whether other parking was available to the employees.
Mere use of a parking facility, alone, is not sufficient to bring the parking lot within the
“premises” of the employing establishment. The premises doctrine is applied to those cases
where it is affirmatively demonstrated that the employer owned, maintained or controlled the
parking facility, used the facility with the owner’s special permission or provided parking for its
employees.19
ANALYSIS
In its May 28, 2008 decision, the Office properly determined that appellant filed an
untimely request for reconsideration. Appellant’s reconsideration request was filed on
February 26, 2008, more than one year after the Office’s February 22, 2007 decision and
therefore he must demonstrate clear evidence of error on the part of the Office in issuing this
decision.
Appellant has not demonstrated clear evidence of error on the part of the Office in issuing
its February 22, 2007 decision. He did not submit the type of positive, precise and explicit
evidence which manifests on its face that the Office committed an error.
In connection with his untimely reconsideration request, appellant asserted that he was
actually on duty at the time of the fall on December 2, 2006 because, as noted by Mr. Haynes, he
left work as usual between 5 and 10 minutes prior to the official end of his shift at 8:30 p.m.
18

Wilmar Lewis Prescott, 22 ECAB 318, 321 (1971). Another exception to the rule is the proximity rule which
the Board has defined by stating that under special circumstances the industrial premises are constructively extended
to hazardous conditions which are proximately located to the premises and may therefore be considered as hazards
of the employing establishment. The main consideration in applying the rule is whether the conditions giving rise to
the injury are causally connected to the employment. See William L. McKenney, 31 ECAB 861 (1980).
19

Diane Bensmiller, 48 ECAB 675 (1997); Edythe Erdman, 36 ECAB 597 (1985); Karen A. Patton, 33 ECAB
487 (1982).

5

This assertion would not tend to support his claim as Mr. Haynes and all the other agency
officials of record explicitly indicated that appellant was officially off duty at the time of his fall.
Appellant claimed that, although the fall did not occur on federal property, the location of the
injury still fell under the premises rule.20 His mere assertion that the premises extended to the
parking lot where he fell would not show clear error in the Office’s finding that his injury did not
occur in the performance of duty.
Appellant asserted that OSHA guidelines provide that when an employee slips on ice in a
parking lot the injury is considered to be employment related. However, the standards of other
agencies would not be relevant to whether appellant’s fall occurred within the performance of
duty under the Act.21 Appellant indicated that agency employees were responsible for ensuring
that the entire airport grounds are safe and hence suggested that he was carrying out work duties
at the time of his fall.22 This assertion would not tend to show clear evidence of error in the
Office’s denial of his claim because there is no indication in the case record that appellant was
given any special work duties after he was officially off work on December 2, 2006.23
For these reasons, the evidence submitted by appellant does not raise a substantial
question concerning the correctness of the Office’s February 22, 2007 decision and the Office
properly determined that appellant did not show clear evidence of error in that decision.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.

20

See supra note 18 and accompanying text.

21

The Board has long held that entitlement to benefits under statutes administered by other federal agencies does not
establish entitlement to benefits under the Act. See Donald Johnson, 44 ECAB 540, 551 (1993).
22

See supra note 17 and accompanying text.

23

Appellant claimed that all agency employees took the path to the parking lot where the fall occurred and that
the general public was not permitted to park there. These claims would not tend to support appellant’s claim as
agency officials indicated that employees had more than one option for parking and that many nonagency
individuals parked in the parking lot in question, including airport and airline employees. The fact that the agency
did not own, control or maintain the parking lot, that agency employees could park elsewhere and that nonagency
employees could park in the lot militated against a finding that the premises extended to the lot. See supra note 19
and accompanying text.

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 28, 2008 decision is affirmed.
Issued: May 20, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT
COMMAND, Fort Drum, NY, Employer
__________________________________________

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

Docket No. 18-0063
Issued: September 6, 2018

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 October 10, 2017 appellant filed a timely appeal from a May 31, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated May 9, 2016, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
because it was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
On August 29, 2001 appellant, a 48-year-old carpenter, filed an occupational disease claim
(Form CA-2) alleging that he developed lateral epicondylitis due to factors of his federal
employment, including the use of a hammer, lifting, and the use of a cordless drill in the
performance of duty. OWCP initially accepted the claim for right lateral epicondylitis and
authorized a debridement surgery, which appellant underwent on April 4, 2002. It later accepted
that appellant sustained a recurrence of disability on May 10, 2003 and also granted him a schedule
award for three percent permanent impairment of the right upper extremity. The award ran for
9.36 weeks for the period July 11 to September 14, 2004. By decisions dated July 8 2008 and
April 6, 2009, OWCP denied the expansion of the acceptance of appellant’s claim to include
pancreatitis. Appellant returned to work on March 30, 2009 as a temporary office aid. By decision
dated June 4, 2009, OWCP found that this full-time limited-duty position fairly and reasonably
represented appellant’s wage-earning capacity.
On April 9, 2009 appellant filed a claim for a schedule award (Form CA-7) for his left
upper extremity. By decision dated June 22, 2010, OWCP granted him a schedule award for two
percent permanent impairment of the left upper extremity. The award ran for 6.24 weeks for the
period June 6 to July 19, 2010. OWCP noted that the schedule award period started on June 6,
2010 rather than the date he had reached maximum medical improvement because appellant had
previously received compensation through June 5, 2010.
On February 13, 2014 appellant filed a notice of recurrence (Form CA-2a) claiming that
he was totally disabled for work commencing March 31, 2010. By decision dated May 13, 2014,
OWCP denied his claim for a recurrence of total disability. Appellant requested reconsideration.
By decision dated April 24, 2015, OWCP denied modification of its prior decision because the
evidence of record failed to establish that there was a material change in the nature and extent of
the injury-related condition, causing renewed disability for work as of March 31, 2010. It noted
that appellant was employed in a temporary position when he was injured and the temporary
limited-duty position he started performing on March 30, 2009 expired on March 30, 2010.
On February 24, 2016 appellant requested reconsideration.
By decision dated May 9, 2016, OWCP denied modification of its prior decision as the
evidence of record was insufficient to establish entitlement to disability benefits as his temporary
limited-duty position had expired on March 30, 2010.
On October 17, 2016 appellant filed an appeal with the Board. By order dated
November 23, 2016, the Board dismissed the appeal upon appellant’s request.3

2

Docket No. 17-0080 (issued November 23, 2016).

3

Id.

2

On May 12, 2017 appellant requested reconsideration of OWCP’s May 9, 2016 decision.
Appellant submitted a narrative statement dated May 8, 2017 reiterating the factual history
of his claim and provided an attending physician’s report (Form CA-20) dated October 16, 2016
from Dr. Edward N. Powell, a Board-certified orthopedic surgeon, who diagnosed lateral
epicondylitis and cubital tunnel syndrome.
Appellant also resubmitted an October 17, 2016 work capacity evaluation form (Form
OWCP-5c) from Dr. Powell indicating that he could only lift nine pounds at his last functional
capacity evaluation (FCE).
By decision dated May 31, 2017, OWCP denied appellant’s request for reconsideration
because it was untimely filed and failed to demonstrate clear evidence of error.
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, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).5 One such limitation provides that an application
for reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.6 The Board has found that the imposition of this one-year time limitation does
not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).7
Section 10.607(b) provides that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.9 The evidence must be positive, precise, and explicit and
must be manifest on its face that OWCP committed an error.10 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error.11 It is not enough merely to show that the evidence could be construed so

4

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

5

See Annette Louise, 54 ECAB 783, 789-90 (2003).

6

20 C.F.R. § 10.607(a).

7

See Jesus D. Sanchez, supra note 4; F.R., Docket No. 09-0575 (issued January 4, 2010).

8

20 C.F.R. § 10.607(b).

9

See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992).

10

See Fidel E. Perez, 48 ECAB 663, 665 (1997); M.L., Docket No. 09-956 (issued April 15, 2010).

11

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

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as to produce a contrary conclusion.12 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP.13
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error, but must be of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.14
The Board makes an independent determination of whether a claimant has submitted clear
evidence of error on the part of OWCP such that OWCP abused its discretion in denying merit
review in the face of such evidence.15
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. OWCP’s regulations and procedures establish a one-year time
limit for requesting reconsideration, which begins on the date of the original OWCP decision.16
The Board has held that for OWCP decisions issued on or after August 29, 2011, the date of the
application for reconsideration is the “received date” as recorded in Integrated Federal Employees’
Compensation System (iFECS).17 The most recent merit decision was OWCP’s May 9, 2016
decision denying appellant’s recurrence claim. Appellant had one year from the date of this
decision to make a timely request for reconsideration. Since his request was not received by
OWCP until May 12, 2017, it was filed outside the one-year time period.18 As appellant’s May 12,
2017 request for reconsideration was received more than one year after the May 9, 2016 merit
decision, it was untimely filed. Consequently, appellant must demonstrate clear evidence of error
by OWCP in the denial of his claim.19

12

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

13

See Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992).

14

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

15

See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

16

20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

17
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016); see
supra note 14.
18

OWCP’s procedures were changed effective August 29, 2011. Section 10.607 of the new regulations provides
that the date of the reconsideration request for timeliness purposes was changed from the date the request was mailed
to the date the request was received by OWCP. See 20 C.F.R. § 10.607 (2011); see also C.B., Docket No. 13-1732
(issued January 28, 2014) (where the Board held that for OWCP decisions issued on or after August 29, 2011, the date
of the application for reconsideration is the “received date” as recorded in iFECS). Therefore, OWCP utilized the
new regulations and found that as OWCP received appellant’s request for reconsideration on May 12, 2017, or over
one year after the May 9, 2016 decision, appellant’s request was untimely filed.
19

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

4

In its May 9, 2016 decision, OWCP denied appellant’s recurrence claim because the
evidence of record failed to establish that there was a material change in the nature and extent of
his injury-related condition, causing renewed disability for work as of March 31, 2010. It noted
that appellant was employed in a temporary position when he was injured and the temporary
limited-duty position he started performing on March 30, 2009 expired on March 30, 2010. In
support of his untimely request for reconsideration, appellant submitted a May 8, 2017 narrative
statement reiterating the factual history of his claim and an October 16, 2016 attending physician’s
report (Form CA-20) from Dr. Powell who diagnosed lateral epicondylitis and cubital tunnel
syndrome. He also resubmitted an October 17, 2016 work capacity evaluation form (Form
OWCP-5c) from Dr. Powell indicating that he could only lift nine pounds at his last FCE. The
Board finds that this evidence fails to provide a rationalized medical opinion explaining how
appellant’s assigned duties exceeded his physical limitations or caused or aggravated his accepted
right lateral epicondylitis condition. Thus, the Board finds that this evidence does not demonstrate
clear evidence of error because it does not show that OWCP committed an error in denying
appellant’s recurrence claim, nor raise a substantial question as to the correctness of OWCP’s
decision.
To demonstrate clear evidence of error, it is not sufficient merely to show that the evidence
could be construed so as to produce a contrary conclusion. The term clear evidence of error is
intended to represent a difficult standard.20 None of the evidence submitted manifests on its face
that OWCP committed an error in denying appellant’s claim for a recurrence of total disability.
Appellant has not otherwise submitted evidence of sufficient probative value to raise a substantial
question as to the correctness of OWCP’s decision. Thus, the evidence is insufficient to
demonstrate clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
because it was untimely filed and failed to demonstrate clear evidence of error.

20
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5.a (February 2016); see
Dean D. Beets, supra note 9.

5

ORDER
IT IS HEREBY ORDERED THAT the May 31, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 6, 2018
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, PORT ISABEL DETENTION
CENTER, Los Fresnos, TX, Employer
__________________________________________

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)
)

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

Docket No. 19-1111
Issued: November 20, 2019

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 April 19, 2019 appellant filed a timely appeal from a December 17, 2018 merit decision
and a January 30, 2019 nonmerit 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.
ISSUES
The issues are: (1) whether appellant has met his burden of to establish a recurrence of the
need for medical treatment causally related to his accepted June 29, 2007 employment injury; and
(2) whether OWCP properly denied appellant’s request for an oral hearing before an OWCP
hearing representative as untimely filed under 5 U.S.C. § 8124(b).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 3, 2007 appellant, then a 29-year-old immigration enforcement agent, filed a
traumatic injury claim (Form CA-1) alleging that on June 29, 2007 he injured his left knee when
he struck it on a wall attempting to complete a track obstacle course while in the performance of
duty. On September 6, 2007 OWCP accepted his claim for tear of the left medial meniscus and
sprain of the left cruciate ligament. On September 10, 2007 it entered appellant on the periodic
rolls for wage-loss compensation. On November 7, 2007 appellant returned to full-duty work with
a knee brace for jogging.
On April 22, 2013 appellant filed a notice of recurrence (Form CA-2a) for medical
treatment, alleging that on April 16, 2013 he sustained a recurrence of his June 29, 2007
employment injury. He alleged an onset of pain in his left knee on April 16, 2013 with no
precipitating event. Appellant asserted that his condition was causally related to his June 29, 2007
employment injury. On May 9, 2013 OWCP accepted that he had sustained a recurrence of his
June 29, 2007 medical conditions as well as expanded the acceptance of his claim to include the
additional conditions of chondromalacia left patella and left patellar tendinitis. It authorized wageloss compensation from June 24 through August 5, 2013. Appellant underwent a functional
capacity evaluation on November 5, 2013 and was found capable of returning to his date-of-injury
position performing heavy physical demands. His attending physician released him to full duty
on November 8, 2013.
On July 25, 2018 appellant again filed a notice of recurrence (Form CA-2a) for medical
treatment, alleging that on July 2, 2018 he sustained a recurrence causally related to his accepted
June 29, 2007 employment injury. He indicated that he was claiming medical treatment only
noting that, after returning to work, he experienced strength and stability issues and was required
to wear a knee brace, which hindered his reaction time, flexibility, and mobility. Appellant alleged
that during the month of June 2018 he had increased pain in his left knee limiting the time he could
stand, walk, or be active. He denied any new left knee injury and attributed his condition to his
June 29, 2007 employment injury. On the reverse side of the claim form, appellant’s supervisor
indicated that he had not returned to work and was in a leave without pay (LWOP) status.
In a note dated July 2, 2018, Dr. Francisco Garcia, a Board-certified orthopedic surgeon,
examined appellant and noted a current tear of medial cartilage or meniscal tear and sprain of the
cruciate ligament with an onset of August 27, 2007. He indicated that on physical examination
appellant exhibited persistent atrophy, degenerative changes, and limited range of motion in the
left knee. Dr. Garcia reported moderate atrophy of the quadriceps with limited painful range of
motion along with patellofemoral crepitus and moderate medial joint tenderness and effusion. He
reviewed appellant’s left knee x-rays and diagnosed sprain of the cruciate ligament of the left2
knee and posterior cruciate ligament injury with post-traumatic osteoarthritis.3 Dr. Garcia noted
2
Dr. Garcia mentions a right knee sprain of the cruciate ligament, but as the remainder of the report focuses on
appellant’s left knee conditions and examinations, the Board considers this to be a typographical error.

Dr. Garcia indicated that appellant’s knee condition was “the least of his problems.” He found appellant was also
disabled due to the additional conditions of retinal detachment, diabetic retinopathy as well as neuropathy. Dr. Garcia
noted that appellant was interested in retiring from government service.
3

2

that appellant requested a cortisone shot in his left knee, but questioned whether this was
appropriate given appellant’s medical conditions.
In an October 17, 2018 development letter, OWCP advised appellant of the deficiencies of
his recurrence claim. It requested additional factual and medical evidence from him, and provided
a questionnaire for his completion. OWCP requested bridging information for the period
November 8, 2013 through the present including a history of intervening injuries, diagnostic test
results, and treatment reports from appellant’s physician. It afforded him 30 days to respond.
On October 24, 2018 appellant completed OWCP’s questionnaire and reported that
symptoms of pain in his left knee began in March 2018 without any additional incident or injury.
He experienced difficulty standing and walking. Appellant noted that following the 2013
recurrence he had resumed working and training without any problems and had not sustained any
new injury. He reported in 2013 that he received a cortisone shot and a knee brace which allowed
him to maintain mobility and function until March 2018 when he sought additional medical
treatment. Appellant reported that the July 2, 2018 recurrence occurred while he was in nonpay
status, but still an employee of the employing establishment and that he had not returned to work.
By decision dated December 17, 2018, OWCP denied appellant’s claimed recurrence of
medical treatment on July 2, 2018 as causally related to his June 29, 2007 employment injuries of
tear of the medial meniscus of the left knee, sprain of the left cruciate ligament, chondromalacia
on the left patella, and patellar tendinitis of the left knee. It noted that he had returned to full duty
following his June 29, 2007 employment injury, and the medical evidence did not establish causal
relationship between his current diagnosed condition and his accepted employment injury.
In a request for an oral hearing postmarked January 17, 2019, appellant requested an oral
hearing with a representative of OWCP’s Branch of Hearings and Review to review the
December 17, 2018 OWCP decision.
By decision dated January 30, 2019, OWCP’s Branch of Hearings and Review denied
appellant’s request for an oral hearing finding that his request for review was postmarked on
January 17, 2019, more than 30 days after the December 17, 2018 decision. It further exercised
its discretion and determined that the issue in the case could equally well be addressed by
requesting reconsideration and submitting evidence not previously considered which established
that he sustained a recurrence of the need for medical treatment due to the June 29, 2007
employment injury.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of a medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage.4 An employee has the burden of proof to establish that he or she

4

20 C.F.R. § 10.5(y).

3

sustained a recurrence of a medical condition that is causally related to his or her accepted
employment injury without intervening cause.5
If a claim for recurrence of medical condition is made more than 90 days after release from
medical care, a claimant is responsible for submitting a medical report supporting a causal
relationship between the employee’s current condition and the original injury in order to meet his
or her burden of proof.6
To meet this burden the claimant must submit medical evidence from a physician who, on
the basis of a complete and accurate factual and medical history, supports that the condition is
causally related and supports his or her conclusion with sound medical rationale.7 Where no such
rationale is present, medical evidence is of diminished probative value.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment causally related to his accepted June 29, 2007 employment injury.
OWCP accepted appellant’s original claim for tear of the left medial meniscus and sprain
of the left cruciate ligament as a result of the June 29, 2007 employment injury. Appellant stopped
work on April 16, 2013 and OWCP accepted that he had sustained a recurrence of his June 29,
2007 employment injury and also expanded the acceptance of his claim to include the additional
conditions of chondromalacia left patella and left patellar tendinitis. He returned to full duty on
November 8, 2013. On July 25, 2018 appellant claimed a recurrence of medical treatment only
commencing on July 2, 2018 due to the accepted June 29, 2007 employment injury.
Appellant submitted a report dated July 2, 2018 from Dr. Garcia who noted appellant’s
previously accepted conditions and reported that appellant had moderate atrophy of the quadriceps,
painful limited range of motion in the left knee, patellofemoral crepitus, and moderate medial joint
tenderness and effusion on physical examination. Dr. Garcia diagnosed a sprain of the cruciate
ligament of the left knee and left posterior cruciate ligament injury with post-traumatic
osteoarthritis. He noted that appellant had requested a cortisone shot in his left knee, but
questioned whether this treatment was appropriate.
Dr. Garcia did not causally relate appellant’s current conditions of sprain of the cruciate
ligament of the left knee and left posterior cruciate ligament injury with post-traumatic

5
M.P., Docket No. 19-0161 (issued August 16, 2019); E.G., Docket No. 18-1383 (issued March 8, 2019); T.B.,
Docket No. 18-0762 (issued November 2, 2018); E.R., Docket No. 18-0202 (issued June 5, 2018).
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4(b) (June 2013); see also
J.M., Docket No. 09-2041 (issued May 6, 2010).
7

A.C., Docket No. 17-0521 (issued April 24, 2018); O.H., Docket No. 15-0778 (issued June 25, 2015).

8

O.H., id.; Michael Stockert, 39 ECAB 1186 (1988); see Ronald C. Hand, 49 ECAB 113 (1997).

4

osteoarthritis to the accepted June 29, 2007 employment injury.9 As OWCP has not accepted posttraumatic osteoarthritis as causally related to the June 29, 2007 employment injury, supportive
medical evidence is required to meet appellant’s burden of proof.10 While he mentioned the prior
injuries in his July 2, 2018 report, Dr. Garcia did not provide a definite opinion on causal
relationship between appellant’s various diagnosed conditions and his accepted employment
conditions as required to establish appellant’s recurrence claim.11 Furthermore, he did not offer
any medical explanation of how the accepted conditions for which appellant last received treatment
in 2013, resulted in further diagnoses and need for additional treatment five years later.12 Finally,
Dr. Garcia failed to explain that appellant’s current need for further medical care was due to his
accepted June 29, 2007 employment conditions.13 As appellant filed the recurrence of the need
for medical treatment more than 90 days following his last medical treatment for his accepted
employment conditions, he was required to submit a rationalized medical opinion establishing
causal relationship between his current condition and the original employment injury.14 A
physician must provide an opinion that the employment injury caused or contributed to the
claimant’s diagnosed medical condition, supported by medical reasoning sufficient to demonstrate
that the conclusion reached is sound, logical, and rational.15 The Board finds that Dr. Garcia
provided a conclusory opinion which did not include a rationalized medical opinion establishing
that appellant required further medical care after November 8, 2013 causally related to his accepted
June 29, 2007 employment injury. Therefore, the Board finds that Dr. Garcia’s report is
insufficient to establish appellant’s recurrence claim.16
As appellant has not submitted medical evidence sufficient to establish a recurrence of the
need for medical treatment causally related to his accepted June 29, 2007 employment injury, the
Board finds that he has not met his burden of proof.17
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

9

C.B., Docket No. 19-0121 (issued July 2, 2019); E.G., supra note 5; Docket No. 18-1383 (issued March 8, 2019).

10

E.G., id.

11
See H.A., Docket No. 18-1466 (issued August 23, 2019) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal relationship).
12

See id.; (medical evidence must also include rationale explaining how the physician reached the conclusion he or
she is supporting).
13

T.M., Docket No. 18-1418 (issued February 7, 2019).

14

Supra note 6.

15

A.C., supra note 7; John W. Montoya, 54 ECAB 306 (2003).

16

A.C., id.; G.G., Docket No. 18-1788 (issued March 26, 2019).

17

A.C., id.; K.G., Docket No. 15-0669 (issued April 8, 2016).

5

LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
OWCP hearing representative, provides that a claimant is entitled to a hearing before an OWCP
representative when a request is made 30 days after the date of the issuance of an OWCP final
decision.18
A hearing is a review of an adverse decision by an OWCP hearing representative. Initially,
the claimant can choose between either an oral hearing or a review of the written record. In
addition to the evidence of record, the claimant may submit new evidence to the hearing
representative.19 A request for either an oral hearing or a review of the written record must be
sent, in writing, within 30 days of the date of the decision for which the hearing is sought.20 A
claimant is not entitled to a hearing or a review of the written record if the request is not made
within 30 days of the date of the decision.21
OWCP has discretion to grant or deny a request that is made after the 30-day period for
requesting an oral hearing or review of the written record and must properly exercise such
discretion.22
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s January 17, 2019 request for an
oral hearing before an OWCP hearing representative as untimely filed pursuant to 5 U.S.C.
§ 8124(b).
OWCP’s regulations provide that the hearing request must be sent within 30 days of the
date of the decision for which a hearing is sought.23 As his request was postmarked24 January 17,

18

5 U.S.C. § 8124(b)(1).

19

20 C.F.R. § 10.615.

20

Id. at § 10.616(a); B.H., Docket No. 18-0874 (issued October 10, 2018); James Smith, 53 ECAB 188 (2001).

21

B.H., id.

22

20 C.F.R. § 10.616(b); Id.

23

See supra note 8.

24

Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis
of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4a (October 2011).

6

2019, more than 30 days after OWCP’s December 17, 2018 decision, it was untimely filed and he
was not entitled to an oral hearing as a matter of right.25
The Board further finds that OWCP properly exercised its discretion in denying appellant’s
request for an oral hearing by determining that the issue in the case could be addressed equally
well through a request for reconsideration and the submission of new evidence relevant to the issue
of causal relationship between the accepted employment injury on June 29, 2007 and the claimed
July 25, 2018 recurrence of the need for medical treatment.26 The Board has held that the only
limitation on OWCP’s discretionary authority is reasonableness. An abuse of discretion is
generally shown through proof of manifest error, a clearly unreasonable exercise of judgment, or
actions taken which are contrary to logic and probable deduction from established facts.27 In this
case, the evidence of record does not establish that OWCP abused its discretion in denying
appellant’s request for an oral hearing. Accordingly, the Board finds that OWCP properly denied
his January 17, 2019 request for an oral hearing as untimely filed pursuant to 5 U.S.C. § 8124(b).28
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment causally related to his accepted June 29, 2007 employment injury.
The Board further finds that OWCP properly denied appellant’s January 17, 2019 request for an
oral hearing before an OWCP hearing representative as untimely filed pursuant to 5 U.S.C.
§ 8124(b).

25

See B.W., Docket No. 16-1860 (issued May 4, 2017) (in computing a time period, the date of the event from
which the designated period of time begins to run shall not be included while the last day of the period shall be
included). In this case, appellant’s request for an oral hearing was postmarked on January 17, 2019, the 31st day after
the issuance of the December 17, 2018 OWCP decision.
26

Id.

27

Id.; Teresa M. Valle, 57 ECAB 542 (2006).

28

See supra note 19.

7

ORDER
IT IS HEREBY ORDERED THAT the January 30, 2019 and December 17, 2018
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 20, 2019
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

8