United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF VETERANS AFFAIRS,
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VETERANS AFFAIRS WESTERN COLORADO )
HEALTH CARE SYSTEM, Grand Junction, CO, )
Employer
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__________________________________________ )
T.T., Appellant

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

Docket No. 20-0383
Issued: August 3, 2020

Case Submitted on the Record

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

JURISDICTION
On December 9, 2019 appellant filed a timely appeal from an October 16, 2019 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

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the October 16, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on December 5, 2018, as alleged.
FACTUAL HISTORY
On December 6, 2018 appellant, then a 46-year-old health technician, filed a traumatic
injury claim (Form CA-1) alleging that, on December 5, 2018 at 4:20 p.m., she hit her head and
back and injured her left arm when trying to prevent herself from falling after she slipped on ice
when stepping out of her truck while in the performance of duty. Her regular work hours were
listed as 8:00 a.m. to 4:30 p.m. On the reverse side of the claim form, the employing establishment
controverted appellant’s claim noting that she was starting her vehicle to get it warm before she
left work and was thus not injured in the performance of duty. Appellant did not stop work.
X-ray views of appellant’s left shoulder, dated December 6, 2018, revealed no fracture or
other significant abnormalities. X-ray views of her chest of the same date showed cardiomegaly.
In a December 6, 2018 emergency room discharge report, Dr. David Dreitlein, a Boardcertified specialist in emergency medicine, noted that appellant slipped on ice while at work. He
reviewed x-rays of her left shoulder and chest and diagnosed left shoulder sprain. In an
accompanying work excuse note, Dr. Dreitlein noted that appellant should not work with her left
arm until released.
In a December 7, 2018 duty status report (Form CA-17), Dr. John Best, an osteopath
specializing in family medicine, noted that appellant slipped on ice before leaving work. He
diagnosed left shoulder sprain and listed her work restrictions. Dr. Best indicated that appellant
could return to work with restrictions.
Dr. Best reported in a note dated December 14, 2018 that appellant had been wearing a
sling and limiting use of her left shoulder. He examined her and diagnosed left shoulder pain and
persistent shoulder and thoracic muscle spasm. Dr. Best recommended physical therapy treatment
and continued work restrictions.
In a January 4, 2019 note, Dr. Best noted that appellant had left shoulder inflammation and
swelling. He indicated that she had visible muscular asymmetry of the left shoulder and diagnosed
a left shoulder strain. Dr. Best recommended continued physical therapy treatment and work
restrictions. In an accompanying Form CA-17 report, he diagnosed left shoulder strain and
indicated that appellant could not perform full-duty work. Dr. Best noted that she should not use
her left arm.
Appellant submitted physical therapy treatment notes dated January 4 through
March 22, 2019.
In a May 2, 2019 development letter,3 OWCP indicated that when appellant’s claim was
first received it appeared to be a minor injury that resulted in minimal or no lost time from work
3

OWCP previously sent this letter on April 16, 2019 to a different address.

2

and, based on these criteria and because the employing establishment had not controverted
continuation of pay or otherwise challenged the case, payment of a limited amount of medical
expenses was administratively approved. It explained that it had reopened the claim for
consideration because her medical expenses had exceeded $1,500.00. OWCP requested additional
factual and medical evidence in support of appellant’s claim and provided a questionnaire for her
completion.
In a separate development letter dated April 16, 2019, it requested that the employing
establishment provide additional information regarding appellant’s traumatic injury claim,
including information about the parking lot and policies regarding use of the parking lot where she
was injured. OWCP afforded both parties 30 days to submit the necessary evidence. No additional
evidence was received.
By decision dated June 3, 2019, OWCP denied appellant’s traumatic injury claim, finding
that she had not established that the December 5, 2018 traumatic injury occurred in the
performance of duty, as alleged. It noted that she had failed to respond to its development
questionnaire and thus, it could not determine if she had diverted from her assigned duties. OWCP
concluded that “the requirements have not been met for establishing that [appellant] sustained an
injury and/or medical condition that arose during the course of employment and within the scope
of compensable work factors as defined by FECA.”
In a partially legible March 17, 2019 Form CA-17 report, a physician with an illegible
signature diagnosed left shoulder pain and listed appellant’s work restrictions.
In a May 24, 2019 report, Dr. Mark Luker, a Board-certified orthopedic surgeon, noted that
appellant had pain in the shoulder and scapular spine region. He indicated that she had some
weakness and numbness in her left hand and arm. Dr. Luker examined appellant and diagnosed
left scapula pain and scapular dyskinesis.
On June 3, 2019 appellant responded to OWCP’s development questionnaire. She noted
that she slipped on ice in a parking lot while turning on the heat for her car before leaving for work.
Appellant indicated that the employing establishment rented the parking lot and that she was
required to park in the lot. She further stated that she was on a break when the incident occurred
and that she was performing an accepted practice of employment at the time of her injury.
On July 17 and August 20, 2019 appellant requested reconsideration. In an accompanying
statement, she alleged that her fall occurred during her scheduled work hours in the parking lot
where the employing establishment was located.
Appellant submitted a December 14, 2018 appointment reminder showing an appointment
with Dr. Best on January 4, 2019. She also submitted appointment reminders, dated January 11
through February 8, 2019, showing appointments for physical therapy treatment.
By decision dated October 16, 2019, OWCP denied modification of the June 3, 2019
decision finding that the evidence of record did not establish that appellant was on an authorized
break when she slipped on ice. It stated, “[s]tepping outside to warm up your personal vehicle
before you are scheduled to leave work is not a work[-]related function.” OWCP thus concluded
that appellant was not injured in the performance of duty.
3

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
The phrase “sustained while in the performance of duty” has been interpreted by the Board
to be the equivalent of the commonly found prerequisite in workers’ compensation law of “arising
out of and in the course of employment.”8 To arise in the course of employment, in general, an
injury must occur: (1) at a time when the employee may reasonably be stated to be engaged in the
master’s business; (2) at a place when he or she may reasonably be expected to be in connection
with his or her employment; and (3) while he or she was reasonably fulfilling the duties of his or
her employment or engaged in doing something incidental thereto.9
It is well established as a 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.10 The Board has previously found that the term “premises” as it is
generally used in workers’ compensation law, is not synonymous with “property” because it does
not depend solely on ownership. The term “premises” may include all the property owned by the
employing establishment. In other instances, even if the employing establishment does not have
ownership and control of the place of injury, the place may nevertheless still be considered part of
the “premises.”11

4

Supra note 1.

5
S.S., Docket No. 19-1815 (issued June 26, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6

M.H., Docket No. 19-0930 (issued June 17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
7

S.A., Docket No. 19-1221 (issued June 9, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C.
Ellyett, 41 ECAB 992 (1990).
8

C.L., Docket No. 19-1985 (issued May 12, 2020); S.F., Docket No. 09-2172 (issued August 23, 2010); Valerie C.
Boward, 50 ECAB 126 (1998).
9
S.V., Docket No. 18-1299 (issued November 5, 2019); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Mary
Keszler, 38 ECAB 735, 739 (1987).
10

R.K., Docket No. 18-1269 (issued February 15, 2019); Narbik A. Karamian, 40 ECAB 617, 618 (1989); Eileen R.
Gibbons, 52 ECAB 209 (2001).
11

C.L., Docket No. 18-0812 (issued February 22, 2019); Wilmar Lewis Prescott, 22 ECAB 318, 321 (1971).

4

The Board has also held that factors which determine whether a parking area 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 in the garage were assigned by the employing establishment to its
employees, whether the parking areas were checked to see that no authorized cars were parked in
the garage, whether parking was provided without cost to the employees, whether the public was
permitted to use the garage, and whether other parking was available to the employees. Mere use
of a parking facility alone is insufficient to bring the parking garage within the premises of the
employing establishment. The premises doctrine is applied to those cases where it is affirmatively
demonstrated that the employing establishment owned, maintained, or controlled the parking
facility, used the facility with the owner’s special permission, or provided parking for its
employees.12
Injuries arising on the premises may be approved if the employee was engaged in activity
reasonably incidental to the employment, such as: (a) personal acts for the employee’s comfort,
convenience, and relaxation; (b) eating meals and snacks on-premises; or (c) taking authorized
coffee breaks.13
ANALYSIS
The Board finds that this case is not in posture for decision.
In determining whether a parking lot should be considered part of the employing
establishment’s premises, the Board must consider such factors as whether the employing
establishment contracted for its exclusive use by its employees, whether the employing
establishment assigned spaces, whether the area was checked to see that no unauthorized cars were
parked in the lot, whether the public was permitted to use the lot, whether parking was provided
without cost to the employees, and whether employees were reimbursed for parking expenses.14
In her June 3, 2019 response to OWCP’s development questionnaire, appellant asserted
that she was required to park in “an agency parking lot.” She alleged that the employing
establishment rented, but did not own the parking lot. OWCP’s procedures provide that it should
obtain relevant information from an official superior if it requires clarification before determining

12
C.L., supra note 8; R.K., supra note 10; Diane Bensmiller, 48 ECAB 675 (1997); Rosa M. Thomas-Hunter,
2 ECAB 500 (1991); Edythe Erdman, 36 ECAB 597 (1985); Karen A. Patton, 33 ECAB 487 (1982); R.M., Docket
No. 07-1066 (issued February 6, 2009).
13

C.P., Docket No. 18-1741 (issued July 5, 2019); A.P., Docket No. 18-0886 (issued November 16, 2018); T.L.,
59 ECAB 537 (2008).
14

D.C., Docket No. 19-0846 (issued October 17, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Performance of Duty, Chapter 2.804.4(f) (August 1992); see also id. Chapter 2.804.4(b). (If the employee has a fixed
place of work, the claims examiner (CE) must ascertain whether the employee was on the premises when the injury
occurred. The answers to the appropriate sections of CA-1, CA-2, and CA-6 forms contain information on this point.
If clarification is needed, it should be secured from the official superior in the form of a statement which describes the
boundaries of the premises and shows whether the employee was within those boundaries when the injury occurred.
Where indicated, the clarification should include a diagram showing the boundaries of the industrial premises and the
location of the injury site in relation to the premises).

5

whether or not the employee was on the premises.15 Its procedures further provide that it should
request that an official superior confirm whether the parking facilities are owned, controlled, or
managed by the employing establishment.16 While OWCP sent an April 16, 2019 development
letter to the employing establishment requesting this information, it did not receive a response. As
such, it failed to obtain a statement from the employing establishment in accordance with its
procedures.
The lack of a response from the employing establishment also precludes a full and fair
adjudication of whether appellant remained in the performance of duty at the time of her fall.
OWCP requested information from the employing establishment regarding ownership, control,
and permitted usage of the parking lot. In J.O.,17 the Board found that an employee was injured
in the performance of duty when cleaning snow from her car in the employing establishment’s
parking lot, on premises, during a lunch break because she was engaged in an act reasonably
incidental to personal comfort, at the time of the incident. In the present case, it is unclear if
appellant was on an authorized break or if she was on premises because the employing
establishment did not respond to OWCP’s April 16, 2019 development letter. OWCP’s procedures
provide that it should obtain relevant information from an official superior to determine whether
the act was one which is regarded as a normal incident of the work experience, or was one which
is foreign or extraneous to the work experience, and the extent to which the employee diverted
from duty to perform the act.18 It, however, failed to obtain a statement from the employing
establishment in accordance with its procedures prior to finding that appellant was not on an
authorized work break when injured.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While appellant has the burden of proof to establish entitlement to compensation, OWCP shares
the responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment or other governmental source.19
The Board finds that OWCP insufficiently developed the evidence regarding whether she was on
the premises of the employing establishment and whether she was on an authorized break at the
time of injury.20
On remand OWCP should obtain clarifying information from the employing establishment
regarding whether the parking lot was owned, managed, or controlled by the employing
establishment and thus part of the premises. Further, as appellant contended that she was
15

Id.

16

Id.

17

Docket No. 09-1432 (issued February 2, 2010); see also J.R., Docket No. 16-1005 (issued September 23, 2016).

18

Supra note 14 at Chapter 2.804.7(b)(1) (August 1992).

19

D.C., supra note 14.

20
Id.; see also supra note 14 at Chapter 2.800.5(d)(1) (If an employing establishment fails to respond to a request
for comments on the claimant’s allegations, the CE may usually accept the claimant’s statements as factual. However,
acceptance of the claimant’s statements as factual is not automatic in the absence of a reply from the employing
establishment, especially in instances where performance of duty is questionable. The Board has consistently held
that allegations unsupported by probative evidence are not established).

6

performing an accepted practice of employment at the time of her injury, the employing
establishment should be requested to address this contention. Following this and such other further
development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 16, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 3, 2020
Washington, DC

Christopher J. Godfrey, Deputy 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

7


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

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

Docket No. 11-1695
Issued: February 7, 2012

Case Submitted on the Record

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

JURISDICTION
On July 15, 2011 appellant filed a timely appellant from a February 11, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. As the last merit decision was issued on July 15, 2010, more than 180 days
from the filing of the appeal, the Board lacks jurisdiction over the merits of this case.1 Pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the February 11, 2011 nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen her case for
further review of the merits under 5 U.S.C. § 8128(a).

1

See 20 C.F.R. § 501.3(e).

2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 21, 2000 appellant, then a 46-year-old distribution window clerk, filed a
traumatic injury claim alleging that on that date she injured her left leg, right arm and head when
she tripped and fell in the performance of duty. OWCP accepted the claim for right lateral
epicondylitis, lumbar sprain and right shoulder impingement. Appellant worked limited-duty
employment following her injury.
In decisions dated December 8, 2006 and February 12, 2007, OWCP found that appellant
had not established a recurrence of disability beginning June 15, 2006 due to her September 21,
2000 work injury.3 By decision dated November 23, 2009, OWCP terminated her compensation
and authorization for medical treatment effective December 20, 2009.4 It found that the opinion
of Dr. Alexander Doman, a Board-certified orthopedic surgeon, who provided a second opinion
examination, constituted the weight of the evidence and established that she had no further
disability or need for medical treatment due to her September 21, 2000 employment injury.5
On December 3, 2009 appellant requested reconsideration and related that she would be
submitting supporting medical evidence. In a decision dated December 18, 2009, OWCP denied
her request for reconsideration after finding that she had not submitted supporting evidence or
argument sufficient to warrant reopening her case for further review of the merits of her case
under section 8128.6
On April 30, 2010 appellant requested reconsideration. In a decision dated July 15, 2010,
OWCP denied modification of its November 23, 2009 termination decision.
On January 19, 2011 appellant requested reconsideration. She argued that Dr. Dorman
found that her impingement syndrome, lumbar strain and knee injury had resolved based on
x-ray studies even though magnetic resonance imaging (MRI) studies of the left knee showed a
medial meniscus tear and MRI scan studies of the lumbar spine. Appellant described the
findings on lumbar MRI scan studies dated June 10, 2002, January 26, 2006, March 30, 2007 and
October 21, 2010.
3

In a decision dated February 3, 2006, OWCP granted appellant a schedule award for a one percent permanent
impairment of the right upper extremity. By decision dated April 6, 2007, it denied modification of the February 3,
2006 schedule award determination. In a nonmerit decision dated May 8, 2007, OWCP denied appellant’s request
for reconsideration of the schedule award.
4

OWCP noted in its proposed notice termination of compensation that appellant received medical benefits under
this file number. It indicated in its November 23, 2009 decision that it was terminating her compensation and
entitlement to medical treatment. As OWCP was not paying appellant compensation under this file number,
however, it improperly characterized the issue as termination of wage-loss compensation. The issue was whether
appellant has residuals of her employment injury entitling her to further medical treatment.
5

In a report dated June 16, 2009, Dr. Doman diagnosed fibromyalgia unrelated to appellant’s accepted work
injury. He found that she had no residuals of her accepted work injury but had mild left knee osteoarthritis not due
to her employment.
6

By decision dated December 30, 2009, OWCP denied appellant’s claim for an increased schedule award after
finding that she had not submitted any supportive medical evidence.

2

On January 28, 2011 appellant submitted a copy of her request for reconsideration in
another file number and copies of psychiatric reports and evaluations from 2005 to 2009
associated with the other file number. By letter dated January 30, 2011, appellant indicated that
she had submitted MRI scan studies with her request for reconsideration and was awaiting
approval for medical benefits for her lumbar condition.
By decision dated February 11, 2011, OWCP denied appellant’s request for
reconsideration after finding that the evidence submitted was insufficient to warrant reopening
her case for further merit review. It further informed her that her left knee condition was
associated with another file number.
On appeal appellant argues that she continued to require medical treatment for her lumbar
spine. She noted that Dr. Doman diagnosed fibromyalgia of the left leg but OWCP did not
accept the condition and did not approve treatment with a psychologist.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,7
OWCP’s regulations provide that 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.8 To be entitled to a merit review of an OWCP 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.9 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.10
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.11 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.12 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.13
7

5 U.S.C. § 8101 et seq. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award
for or against payment of compensation at any time on her own motion or on application.”
8

20 C.F.R. § 10.606(b)(2).

9

Id. at § 10.607(a).

10

Id. at § 10.608(b).

11

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

12

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB
180 (2000).
13

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

3

ANALYSIS
OWCP terminated appellant’s entitlement to medical benefits effective December 20,
2009 after finding that the weight of the medical evidence established that she had no further
residuals of her September 21, 2000 employment injury, accepted for right lateral epicondylitis,
lumbar sprain and right shoulder impingement. On January 19, 2011 appellant requested
reconsideration of the termination of her medical benefits.
As noted above, the Board does not have jurisdiction over the merits of the case. The
issue presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the case. In her
January 2011 request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law. She did not identify a specific point of law or show that it
was erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument. She maintained that Dr. Doman disregarded the findings on MRI scan study in
determining that she had no residuals of her impingement syndrome, lumbar strain and knee
injury.14 OWCP, however, found that Dr. Doman’s opinion represented the weight of the
evidence, and appellant has not submitted any medical evidence or raised a legal argument
sufficient to warrant reopening her case for further merit review. The issue of whether she
requires further medical treatment due to her September 21, 2000 employment injury is a
medical issue which must be addressed by relevant medical evidence.15
Appellant further summarized the findings on MRI scan study of the knee and lumbar
spine and argued that the studies showed that her lumbar spine and knee conditions had not
resolved. As discussed, however, the underlying issue is whether the medical evidence
establishes that appellant has a further need for medical treatment due to residuals of her
September 21, 2000 employment injury. Her lay opinion is not relevant to the medical issue in
this case, which can only be resolved through the submission of probative medical evidence from
a physician.16 A claimant may also be entitled to a merit review by submitting pertinent new and
relevant evidence not previously considered but appellant did not submit any pertinent new and
relevant medical evidence in this case.17 She submitted reports from psychologist and
psychiatrists in connection with another file number; however, these reports are not relevant to
the issue of whether she had any need for further medical treatment for her right lateral
epicondylitis, lumbar strain or right shoulder impingement. Evidence that does not address the
particular issue involved does not warrant reopening a case for merit review.18

14

As indicated by OWCP, appellant’s knee condition is associated with another file number.

15

See Bobbie F. Cowart, 55 ECAB 746 (2004).

16

Gloria J. McPherson, 51 ECAB 441 (2000); L.G., Docket No. 09-1517, (issued March 3, 2010).

17

Appellant indicated that she was submitting MRI scan studies; however, there were no MRI scan studies
accompanying her letter. The record contains MRI scan studies previously submitted and considered by OWCP.
18

J.P., 58 ECAB 289 (2007); Freddie Mosley, 54 ECAB 255 (2002).

4

On appeal appellant argues that she continued to require medical treatment for her lumbar
spine; however, as noted, her lay opinion does not constitute relevant evidence.19 She asserted
that OWCP should have accepted fibromyalgia based on Dr. Doman’s report and also should
have approved treatment by a psychologist. Dr. Doman, however, found that the fibromyalgia
was unrelated to employment. Regarding treatment with a psychologist, as previously discussed
the relevant issue in this case is whether she has any further need for medical treatment due to
her September 21, 2000 work injury.20
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). She 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 new evidence not previously considered. OWCP properly denied
merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen her case for
further review of the merits under 5 U.S.C. § 8128.

19

See supra note 16.

20

It is appellant’s burden to establish conditions not accepted by OWCP as employment related through the
submission of rationalized medical evidence. See JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the February 11, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 7, 2012
Washington, DC

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

Alec J. Koromilas, 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.B., Appellant
and
U.S. POSTAL SERVICE, HAMPTON MAIN
POST OFFICE, Hampton, VA, Employer
__________________________________________

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

Docket No. 10-2082
Issued: June 9, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 11, 2010 appellant filed a timely appeal of the April 26, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error. Because more than 180 days elapsed from the most recent merit decision dated
December 23, 2008 to the filing of this appeal, the Board lacks jurisdiction to review the merits
of this case pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c)
and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
On appeal, appellant contends that her continuing back pain is causally related to an
employment-related left knee injury.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The Office accepted that on July 27, 2005 appellant, then a 53-year-old letter carrier,
sustained a back sprain/strain, sprain of the sacroiliac ligament and sacroilitis as a result of
delivering packages on her route. Following the injury, she performed limited-duty work. On
August 8, 2007 Dr. Robert S. Winfield, an attending Board-certified physiatrist, released
appellant to return to her regular work duties with no physical limitations.
On September 24, 2008 appellant filed a claim alleging that she sustained a recurrence of
disability on September 7, 2007. In an undated narrative statement, she related that, due to a left
knee injury, she shifted all of her weight to her right side which caused back pain. Appellant
underwent left knee surgery on January 16, 2008.
Medical reports dated February 15 through October 29, 2008 noted that appellant had
sacroilitis, left knee problems, right-sided S1 dysfunction, lumbar sprain and right hip pain.
Appellant underwent physical therapy to treat her back pain.
In a December 23, 2008 decision, the Office denied appellant’s claim, finding the
medical evidence insufficient to establish that she sustained a recurrence of disability
commencing September 7, 2007 due to her July 27, 2005 employment injuries.
On January 23, 2009 appellant requested an oral hearing before an Office hearing
representative. In medical reports dated September 24 through December 29, 2008, Dr. Winfield
advised that she had a sacroilitis condition, right hip pain. In a January 20, 2009 report, he
advised that appellant was released to full-duty work as of August 3, 2007. Dr. Winfield noted
that she had left knee problems for which she underwent arthroscopic surgery. He advised that
appellant sustained a recurrence of employment-related right sacroilitis condition due to her left
knee problems which required her to change her gait. Dr. Winfield concluded that she was no
longer disabled due to the accepted condition and that she had returned to full-duty work.
In a March 18, 2009 decision, the Office’s Branch of Hearings and Review denied
appellant’s request for an oral hearing on the grounds that it was postmarked January 23, 2009,
more than 30 days after the December 23, 2008 decision. It exercised its discretion and
determined that the issue in the case could be addressed equally well through a reconsideration
request and the submission of new evidence establishing that she sustained a recurrence of
disability causally related to her July 27, 2005 employment injuries.
By letter dated March 12, 2010, appellant requested reconsideration. Reports from
physical therapists addressed the treatment of her back, left leg and right hip pain from
February 25, 2008 to January 19, 2009. In a July 9, 2007 report, a physical therapist stated that a
functional capacity evaluation demonstrated that appellant had no physical limitations related to
her employment-related right sacroiliac joint condition.
In addition to the prior progress reports of Dr. Winfield previously submitted, appellant
submitted an August 19, 2008 report, wherein the physician indicated that he injected her right
sacroiliac joint to treat her sacroilitis.

2

In reports dated December 18, 2008 through December 3, 2009, Dr. Jeffrey R. Carlson, a
Board-certified orthopedic surgeon, listed his findings on physical and x-ray examination and
diagnosed right hip pain and osteoarthritis, low back pain, L4-5 and L5-S1 degenerative disc
disease and spondylolisthesis. He advised that appellant’s chronic right hip and lower back pain
may have developed over a number of years as she had no distinct work episode. Dr. Carlson
further advised that her back problems may have been related to her hip problems. He stated that
as of December 3, 2009 appellant could be as active as she felt comfortable.
In a December 30, 2008 report, Dr. Robert J. Snyder, a Board-certified orthopedic
surgeon, advised that an x-ray demonstrated severe bone changes in the right hip. In a
January 23, 2009 note, he indicated that appellant was scheduled to undergo right total hip
replacement surgery, which he performed on January 28, 2009. In a February 26, 2009 report,
Dr. Snyder opined that her right hip pain and arthritis were work related since she did not have
any recognizable cause for her pain. In a February 10, 2009 treatment note, he advised that
appellant was doing well following her total right hip replacement surgery. In treatment notes
dated March 24 and April 28, 2009, Dr. Snyder indicated that she was still recovering from her
right hip replacement surgery. Appellant was still out of work. In a May 1, 2009 addendum to
the April 28, 2009 treatment note, Dr. Snyder advised that x-rays of her right hip confirmed her
hip replacement with components in place with no acute changes. In an April 17, 2009 report, he
advised that appellant was out of work until May 24, 2009 due to her right total hip replacement
surgery which was due to an employment-related injury. On May 19, 2009 Dr. Snyder released
her to return to light-duty work on June 1, 2009. In a July 16, 2009 report, he noted appellant’s
symptoms of gluteal and right thigh pain. Dr. Snyder advised that an x-ray of the low back
confirmed L4-5 spondylolisthesis. He recommended additional diagnostic testing and concluded
that it appeared that components of the back and hip produced appellant’s inability to return to
full-duty work. In a July 31, 2009 treatment note, Dr. Snyder advised that a magnetic resonance
imaging (MRI) scan confirmed that she had foraminal narrowing at L4-5 and L5-S1. He
believed that the condition accounted for appellant’s gluteal and thigh pain.
A July 23, 2009 lumbar spine MRI scan report from Dr. Charles M. Hecht-Leavitt, a
Board-certified radiologist, advised that appellant had L5-S1 diffuse disc bulging with
accompanying osteophytes and four-millimeter retrolisthesis resulting in moderate bilateral
lateral recess and mild-to-moderate bilateral neural foraminal stenosis. Appellant also had L4-5
bilateral facet joint arthrosis with three- to four-millimeter anterolisthesis mildly narrowing the
lateral recesses and mild-to-moderate narrowing of the neural foramina.
In an April 26, 2010 decision, the Office denied appellant’s March 12, 2010 request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error in the last merit decision dated December 23, 2008.2

2

On appeal, appellant has submitted new evidence. However, the Board cannot consider evidence that was not
before the Office at the time of the final decision. See 20 C.F.R. § 501(c)(1); J.T., 59 ECAB 293 (2008); G.G.,
58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
Appellant may submit this new evidence with a formal, written request for reconsideration to the Office. 5 U.S.C.
§ 8128; 20 C.F.R. § 10.606.

3

LEGAL PRECEDENT
Section 8128(a) of the Act3 does not entitle a claimant to a review of an Office decision
as a matter of right.4 The Office, through its regulations, has imposed limitations on the exercise
of its discretionary authority under section 8128(a). Section 10.607(a) of the Office’s
implementing regulations provide that an application for reconsideration must be sent within one
year of the date of the Office decision for which review is sought.5
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.6
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by the Office.7 The evidence must be positive, precise and explicit and
must be manifest on its face that the Office committed an error.8 Evidence that does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 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.11
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.12 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.13
3

5 U.S.C. § 8128(a).

4

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

5

20 C.F.R. § 10.607(a).

6

Id. at § 10.607(b).

7

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

8

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

9

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

10

Leona N. Travis, supra note 8.

11

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

12

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

13

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

4

ANALYSIS
The Board finds that appellant did not file a timely request for reconsideration. Its
procedures provide that the one-year time limitation period for requesting reconsideration begins
on the date of the original Office decision.14 However, a right to reconsideration within one year
also accompanies any subsequent merit decision on the issues.15
The most recent merit decision in this case was the Office’s December 23, 2008 decision
which found that appellant did not sustain a recurrence of disability commencing September 7,
2007 due to her July 27, 2005 employment injuries. As appellant’s March 12, 2010 letter
requesting reconsideration of her claim by the Office was made more than one year after the
December 23, 2008 merit decision,16 the Board finds that it was not timely filed.
The Board further finds that the evidence submitted by appellant in support of her
March 12, 2010 request for reconsideration does not raise a substantial question as to the
correctness of the Office’s denial of her recurrence of disability claim or shift the weight of the
evidence of record in her favor. The reports from Dr. Winfield dated August 19 through
December 29, 2008 found that she had sacroilitis and right hip pain. Dr. Winfield addressed
appellant’s continuing employment-related sacroiliac condition, but did not address whether she
was disabled commencing September 7, 2007 due to the accepted conditions.17 The Board finds
that his reports are insufficient to show that the Office’s December 23, 2008 denial of her
recurrence claim was erroneous. Dr. Winfield’s January 20, 2009 report found that appellant’s
left knee problems which required her to change her gait caused a recurrence of her employmentrelated right sacroilitis condition. He advised that she was no longer disabled due to the accepted
condition, which was the threshold issue of the case and had returned to full-duty work.
Dr. Winfield did not state that appellant was disabled commencing September 7, 2007 due to the
accepted condition.18 The Board finds that his report does not raise a substantial question
concerning the correctness of the Office’s decision denying appellant’s recurrence claim.
Dr. Carlson’s reports found that appellant had right hip pain and osteoarthritis, low back
pain and L4-5 and L5-S1 degenerative disc disease and spondylolisthesis. He advised that her
chronic right hip and lower back pain may have developed over a number of years as she had no
distinct work episode. Dr. Carlson further advised that appellant’s back problems may have been
related to her hip problems. He did not address whether the diagnosed right hip and lower back
conditions were causally related to the July 27, 2005 employment-related conditions or whether
appellant was totally disabled due to the accepted conditions.19 The Board finds that
14

20 C.F.R. § 10.607(a); see A.F., 59 ECAB 714 (2008).

15

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

16

Appellant had one year to request reconsideration by the Office of its December 23, 2008 decision. See Federal
(FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.6a (January 2004).
17

Evidence that is not germane to the issue on which the claim was denied is insufficient to demonstrate clear
evidence of error. F.R., Docket No. 09-575 (issued January 4, 2010).
18

Id.

19

Id.

5

Dr. Carlson’s reports are insufficient to establish clear evidence of error in the Office’s denial of
her recurrence claim.
Dr. Hecht-Leavitt’s July 23, 2009 lumbar spine MRI scan report is insufficient to show
clear evidence of error as he did not address whether the accepted work injuries caused
disability.20
Dr. Snyder’s reports advised that appellant had severe bone changes in her right hip for
which she underwent total hip replacement surgery on January 28, 2009 and remained out of
work through May 24, 2009. He did not provide an opinion concerning the causal relationship
between her disability and the July 27, 2005 employment-related conditions. Further, Dr. Snyder
did not address whether the diagnosed back condition was caused by the accepted July 27, 2005
employment injuries. Regarding, his opinion on causal relation between appellant’s hip pain and
arthritis and her employment, the Board has held that a medical opinion stating that a condition
is causally related to an employment injury because the employee was asymptomatic before the
injury but became symptomatic is insufficient, without supporting rationale, to establish causal
relationship. Dr. Snyder provided no additional medical reasoning to support his opinion on
causal relation. The Board finds that his reports are insufficient to show that the denial of
appellant’s recurrence claim was erroneous.
The reports from appellant’s physical therapists do not constitute probative medical
evidence. A physical therapist is not defined as a physician under the Act.21 The Board finds,
therefore, that these reports are insufficient to establish clear evidence of error in the Office’s
December 23, 2008 decision.
The Board finds that the evidence submitted by appellant in support of her untimely
request for reconsideration does not constitute positive, precise and explicit evidence, which
manifests on its face that the Office committed an error. Therefore, appellant failed to meet her
burden of proof to show clear evidence of error on the part of the Office.
Although appellant contended on appeal that her continuing back pain was due to an
employment-related left knee injury, the instant case involves her July 27, 2005 employmentrelated back and sacroiliac conditions. As discussed above, the medical evidence was not
sufficient to shift the weight of the evidence in her favor and raise a substantial question as to the
correctness of the Office decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

20

Id.

21

See David P. Sawchuk, 57 ECAB 316 (2006).

6

ORDER
IT IS HEREBY ORDERED THAT the April 26, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 9, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
Buffalo, NY, Employer
__________________________________________

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

Docket No. 15-466
Issued: April 20, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 24, 2014 appellant filed a timely application for review from a
September 2, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Because more than 180 days elapsed from May 27, 2014, the date of the most recent
merit decision, to the filing of this appeal, and 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
of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 21, 2013 appellant, then a 50-year-old veterans’ claims examiner, filed an
occupational disease claim alleging that she acquired tendinitis in her left arm. She stated that
she “gradually began to notice that it was becoming increasing more difficult to use my left arm
without experiencing pain; loss of range of motion and muscle strength while performing my
daily duties.” Appellant first became aware of her condition and of its relationship to her
employment on August 1, 2013.
By letter dated December 24, 2013, OWCP informed appellant that the evidence of
record was insufficient to support her claim for compensation. It noted that it had not received
any medical documentation in support of her claim. OWCP afforded appellant 30 days to submit
additional evidence.
In a report dated September 25, 2013, Dr. Nita Divan, Board-certified in family medicine,
assessed appellant with pain in her left forearm. Appellant reported to Dr. Divan that she had
been helping to take care of her ill mother, which may have exacerbated the pain.
Appellant submitted physical therapy notes dated October 3, 2013.
In a narrative statement dated November 21, 2013, appellant noted that in the course of
her federal employment, she must perform continuous repetitive actions involving her hands and
arms, including typing, manipulation of light to heavy folders, reaching, stretching, pulling,
lifting, shifting, and relocation to multiple work areas in the regional office. She noted that she
had a prior claim, and had been evaluated and treated for bilateral carpal tunnel syndrome as
related to duties of her federal employment. Appellant stated that in August 2013, she first
began noticing pain in her left arm, which she mistakenly thought was an acute event with no
probability of becoming a chronic condition. In September 2013, she noticed more chronic
symptoms including an increase of pain, loss of strength, and loss of range of motion of her left
arm. A coworker, in an attached statement, noted that appellant’s work was sedentary and that
she had no knowledge of her condition or medical documentation to support her disability.
By decision dated February 21, 2014, OWCP denied appellant’s claim for compensation.
It found that the medical evidence of record was insufficient to establish that she had been
diagnosed with a condition in connection with duties of her federal employment. OWCP noted
that the only assessment received in support of appellant’s claim was for pain, which was a
symptom and not a diagnosis.
In a report dated March 26, 2014, Dr. Michael Cicchetti, Board-certified in physical
medicine and rehabilitation, diagnosed appellant with bilateral lateral epicondylitis. He noted
that it was unknown how her injury happened. Dr. Cicchetti stated, “In my professional opinion
[appellant’s] symptoms are most likely related to her work environment. I have recommended
that she resubmit this case to the work[ers’] comp[ensation] board. [Appellant] spends the
majority of her eight-hour days on the computer typing and using a mouse. She is also
constantly lifting and moving claim folder[s] … around. [Appellant] denies any other
recreational or home risk factors for an overuse injury to the elbows.”

2

On March 29, 2014 appellant requested reconsideration of OWCP’s February 21, 2014
decision.
By decision dated May 27, 2014, OWCP reviewed the merits of appellant’s claim and
denied modification of its prior decision of February 21, 2014. It noted that Dr. Cicchetti’s
March 26, 2014 report contained speculative or equivocal language regarding the cause of
appellant’s injury and stated that it was unknown how her injury happened.
On August 8, 2014 appellant requested reconsideration of OWCP’s May 27, 2014
decision.
In a report dated July 23, 2014, Dr. Cicchetti noted that appellant had presented on that
date for ultrasound evaluations of her extensor tendons and lateral epicondyles. He diagnosed
her with right lateral epicondylosis with evidence of an enthesophyte versus calcific
tendinopathy at the most lateral tip of the epicondyle, and a focal region of tendinosis within the
deep portion of the common extensor tendon; and a left lateral epicondylar enthesophyte with a
relatively normal-appearing extensor tendon origin.
On July 30, 2014 appellant summarized the contents of her request for reconsideration
and contended that Dr. Cicchetti’s July 23, 2014 report contained a physician’s opinion with a
supported medical explanation as to how work activities in her federal employment caused or
aggravated her medical condition.
By decision dated September 2, 2014, OWCP denied appellant’s request for
reconsideration of her claim and did not review the merits of her case. It found that the report
from Dr. Cicchetti was irrelevant, as it offered no discussion of appellant’s work factors; and that
the letter of July 30, 2014 was irrelevant as it was not material to the medical issues in the case.
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 it
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 it.2 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.3
The Board has found that evidence that repeats or duplicates evidence already in the case
record has no evidentiary value.4 The Board also has held that the submission of evidence which

2

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

3

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

4

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

3

does not address the particular issue involved does not constitute a basis for reopening a case.5
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.6
ANALYSIS
OWCP issued a May 27, 2014 decision denying appellant’s claim for occupational
disease, as she did not submit medical evidence containing a rationalized physician’s opinion on
the issue of the causal relationship between work factors and her diagnosed conditions. By form
received on August 8, 2014, appellant requested reconsideration of this decision.
The Board does not have jurisdiction over the merits of the May 27, 2014 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 her claim. In her
August 8, 2014 request for reconsideration and in a follow-up letter dated July 30, 2014,
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, she is not entitled
to a review of the merits of her claim based on the first and second above-noted requirements
under section 10.606(b)(2).
The underlying issue in this case is whether appellant had established a causal
relationship between the claimant’s diagnosed conditions and compensable employment factors.7
A claimant may be entitled to a merit review by submitting new and relevant evidence, but
appellant did not submit any new and relevant evidence in this case. While the July 23, 2014
report of Dr. Cicchetti was not previously of record, it is irrelevant to the grounds upon which
OWCP denied appellant’s claim on May 27, 2014. The July 23, 2014 report did not contain a
discussion of specific work factors related to appellant’s diagnosed conditions, nor did it contain
a physician’s opinion as to the cause of these conditions. Instead, it merely contained diagnostic
notes relating to an ultrasound of appellant’s bilateral upper extremities. As such, the July 23,
2014 report of Dr. Cicchetti was not relevant to the grounds upon which appellant’s claim was
denied and was insufficient to require a merit review of her claim. Similarly, appellant’s own
statement, which was not medical evidence, was irrelevant to the grounds upon which her claim
was denied and insufficient to require a merit review.
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.
5

P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB
180, 187 (2000).
6

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

7

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005).

4

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for review of the merits
of her 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 September 2, 2014 is affirmed.
Issued: April 20, 2015
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.E., Appellant
and
DEPARTMENT OF AGRICULTURE,
SEQUOIA NATIONAL FOREST,
Portersville, CA, Employer
__________________________________________

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

Docket No. 14-1588
Issued: May 12, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 8, 2014 appellant filed a timely appeal from a February 18, 2014 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.
ISSUE
The issue is whether appellant met her burden of proof to modify OWCP’s loss of
wage-earning capacity (LWEC) determinations.
On appeal, appellant challenges the correctness of the determinations regarding her
LWEC. She contends that OWCP improperly found that the position of telemarketer fairly and
reasonably represented her wage-earning capacity. Appellant argues that there were no
telemarketing positions within a reasonable commuting distance of her home; that commuting to
1

5 U.S.C. § 8101 et seq.

places where this employment was available would exceed the restrictions set by the physicians;
that the cost of commuting to the position would exceed her income from stated position; that
she did not have the physical, mental capacity, or training to perform the constructed
telemarketer position; and that she required frequent breaks, which would make her unable to
effectively compete for the telemarketer position. She denied that her activities in her personal
life, which included raising horses and kayaking, involved extensive physical effort.
FACTUAL HISTORY
This case has previously been before the Board. A review of the facts shows that on
September 18, 1990 appellant, then a 34-year-old forestry technician, filed a traumatic injury
claim alleging that, while changing a tire on a vehicle on April 17, 1990, the weight of the tire
hurt her lower back. OWCP accepted her claim for lumbosacral strain, herniated disc L4-5, and
subsequent microsurgical discectomy. Appellant made several attempts to return to work, but
has not worked for the employing establishment since May 27, 1992.
In a March 19, 2012 work capacity evaluation, Dr. Fred G. McQueary, a Board-certified
orthopedic surgeon, stated that appellant will not be able to work because of a recurrent spasm
that occurs after she is up for an extended period of time. He then noted that her average
workday should be six hours at a maximum and may need to be limited to four hours on some
days. Dr. McQueary noted that appellant had a degenerative process and will establish a
tendency to become progressively more severe over time. He did not feel that she will improve
enough to return to a physically demanding job. Dr. McQueary limited appellant to 2 hours and
30 minutes of sitting, 1 hour of standing, and 4 hours each of walking, reaching, and operating a
motor vehicle. In a January 2, 2003 letter, he indicated that he believed that she should have the
option of having a break every hour or so. Dr. McQueary indicated that this may not always be
necessary but on the days that appellant is having more spasms, the flexibility of having such a
break will allow her to maintain her employability.
Appellant was referred to vocational rehabilitation. In a September 2, 2004 report, the
vocational rehabilitation specialist indicated that she was capable of working as a telemarketer.
The position of telemarketer was described as:
“Solicits orders for merchandise or services over telephone. Calls prospective
customers to explain type of service or merchandise offered. Quotes prices and
tries to persuade customer to buy, using prepared sales talk. Records names,
addresses, purchases, and reactions to prospects solicited. Refers orders to other
workers for filing. Keys data from order card into computer, using keyboard.
May develop lists of prospects from city and telephone directories. May type
report on sales activities. May contact driver, sales route to arrange delivery of
merchandise.”
The vocational rehabilitation specialist noted that the position was available full time and
referred OWCP to job searches conducted in 2003 for indications of area state employment
offices and direct employing establishment contact. He indicated that the job was being
performed in sufficient numbers to make it reasonably available to the claimant within
appellant’s commuting area, and indicated that this was confirmed with the state employment

2

service representative in Jefferson City, Missouri. On November 4, 2004 OWCP received a new
version of the September 2, 2004 report, wherein the vocational rehabilitation specialist indicated
that the position of telemarketer was available both full time and part time.
In a January 4, 2006 memorandum to file, a vocational rehabilitation specialist noted that
Dr. McQueary indicated that appellant can sit 2.5 hours at a time with a break every 30 to 60
minutes. He noted that appellant’s permanent work restrictions, specifically being able to sit up
to 2.5 hours at a time, change position and stand at will at a telemarketing station while talking
on headset, and the fact that she could work four hours a day allow her to work as a telemarketer
and to remain within restrictions. On January 4, 2006 OWCP received a portion of an unsigned
report indicating that positions were available as a telemarketer in Kansas City, Missouri and
Lawrence, Wichita, and Topeka, Kansas. It also received handwritten notes identifying certain
positions as a telemarketer.
In a decision dated December 14, 2004, OWCP reduced appellant’s compensation based
on her ability to earn wages as a telemarketer working 20 hours a week. It noted that the
vocational counselor stated that the position was within her commuting area. OWCP noted that
the Springfield Metropolitan Statistical area includes a five county area with a population of
385,000 people. It noted that appellant relocated to a rural area outside of Ava, Missouri with a
population of 11,000 approximately 38 miles from Ozark, Missouri, which is a city of 12,000
and included in the metropolitan area of Springfield. OWCP noted that she lives approximately
52 miles from the southeast side of Springfield, and that commuting to work in the Springfield
area would not be unreasonable.
In a December 20, 2004 work capacity evaluation, Dr. Nancy Hayes, a family
practitioner, indicated that appellant could work two hours sitting, one hour standing and four
hours each walking and reaching. She indicated that appellant could operate a motor vehicle to
and from work 30 minutes each way and required 30-minute breaks every 1 to 2 hours.
In a January 4, 2005 memorandum to file, Leslie Nelson, a vocational rehabilitation
specialist, indicated that appellant’s restrictions as set forth by Dr. McQueary on March 19, 2002
indicate that she can sit 2.5 hours at time and that she needs a break every 30 to 60 minutes. He
noted that he contacted telemarketing offices and was told that a telemarketer was provided a
handset or a regular telephone with handset that the workstation generally is a cubicle, that the
worker has the ability to stand up, sit down, change position, and move around the workstation at
will while talking on the telephone. Mr. Nelson noted that workers are provided at least one
break in the morning and an afternoon and a lunch break and that they may have more breaks
depending on the job. He indicated that appellant’s permanent work restrictions, specifically
being able to sit for 2.5 hours at a time, the ability to change position and stand at will at a
telemarketing station while talking on the headset performing the job, and the fact that she is
only released to work 4 hours a day, allow her to stay within work restrictions. Mr. Nelson listed
several places he called that had telemarketing positions available in Kansas City, Missouri and
Wichita and Topeka, Kansas.
In a letter from appellant dated March 29, 2007, she listed several telemarketer positions
within 75 miles from her home and argued the reasons that these positions were not suitable,

3

including that they would not allow her to walk around, that they required skills or experience
that she did not have or they required her to work more than 20 hours a week.
OWCP referred appellant to Dr. Todd J. Harbach, a Board-certified orthopedic surgeon,
for a second opinion. In a July 10, 2008 report, Dr. Harbach assessed her with intractable low
back pain status post an accepted on-the-job injury while working as a fire firefighter in 1990;
status post left-sided L5-S1 microlumbar discectomy that has been successful with near complete
resolution of her left lower extremity pain and some residual paresthesias in an S1 distribution
with mild scar entrapped left S1 nerve root; and multilevel lumbar degenerative disc disease. He
recommended a functional capacity evaluation. Dr. Harbach did not think that appellant was
capable of performing the jobs required of a firefighter, but opined that she was certainly able to
perform some sort of employment. He did note that she would have a hard time driving or
commuting a long distance to go to work, and opined that any distances more than 30 minutes
would give her difficulties and that she should probably not be required to travel more than that.
Dr. Harbach noted that appellant certainly could move to a different area for a different
government job if one became available and could be retained with clerical skills to accomplish
that. In his work capacity evaluation, he indicated that she was unable to perform her usual
work, but could work with restrictions of two to four hours each sitting, walking, and standing
and that she could operate a motor vehicle at work for one hour and to and from work for one
hour. Dr. Harbach noted that appellant will need breaks of 15 minutes three times in an 8-hour
shift.
In a decision dated November 15, 2007, OWCP further reduced appellant’s
compensation, as it used incorrect figures to compute her compensation. Appellant requested
reconsideration. In decisions dated November 12, 2008, September 11, 2009, and November 2,
2010, OWCP denied modification of its decisions after conducting a merit review. By decision
dated November 16, 2011, it denied appellant’s request for reconsideration as it was untimely
and failed to establish clear evidence of error.
In a January 23, 2012 report, Dr. Michael Ball, an osteopath, stated that appellant had
multilevel degenerative disc disease. He noted that she will never be able to perform the
firefighting job she had at the time of injury and that she had permanent restriction from her low
back. Dr. Ball noted that appellant required frequent breaks so that she can lie down and reduce
the load on the spine regardless of what type of activity she engages in. He further noted that she
required frequent position changes from sitting to standing and walking. In an attached work
capacity evaluation, Dr. Ball indicated that appellant could operate a motor vehicle to and from
work for 30 minutes and could operate a motor vehicle at work for 3 hours. He noted that she
could sit for three hours, walk for four hours, and stand for one hour. Dr. Ball noted that
appellant required 30-minute breaks every 30 to 60 minutes.
On April 16, 2012 appellant requested reconsideration. She argued that the commuting
time to the telemarketer jobs was too long as evinced by Dr. Ball’s January 23, 2012 report.
Appellant also argued that in 2008, Dr. Harbach stated that her commuting time should not be
over 30 minutes one way. She also argued that the pay rate was not set based on jobs in her area.
By decision dated August 3, 2012, OWCP denied reconsideration without conducting a
merit review. However, on October 21, 2013, the Board issued an order remanding this case.

4

The Board found that OWCP should have adjudicated the issue of modification of the LWEC
determination.2
By letter dated January 15, 2014, appellant again argued that OWCP’s LWEC
determination should be modified as the commute to the telemarketer positions was far too long,
her restrictions preclude her from competing in an open market, and the wages used to determine
her LWEC were incorrect.
By decision dated February 18, 2014, OWCP determined that appellant had not submitted
sufficient evidence to modify LWEC decisions of December 14, 2004 and November 15, 2007.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3 OWCP procedures at Chapter 2.1501 contain
provisions regarding the modification of a formal LWEC.4 The relevant part provides that a
formal LWEC will be modified when: (1) the original rating was in error; (2) the claimant’s
medical condition has materially changed; or (3) the claimant has been vocationally
rehabilitated.5 The burden of proof is on the party attempting to show a modification of the
wage-earning capacity determination.6
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open
labor market under normal employment conditions given the nature of the employee’s injuries
and the degree of physical impairment, his or her usual employment, the employee’s age and
vocational qualifications, and the availability of suitable employment.7 Accordingly, the
evidence must establish that the jobs in the position selected or determining wage-earning
capacity are reasonably available in the general labor market in the commuting area where the
employee lives.8

2

Docket No. 13-649 (issued October 21, 2013).

3

Katherine T. Kreeger, 55 ECAB 633 (2004).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity
Decisions, Chapter 2.1501 (June 2013).
5

Id. at § 2.1501.3(a).

6

R.E., Docket No. 14-1217 (issued October 6, 2014).

7

T.B., Docket No. 14-1529 (issued December 4, 2014).

8

J.O., Docket No. 10-785 (issued September 21, 2011).

5

ANALYSIS
OWCP accepted appellant’s claim for lumbosacral strain, herniated disc L4-5, and
subsequent microsurgical discectomy. In a decision dated December 14, 2004, it reduced her
compensation based on her ability to earn wages as a telemarketer working 20 hours a week.
This decision was modified on November 15, 2007 as OWCP found that incorrect figures were
used to compute appellant’s compensation. OWCP most recently denied her request for a
modification of LWEC in its February 18, 2014 decision.
The Board finds that the original LWEC determination was in error, as it was never
established that the position of telemarketer was available within appellant’s reasonable
commuting distance. Appellant lives outside of Ava, Missouri, a rural area. The vocational
rehabilitation counselor first noted that the telemarketer position was suitable in a September 2,
2004 report. In that report, he stated that the position was available in appellant’s commuting
area, and for support referenced job searches that he conducted in 2003. However, the
vocational counselor’s 2003 reports were prepared for the positions of cashier 2, security guard,
and recreational leader.
In its December 14, 2004 decision on LWEC, OWCP noted that appellant was
approximately 38 miles from Ozark, Missouri and was 52 miles from the southeast side of
Springfield, Missouri.
Furthermore, subsequent to OWCP’s December 14, 2004 LWEC decision, a
December 20, 2004 work capacity evaluation by Dr. Hayes indicated that appellant could operate
a motor vehicle to and from work for only 30 minutes. Thereafter, the vocational counselor
submitted a January 4, 2006 report which concluded that positions for telemarketer and sales
representatives were available in inter alia, Wichita and Topeka, Kansas, as well as Kansas City,
Missouri. All of these positions were further from appellant’s residence than Springfield,
Missouri, and all involved a commute outside of the 30 minutes time period for commuting
recommended by Dr. Hayes.
In a July 28, 2008 report, Dr. Harbach, the second opinion physician, agreed that
appellant could not commute longer than 30 minutes each way. In a January 23, 2012 report,
Dr. Paul also indicated that appellant could only operate a motor vehicle to and from work for 30
minutes. Although OWCP determined that the position of telemarketer was suitable it did not
properly discuss appellant’s ability to commute. The proposed employment, a commute which
appears to involve driving considerably further than 30 minutes each way. Therefore, OWCP
was in direct controversion of Drs. Hayes, Harbach, and Paul’s opinions relative to the ability of
appellant to go to, and return from her proposed worksite. OWCP, thus, did not meet its burden
of proof in reducing appellant’s compensation.9
CONCLUSION
The Board finds that OWCP did not meet its burden of proof when it made its LWEC
determination.
9

L.D., Docket No. 12-816 (issued April 9, 2013).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensations Programs dated February 18, 2014 is reversed.
Issued: May 12, 2015
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, HILLDALE CARRIER )
ANNEX POST OFFICE, Tampa, FL, Employer
)
__________________________________________ )
N.V., Appellant

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

Docket No. 20-0781
Issued: November 18, 2020

Case Submitted on the Record

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

JURISDICTION
On February 24, 2020 appellant timely filed an appeal from a February 12, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
lapsed since the last merit decision, dated June 15, 2018, 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 this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the February 12, 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.

FACTUAL HISTORY
On May 18, 2000 appellant, then a 48-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 17, 2000 he sustained low back pain when unloading bundles
of mail at an apartment complex’s central delivery point while in the performance of duty. OWCP
accepted the claim for lumbosacral sprain.
Dr. Robert C. Henderson, a Board-certified orthopedic surgeon, treated appellant
beginning on May 18, 2000. He maintained appellant on restricted duty through July 2001, and
returned him to full-duty work, effective August 13, 2001.3 Dr. Henderson provided periodic
reports through July 9, 2010 diagnosing a severe lumbosacral sprain, lumbar disc disease, and an
L5-S1 disc herniation.4 Appellant remained in modified-duty status.
In January 17 and 20, 2011 reports, Dr. Frederick McClimans, an osteopath and Boardcertified orthopedic surgeon, noted the May 17, 2000 employment injury. He diagnosed an L3-4
annular bulge and L5-S1 disc bulge. Dr. McClimans provided work restrictions and prescribed
physical therapy.5 He submitted periodic reports through February 21, 2011.
In a report dated January 5, 2012, Dr. Henderson recommended a stretching program. He
returned appellant to limited-duty work.
On June 1, 2017 appellant filed a notice of recurrence (Form CA-2a) alleging that he
sustained a recurrence of the need for medical treatment, commencing May 23, 2017, as a result
of his previously accepted lumbosacral strain.
In a development letter dated June 8, 2017, OWCP notified appellant of the deficiencies of
his claim and provided a questionnaire for his completion. It afforded him 30 days to respond.
In response, appellant provided a July 26, 2017 statement, noting the onset of lumbar pain
on May 1, 2017 with an increase of symptoms on May 23, 2017.6
In a July 5, 2017 statement, Postal Manager L.R. noted that appellant had complained of
low back pain while at work in May 2017.

3

An April 19, 2001 lumbar magnetic resonance imaging (MRI) scan demonstrated annular bulging at L3-4, and an
annular tear with annular bulging at L5-S1. Appellant participated in physical therapy treatments in August and
September 2001. A June 15, 2007 lumbar MRI scan demonstrated mild spondylotic changes at L3-S1 with mild
diffuse disc bulging at multiple levels. Appellant also submitted medical records regarding treatment for a right
shoulder condition accepted under OWCP File No. xxxxxx596.
4

By decision dated September 11, 2002, OWCP denied appellant’s request to change his treating physician as there
was no evidence of inappropriate or improper treatment.
5

Appellant participated in physical therapy treatments from February to May 2011.

6
May 23, 2017 lumbar x-rays demonstrated advanced degenerative changes in the lumbosacral junction, and mild
diffuse anterior spondylosis. A June 1, 2017 lumbar MRI scan demonstrated multilevel degenerative disc disease with
spinal canal narrowing and neural foraminal stenosis, most severe at L3-4 and L4-5. Appellant also provided copies
of medical reports previously of record.

2

In an August 30, 2017 report, Dr. Jennifer A. Locke, Board-certified in emergency
medicine, diagnosed right conjunctivitis and possible hypertension. She returned him to
unrestricted duty.
By decision dated November 21, 2017, OWCP denied appellant’s recurrence claim,
finding that the evidence of record was insufficient to establish causal relationship between his
“present condition” and the accepted lumbosacral strain. It explained, “you have not established
that you require additional medical treatment due to a worsening of your accepted work-related
conditions, without intervening cause.”
On November 29, 2017 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review. During the hearing held on May 14, 2018, he explained
that he claimed a recurrence to obtain continuing medical treatment. Appellant submitted June 20,
2017 and May 15, 2018 reports by Dr. McClimans diagnosing low back pain, low back strain,
lumbar intervertebral disc disorders, lumbar disc degeneration, and spinal stenosis.
By decision dated June 15, 2018, OWCP’s hearing representative affirmed the
November 21, 2017 decision, finding that the medical evidence of record was insufficient to
establish that the accepted lumbosacral strain required continuing medical care after 2013.
On January 21, 2020 appellant requested reconsideration, contending that his union
representative had not provided adequate representation before OWCP, and that continuing lumbar
symptoms interfered with his activities in retirement. He also submitted an undated report by
Dr. McClimans, who noted that, based on a June 1, 2017 lumbar MRI scan, appellant’s condition
had not changed significantly since the accepted May 17, 2000 employment injury.
Dr. McClimans opined that appellant’s “job duties including pushing, pulling, lifting, twisting,
climbing, sitting, and prolonged standing” during his 31 years of postal employment had
aggravated the accepted lumbosacral strain.
By decision dated February 12, 2020, OWCP denied appellant’s January 21, 2020 request
for reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.7 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.8 Timeliness is determined by the document receipt date (i.e.,

7

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
8

20 C.F.R. § 10.607(a).

3

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).9
Imposition of this one-year filing limitation does not constitute an abuse of discretion.10
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error.11 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of
OWCP.12 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record.13
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.14 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must not only be of sufficient probative value to create a conflict
in medical opinion or establish a clear procedural error, but must shift the weight of the evidence
in favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.12
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
The last merit decision in this case was issued on June 15, 2018 and OWCP received
appellant’s request for reconsideration on January 21, 2020. As the request for reconsideration
was not received by OWCP within the one-year time limitation, pursuant to 20 C.F.R. § 10.607(a),

9

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

10

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
11

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
12
L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 9 at Chapter 2.1602.5 (February 2016).
13

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).
14

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 9 at Chapter 2.1602.5(a) (February 2016).

4

the Board finds that the request for reconsideration was untimely filed. Consequently, appellant
must demonstrate clear evidence of error by OWCP in denying the claim.15
The Board further finds that appellant’s untimely request for reconsideration failed to
demonstrate clear evidence of error. The underlying issue is whether OWCP properly denied his
recurrence claim because the evidence did not establish that his accepted lumbosacral sprain
required continuing treatment on and after 2013. In support of his untimely request for
reconsideration, appellant provided his January 15, 2020 statement describing his continuing
symptoms and expressing dissatisfaction with his union representative. He also provided an
undated report by Dr. McClimans opining that repetitive activities during 31 years of federal
employment had aggravated the accepted lumbosacral strain. Appellant’s January 15, 2020
statement, is irrelevant to the underlying medical issue of causal relationship.16 Additionally,
Dr. McClimans’ report does not demonstrate that OWCP committed error in denying appellant’s
recurrence claim, nor does it raise a substantial question as to the correctness of OWCP’s decision.
The Board has held that the term clear evidence of error is intended to represent a difficult standard.
The claimant must present evidence that on its face shows that OWCP made an error.17 None of
the evidence appellant submitted demonstrates on its face that OWCP committed an error in
denying appellant’s recurrence claim in its June 15, 2018 decision. Appellant has not otherwise
submitted evidence of sufficient probative value to raise a substantial question as to the correctness
of OWCP’s June 15, 2018 decision. Thus, the evidence is insufficient to demonstrate clear
evidence of error.18
For these reasons, the Board finds that OWCP properly denied appellant’s request for
reconsideration as it was untimely filed and failed to demonstrated clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.

15

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

16
C.T., Docket No. 19-0058 (issued June 14, 2019); Susan M. Biles, 40 ECAB 420 (1988) (where the Board held
that the statement of a layperson is not competent evidence on the issue of causal relationship).
17

G.B., Docket No. 19-1762 (issued March 10, 2020).

18

See J.D., Docket No. 18-1765 (issued June 11, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the February 12, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6