S.C. and Department of Justice, Federal Bureau of Investigation, Medford, OR (Board decision, April 26, 2011)

ECAB final decision. The Board affirmed OWCP’s October 29, 2009 refusal to reconsider an older termination decision. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

S.C. sought reconsideration of a 2007 termination of compensation for refusing suitable work. The Board found her 2009 request untimely and reviewed it only for clear evidence of error. She submitted an Equal Employment Opportunity Commission decision finding discrimination by her employer, but that tribunal had not decided whether OWCP correctly applied the workers’ compensation suitable-work rule. The Board found the submission did not show clear error and upheld the refusal to reconsider.

Decision snapshot

• Authority: Federal Employees’ Compensation Act; 20 C.F.R. § 10.607(b).
• Outcome: October 29, 2009 decision affirmed; untimely reconsideration request did not show clear error.
• Key point: An employment discrimination ruling did not establish that the FECA suitable-work determination was wrong.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.C., Appellant
)
)
and ) Docket No. 10-1364
) Issued: April 26, 2011
DEPARTMENT OF JUSTICE, FEDERAL
)
BUREAU OF INVESTIGATION, Medford, OR,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Kevin E. Byrnes, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On April 20, 2010 appellant, through her representative, filed a timely appeal from an October 29, 2009 decision of the Office of Workers’ Compensation Programs that denied her request for reconsideration as untimely filed and not establishing clear evidence of error. Because more than one year elapsed between the issuance of the last merit decision on January 22, 2007 to the filing of this appeal on April 20, 2010, the Board lacks jurisdiction to review the merits of the case pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3.2

1
5 U.S.C. § 8101 et seq.
2
For final adverse Office decisions issued prior to November 19, 2008, a claimant had up to one year to file a Board appeal. See 20 C.F.R. § 501.3(d)(2). For final adverse Office decisions issued on and after November 19, 2008, a claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e). ISSUE

The issue is whether the Office properly denied appellant’s request for reconsideration on the grounds that it was not timely filed and did not demonstrate clear evidence of error.

On appeal, appellant, through her attorney, argues that the Office erroneously terminated her compensation and schedule award benefits due to her failure to accept a job that was not suitable. She filed a claim before the Equal Employment Opportunity Commission (EEOC) and a decision was issued that determined her employer offered appellant an unreasonable position solely to deny her benefits because of her disabled status. Appellant was stopped from seeking review before the Office as there were jurisdictional issues that needed to be pursued in another forum (i.e., before the EEOC).

FACTUAL HISTORY

On February 25, 2004 appellant, then a 47-year-old special agent, filed a claim for an occupational disease claim alleging that, as a result of typing documents for her cases for 20 years, she sustained medial epicondylitis and carpal tunnel in her right arm. The Office accepted her claim for right medial and lateral epicondylitis, right ulnar neuropathy and right carpal tunnel syndrome. On October 20, 2004 appellant underwent a right ulnar nerve decompression and transposition, right carpal tunnel release. On August 30, 2005 she underwent a left open carpal tunnel release, a left cubital tunnel release with ulnar nerve transposition and a left radial tunnel decompression. The Office paid wage-loss compensation and medical benefits.

In a May 9, 2006 medical report, Dr. Heidi T. Bloom, a treating Board-certified orthopedic surgeon, diagnosed bilateral lateral epicondylitis; status post ulnar nerve transpositions; status post carpal tunnel releases; and status post decompression of bilateral radial nerves. She found appellant medically stationary and listed permanent duty modifications of occasional lifting up to 15 pounds, frequent lifting of 5 pounds, no repetitive keyboarding and no crawling or climbing. Dr. Bloom indicated that this would presumably make appellant no longer eligible to work full time as a Federal Bureau Investigation agent. On November 2, 2006 appellant elected to retire effective November 22, 2006.

On November 7, 2006 the employing establishment offered appellant a position as an operations security assistant. This position was located in the Portland office and was available on November 20, 2006. The employing establishment noted that it would bear all relocation expenses. The position was modified to require no recurring lifting greater than 15 pounds, no carrying of moderate to heavy items greater than 15 pounds and no typing of any kind. The employing establishment noted that typing duties would be alleviated by the use of voice activated software.

On December 1, 2006 the Office informed appellant that the position of operations security assistant was available with the employing establishment. It reviewed the requirements of the position and determined that it was suitable and within her medical limitations as set by Dr. Bloom in a May 9, 2006 report. The Office gave appellant 30 days within which to accept the position or provide a written explanation of reasons for refusal.

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 In a letter received by the Office on December 12, 2006, appellant declined the position. Appellant stated that she resided in Medford, Oregon and the position was 275 miles away in Portland. She and her husband did not want to move there family. She noted that she elected to retire and would not report for the offered position.

By letter dated January 4, 2007, the Office notified appellant that it did not find her reasons for rejecting the position to be valid. It provided her 15 more days to accept the position or her wage-loss compensation would be terminated. On January 16, 2007 appellant filed a claim for a schedule award.

By decision dated January 22, 2007, the Office terminated appellant’s monetary compensation benefits effective January 22, 2007 finding she refused to accept suitable work.

By letter dated July 22, 2009, appellant resubmitted her claim for benefits. She submitted documents concerning her claim before the EEOC, including a copy of the hearing transcript and a copy of a June 11, 2009 decision issued in her favor. Appellant contended that she had challenged the reasonableness of the job offer and that the EEOC agreed with her position. She requested that the Office authorize her to elect benefits under the Act. In the alternative, appellant asked that the Office to reconsider her claim and find that the matter was stayed pending EEOC action. She forwarded a copy of the June 11, 2009 decision which found that she had established by a preponderance of the evidence that the Office intentionally discriminated against her due to her disability when it intentionally acted to prevent her from obtaining a schedule award. Appellant was entitled to reasonable attorney’s fees and to an award of nonpecuniary damages based on emotional harm.3

By letter dated September 12, 2009, appellant requested reconsideration of the Office’s prior decision in light of the recent EEOC decision. She made various arguments concerning the suitability of the offered position including the fact that the position did not accommodate her restrictions against typing.

By decision dated October 29, 2009, the Office denied appellant’s claim for reconsideration as it was untimely filed and failed to establish 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 her application for review within one year of the date of that decision.4 The

3
In discussing her claim, the EEOC noted testimony that the position required typing even though appellant was physically incapable of performing that function, that officials in Portland did not believe that the job offer was serious, that her husband was a special agent for the employing establishment in Medford and that no transfer was offered to him and that the position would required her to move there family including three school-aged children 275 miles. 4 20 C.F.R. § 10.607(a).

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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 Act.5

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, the Office must nevertheless undertake a limited review to determine whether the application establishes clear evidence of error.6 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.7

To establish clear evidence of error, a claimant must submit evidence relevant to the issue which was decided by the Office.8 The evidence must be positive, precise and explicit and must manifest on its face that the Office committed an error.9 Evidence which does not raise a substantial question concerning the correctness of the Office’s decision is insufficient to establish clear evidence of error.10 It is not enough merely to show that the evidence could be construed so as to produce a contrary conclusion.11 This entails a limited review by 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.12 To show clear evidence of error, the evidence submitted must not only be of sufficient probative value to create a conflict in medical opinion or establish a clear procedural error, but must be of sufficient probative value to prima facie shift the weight of the evidence in favor of the claimant and raise a substantial question as to the correctness of the Office decision.13

ANALYSIS

The Board finds that as more than one year had elapsed from the date of issuance of the last merit decision in this case, i.e., the January 22, 2007 decision terminating appellant’s 5 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).
6
See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).
7
Id; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(d) (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 2.1602.3(c). 8 See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).
9
See Leona N. Travis, 43 ECAB 227, 240 (1991).
10
See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).
11
See Leona D. Travis, supra note 9.
12
See Nelson T. Thompson, 43 ECAB 919, 922 (1992).
13
Leon D. Faidley, Jr., supra note 5.

4 monetary benefits, her request for reconsideration on September 12, 2009 was not timely filed. Appellant contended that she was stopped from seeking review before the Office because there were jurisdictional issues that had to be resolved in another forum, i.e., the EEOC. The Board notes the Office has the responsibility for administering the Act, not the EEOC.14 The Office has exclusive jurisdiction in the cases before it to decide all questions arising under the Act, subject to the review and final decision by the Board.15 Consequently, appellant must demonstrate clear evidence of error by the Office in terminating her compensation for refusing an offer of suitable work.16

Appellant submitted additional factual evidence in support of her request for reconsideration regarding her discrimination complaint filed with the EEOC, including a June 11, 2009 EEOC decision. It found that the employing establishment had discriminated against her; but the EEOC decision does not raise a substantial question as to the correctness of the Office’s decision under the Act. The administration judge found that the employing establishment had discriminated against appellant. In making this finding, he clearly noted that he had no jurisdiction to review the Office’s determination that appellant improperly refused an offer of suitable work. The administration judge noted that termination of benefits under the Act was the exclusive province of the Department of Labor.17 He noted that, for similar reasons, he had no jurisdiction to enter a schedule award. The administration judge noted that the standards for determining suitable work under the Act differed from the standard for adjudicating appellant’s rights under other federal statutes outside workers’ compensation. Accordingly, the Board finds that this decision does not establish clear error on the part of the Office.

To establish clear evidence of error, appellant must submit evidence or argument that is positive, precise and explicit and must manifest on its face that the Office committed an error.18 The term clear evidence of error is intended to represent a difficult standard.19 Appellant’s request would have to establish on its face that the Office’s termination of benefits was erroneous, thereby shifting the weight of the evidence in her favor. For the reasons noted, the evidence submitted by her does not establish clear error by the Office in terminating benefits under section 8106(c)(2). The Board finds that appellant has not established clear evidence of error in the Office’s January 22, 2007 decision.

14
20 C.F.R. § 10.1.
15
Id. at § 8128(b) (The actions of the Secretary of Labor or his designee in allowing or denying a payment under the Act is not subject to review by another official of the United States or my a court by mandamus otherwise); See Anneliese Ross, 42 ECAB 371 (1991). 16 20 C.F.R. § 10.607(b).
17
The administrative judge commented that the Office’s regulations rejected appellant’s preference for the area in which she resided or retirement as acceptable reasons for rejecting an offered job. 18 B.W.¸ Docket No. 10-323 (issued September 2, 2010).
19
D.L., Docket No. 08-1057 (issued June 23, 2009).

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 CONCLUSION

The Board finds that the Office properly denied appellant’s request for reconsideration on the grounds that it was not timely filed and did not demonstrate clear evidence of error.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated October 29, 2009 is affirmed.

Issued: April 26, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees' Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

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