G.S. and Department of the Air Force, Andrews Air Force Base, MD (Board decision, November 27, 2012)

ECAB final decision on reconsideration. The Board affirmed OWCP's May 9, 2012 refusal to reopen G.S.'s back injury claim because the request was late and did not show clear evidence of error. The Board's compensation decision is final under 5 U.S.C. § 8128(b), without ordinary judicial review. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

G.S., an Air Force employee, sought reconsideration of a denied lumbar strain claim. His request came more than a year after the last merits decision. The Board found that his medical submission did not clearly establish error in that decision. It affirmed OWCP's refusal.

Decision snapshot

• Authority: FECA late reconsideration and clear error.
• Outcome: May 9, 2012 refusal to reopen affirmed.
• Key point: The late submission did not establish clear error.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
G.S., Appellant
)
)
and ) Docket No. 12-1562
) Issued: November 27, 2012
DEPARTMENT OF THE AIR FORCE,
)
ANDREWS AIR FORCE BASE, MD, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

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

JURISDICTION

On July 13, 2012 appellant filed a timely appeal from a May 9, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for reconsideration on the grounds that it was untimely filed and failed to present clear evidence of error. There is no merit decision of record issued within 180 days of July 13, 2012, the date appellant filed his appeal with the Board. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of the case.

On appeal, appellant asserted that his attending physician’s opinion was sufficient to establish his claim based on the merits of the evidence.

ISSUE

The issue is whether OWCP properly denied reconsideration on the grounds that it was not timely filed and failed to present clear evidence of error.

1
5 U.S.C. § 8101 et seq.
FACTUAL HISTORY

This case has previously been before the Board. By decision and order issued March 14, 2
2012, the Board affirmed OWCP’s May 24, 2011 decision denying appellant’s December 17, 2010 request for reconsideration of a November 18, 2010 merit decision denying his lumbar strain claim. OWCP’s November 18, 2010 decision was issued on a lack of rationalized medical evidence supporting causal relationship. The Board found that appellant’s request 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. The law and the facts of the case as set forth in the Board’s prior decision and order are incorporated by reference.

In a March 28, 2012 letter, appellant requested reconsideration. He submitted additional medical evidence which he asserted was sufficient to establish that he sustained a May 12, 2010 lumbar strain. In a July 11, 2011 report, Dr. Paul L. Asdourian, an attending Board-certified orthopedic surgeon, noted treating appellant for lumbar spondylosis through June 3, 2009. He opined that the May 12, 2010 injury aggravated preexisting lumbar spondylosis. Appellant also submitted an April 4, 2012 letter from his elected representative requesting information from OWCP, and an April 18, 2012 response that appellant’s reconsideration request was currently under development.

By decision dated May 9, 2012, OWCP denied reconsideration on the grounds that appellant’s request was not timely filed within one year of the November 18, 2010 merit decision and failed to present clear evidence of error. It found that appellant’s March 28, 2012 letter, letters to and from his elected representative and the July 11, 2011 medical report were insufficient to raise a substantial question regarding the correctness of OWCP’s November 18, 2010 decision.

LEGAL PRECEDENT

Section 8128(a) of FECA3 does not entitle a claimant to a review of an OWCP decision as a matter of right.4 This section vests OWCP with discretionary authority to determine whether it will review an award for or against compensation.5 OWCP, through regulations, has imposed limitations on the exercise of its discretionary authority. One such limitation is that OWCP will not review a decision denying or terminating a benefit unless the application for review is filed within one year of the date of that decision.6 The Board has found that the imposition of this

2
Docket No. 11-1744 (issued March 14, 2012).
3
5 U.S.C. § 8128(a).
4
Thankamma Mathews, 44 ECAB 765, 768 (1993).
5
Id.; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).
6
20 C.F.R. §§ 10.607, 10.608(b). The Board has concurred in OWCP’s limitation of its discretionary authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

2 one-year time limitation does not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).7

In those cases where requests for reconsideration are not timely filed, OWCP must nevertheless undertake a limited review of the case to determine whether there is clear evidence of error pursuant to the untimely request in accordance with section 10.607(b) of its regulations.8 Its regulations state that OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in OWCP’s regulations, if the claimant’s request for reconsideration shows “clear evidence of error” on the part of OWCP.9

To establish clear evidence of error, a claimant must submit evidence relevant to the issue which was decided by OWCP.10 The evidence must be positive, precise and explicit and must be manifest on its face that OWCP committed an error.11 Evidence which does not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to establish clear evidence of error.12 It is not enough merely to show that the evidence could be construed so as to produce a contrary conclusion.13 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 by OWCP.14 The Board must make an independent determination of whether a claimant has submitted clear evidence of error on the part of OWCP such that OWCP abused its discretion in denying merit review in the face of such evidence.15

ANALYSIS

In its May 9, 2012 decision, OWCP properly determined that appellant failed to file a timely application for review. It issued its most recent merit decision on November 18, 2010. Appellant’s request for reconsideration was dated March 28, 2012, more than one year after November 18, 2010. Accordingly, his request for reconsideration was not timely filed.

In the March 28, 2012 letter, appellant contended that a July 11, 2011 report from Dr. Asdourian, an attending Board-certified orthopedic surgeon, was sufficient to establish the claimed May 12, 2010 lumbar strain. The Board finds that appellant’s March 28, 2012 letter

7
5 U.S.C. § 10.607(b); Thankamma Mathews, supra note 4; Jesus D. Sanchez, supra note 5.
8
Thankamma Mathews, supra note 4.
9
20 C.F.R. § 10.607(b).
10
Thankamma Mathews, supra note 4.
11
Leona N. Travis, 43 ECAB 227 (1991).
12
Jesus D. Sanchez, supra note 5.
13
Leona N. Travis, supra note 11.
14
Nelson T. Thompson, 43 ECAB 919, 922 (1992).
15
Gregory Griffin, supra note 6.

3 does not raise a substantial question as to whether OWCP’s November 18, 2010 decision was in error or shift the weight of the evidence in his favor. It is insufficient to establish clear evidence of error. The lack of medical rationale was a critical issue at the time of the November 18, 2010 merit decision denying appellant’s claim. As Dr. Asdourian’s July 11, 2011 report does not contain medical rationale addressing how and why work factors would cause the claimed lumbar strain, it does not establish clear evidence of error.16 Furthermore, the term clear evidence of error is intended to represent a difficult standard. The claimant must present evidence which on its face shows that OWCP made an error. 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.17 The correspondence to and from appellant’s elected representative does not shift the weight of the evidence in this matter.

Appellant has not otherwise provided any argument or evidence of sufficient probative value to shift the weight of the evidence in his favor and raise a substantial question as to the correctness of OWCP’s November 18, 2010 decision. Consequently, OWCP properly denied appellant’s reconsideration request as his request does not establish clear evidence of error.

On appeal, appellant asserts that Dr. Asdourian’s opinion was sufficient to establish his claim based on the “actual merits of the evidence.” However, as stated above, Dr. Asdourian’s opinion is insufficient to demonstrate clear evidence of error.

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration.

16
Leona N. Travis, supra note 13.
17
M.L., Docket No. 09-956 (issued April 15, 2010).

4
ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated May 9, 2012 is affirmed.

Issued: November 27, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5