R.R. and Department of the Interior, National Park Service, Van Buren, MO (Board decision, February 27, 2015)

ECAB final decision on reconsideration. The Board affirmed OWCP’s August 14, 2014 refusal to reopen R.R.’s carpal tunnel claim because his request was late and did not show clear evidence of error. The Board did not revisit the merits of OWCP’s July 24, 2012 claim denial, which remains in effect. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

R.R. asked for reconsideration nearly two years after OWCP denied his claim. New reports diagnosed carpal tunnel syndrome and one linked it generally to years of keyboard use. The Board found neither report explained medically how his work caused or aggravated the condition, so the evidence did not establish clear error in the earlier denial.

Decision snapshot

• Authority: FECA reconsideration timing and clear-evidence-of-error rule in 20 C.F.R. § 10.607.
• Outcome: Nonmerit refusal to reopen affirmed.
• Key point: The new reports did not meet the high standard for review of a late reconsideration request.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.R., Appellant
)
)
and ) Docket No. 15-9
) Issued: February 27, 2015
DEPARTMENT OF THE INTERIOR,
)
NATIONAL PARK SERVICE, Van Buren, MO,
)
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
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On October 1, 2014 appellant filed a timely appeal from an August 14, 2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180 days has elapsed since the most recent merit decision dated July 24, 2012 and the filing of this appeal on October 1, 2014, the Board lacks jurisdiction to review the merits of appellant’s case but has jurisdiction over the nonmerits pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the issuance of the August 14, 2014 OWCP decision, appellant submitted new evidence. However, the Board is precluded from reviewing evidence which was not before OWCP at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1). ISSUE

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

On appeal, appellant argues the merits of his claim.

FACTUAL HISTORY

On April 17, 2012 appellant, then a 49-year-old park manager, filed an occupational disease claim (Form CA-2) alleging that he developed carpal tunnel syndrome due to factors of his federal employment, including keyboarding.

By decision dated July 24, 2012, OWCP denied the claim on the basis that the evidence submitted was not sufficient to establish a causal relationship between appellant’s condition and factors of his federal employment.

On July 9, 2014 appellant requested reconsideration and submitted diagnostic testing dated February 23, 2012 that was negative for rheumatoid arthritis.

In a May 3, 2012 report, Dr. Richard Gelberman, a Board-certified orthopedic hand surgeon, diagnosed bilateral carpal tunnel syndrome, left trigger thumb, and left little trigger finger. He indicated that appellant’s symptoms had been present for two years and were more severe over the past six to eight months.

On March 20, 2014 Dr. Michael Moore, an emergency medicine specialist, diagnosed carpal tunnel syndrome, hyperlipidemia, and nonalcoholic fatty liver disease. He indicated that appellant had worked for the employing establishment for the past 25 years and repetitively used a keyboard for work. Dr. Moore opined that appellant’s federal employment was “a significant contributing factor in the development of his carpal tunnel syndrome.”

By decision dated August 14, 2014, OWCP denied appellant’s request for reconsideration on the grounds that it was untimely filed and failed to present clear evidence of error. It noted that it had reviewed the evidence submitted to determine whether its July 24, 2012 decision was incorrect.

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a matter of right.3 OWCP, through its regulations, has imposed limitations on the exercise of its discretionary authority under section 8128(a).4 One such limitation provides that an application for reconsideration must be submitted within one year of the date of OWCP’s decision for which

3
See Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).
4
See Annette Louise, 54 ECAB 783, 789-90 (2003).

2 review is sought.5 The Board has found that the imposition of this one-year time limitation does not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).6

Section 10.607(b) states that OWCP will consider an untimely application for reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit decision. The reconsideration request must establish that OWCP’s decision was, on its face, erroneous.7

To establish clear evidence of error, a claimant must submit evidence relevant to the issue, which was decided by OWCP.8 The evidence must be positive, precise and explicit and must manifest on its face that OWCP committed an error.9 Evidence that does not raise a substantial question concerning the correctness of OWCP’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 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.12

To establish clear evidence of error, the evidence submitted must not only be of sufficient probative value to create a conflict in medical opinion or establish a clear procedural error, but must be of sufficient probative value to prima facie shift the weight of the evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.13 The Board makes an independent determination of whether a claimant has submitted clear evidence of error on the part of OWCP such that OWCP abused its discretion in denying merit review in the face of such evidence.14

5
20 C.F.R. § 10.607(a).
6
See Jesus D. Sanchez, supra note 3; F.R., Docket No. 09-575 (issued January 4, 2010).
7
20 C.F.R. § 10.607(b).
8
See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).
9
See Fidel E. Perez, 48 ECAB 663, 665 (1997); M.L., Docket No. 09-956 (issued April 15, 2010).
10
See Richard L. Rhodes, 50 ECAB 259, 264 (1999).
11
See Leona N. Travis, 43 ECAB 227, 241 (1991).
12
See Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992).
13
See Veletta C. Coleman, 48 ECAB 367, 370 (1997).
14
See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

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 ANALYSIS

The Board finds that OWCP properly determined that appellant failed to file a timely request for reconsideration. OWCP’s regulations15 and procedures16 establish a one-year time limit for requesting reconsideration, which begins on the date of the original OWCP decision. The most recent merit decision was OWCP’s July 24, 2012 decision. Appellant had one year from the date of this decision to make a timely request for reconsideration. Since he did not file his request until July 9, 2014, it was filed outside the one-year time period. As appellant’s July 9, 2014 request for reconsideration was submitted more than one year after the July 24, 2012 merit decision, it was untimely filed. Consequently, he must demonstrate clear evidence of error by OWCP in the denial of his claim.17

OWCP denied appellant’s occupational disease claim because there was insufficient medical evidence to establish a causal relationship between his carpal tunnel syndrome and factors of his federal employment, including keyboarding. On March 20, 2014 Dr. Moore diagnosed carpal tunnel syndrome and indicated that appellant had worked for the employing establishment for the past 25 years and repetitively used a keyboard for work. He opined that appellant’s federal employment was “a significant contributing factor in the development of his carpal tunnel syndrome.” Dr. Moore failed to provide a rationalized medical explanation as to how factors of appellant’s federal employment, such as keyboarding, caused appellant to develop carpal tunnel syndrome. His conclusions are of a speculative and equivocal nature.18 Dr. Moore’s report does not establish clear evidence of error as it does not show that OWCP committed an error in denying the claim, nor does it raise a substantial question as to the correctness of OWCP’s decision.

In a May 3, 2012 report, Dr. Gelberman diagnosed bilateral carpal tunnel syndrome, left trigger thumb, and left little trigger finger. He indicated that appellant’s symptoms had been present for two years and were more severe over the past six to eight months. Dr. Gelberman also failed to provide a rationalized medical explanation as to how factors of appellant’s federal employment, such as keyboarding, caused or aggravated his conditions. His report does not establish clear evidence of error as it does not show that OWCP committed an error in denying appellant’s claim, nor does it raise a substantial question as to the correctness of OWCP’s decision.

The testing dated February 23, 2012 is diagnostic in nature and therefore does not address causal relationship. As such, the Board finds that it is insufficient to establish clear evidence of error.

15
20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).
16
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (January 2004); see Veletta C. Coleman, supra note 13.
17
20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).
18
See Michael R. Shaffer, 55 ECAB 339 (2004). To be of probative value, a physician’s opinion on causal relationship should be one of reasonable medical certainty. See Beverly R. Jones, 55 ECAB 411 (2004).

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 To establish clear evidence of error, it is not sufficient merely to show that the evidence could be construed so as to produce a contrary conclusion. The term clear evidence of error is intended to represent a difficult standard.19 None of the evidence submitted manifests on its face that OWCP committed an error in denying appellant’s claim. Appellant has not otherwise submitted evidence of sufficient probative value to raise a substantial question as to the correctness of OWCP’s decision. Thus, the evidence is insufficient to establish clear evidence of error.

On appeal, appellant argues the merits of his claim. The Board noted above that it only has jurisdiction over OWCP’s August 14, 2014 nonmerit decision which denied his request for reconsideration and therefore is precluded from conducting a merit review.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the August 14, 2014 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 27, 2015
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

19
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011); see Dean D. Beets, supra note 8.

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