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U. S. DEPARTMENT OF LABOR

 

Employees’ Compensation Appeals Board

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In the Matter of DOROTHY L. McLAURIN and VETERANS ADMINISTRATION,

VETERANS ADMINISTRATION MEDICAL CENTER, Alexandria, LA

 

Docket No. 98-1588; Submitted on the Record;

Issued March 6, 2000

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DECISION and ORDER

 

Before   MICHAEL J. WALSH, GEORGE E. RIVERS,

A. PETER KANJORSKI

 

 

            The issue is whether the Office of Workers’ Compensation Programs abused its discretion by refusing to reopen appellant’s case for merit review under 5 U.S.C. § 8128(a) on the grounds that her application for review was not timely filed and failed to present clear evidence of error.

            The Board finds that the Office did not abuse its discretion by refusing to reopen appellant’s case for merit review under 5 U.S.C. § 8128(a) on the grounds that her application for review was not timely filed and failed to present clear evidence of error.

            The only decision before the Board on this appeal is the Office’s April 6, 1998 decision denying appellant’s request for a review on the merits of its January 12, 1993 decision on the grounds that her application for review was not timely filed and failed to present clear evidence of error.[1]  Because more than one year has elapsed between the issuance of the Office’s January 12, 1993 decision and May 4, 1998, the date appellant filed her appeal with the Board, the Board lacks jurisdiction to review the January 12, 1993 decision.[2]

            To require the Office to reopen a case for merit review under section 8128(a) of the Federal Employees’ Compensation Act,[3] the Office’s regulations provide that a claimant must:  (1) show that the Office erroneously applied or interpreted a point of law; (2) advance a point of law or a fact not previously considered by the Office; or (3) submit relevant and pertinent evidence not previously considered by the Office.[4]  To be entitled to a merit review of an Office decision denying or terminating a benefit, a claimant also must file her application for review within one year of the date of that decision.[5]  When a claimant fails to meet one of the above standards, it is a matter of discretion on the part of the Office whether to reopen a case for further consideration under section 8128(a) of the Act.[6]  The Board has found that the imposition of the one-year limitation does not constitute an abuse of the discretionary authority granted the Office under section 8128(a) of the Act.[7]

            In its April 6, 1998 decision, the Office properly determined that appellant failed to file a timely application for review.  The Office rendered its last merit decision on January 12, 1993 and appellant’s request for reconsideration was dated March 16, 1998, more than one year after January 12, 1993.

            The Office, however, may not deny an application for review solely on the ground that the application was not timely filed.  For a proper exercise of the discretionary authority granted under section 8128(a) of the Act, 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.”[8]  Office procedures 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. § 10.138(b)(2), if the claimant’s application for review shows “clear evidence of error” on the part of the Office.[9]

            To establish clear evidence of error, a claimant must submit evidence relevant to the issue which was decided by the Office.[10]  The evidence must be positive, precise and explicit and must manifest on its face that the Office committed an error.[11]  Evidence which does not raise a substantial question concerning the correctness of the Office’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 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.[14]  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.[15]  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.[16]

            In accordance with its internal guidelines and with Board precedent, the Office properly proceeded to perform a limited review to determine whether appellant’s application for review showed clear evidence of error, which would warrant reopening appellant’s case for merit review under section 8128(a) of the Act, notwithstanding the untimeliness of her application.  The Office stated that it had reviewed the evidence submitted by appellant in support of her application for review, but found that it did not clearly show that the Office’s prior decision was in error.

            To determine whether the Office abused its discretion in denying appellant’s untimely application for review, the Board must consider whether the evidence submitted by appellant in support of her application for review was sufficient to show clear evidence of error.  The Board finds that the evidence does not raise a substantial question as to the correctness of the Office’s decision and is insufficient to demonstrate clear evidence of error.  In support of her untimely reconsideration request, appellant submitted numerous documents concerning the treatment of her neck and right upper extremity problems.  These documents, dated between 1989 and 1993, include medical reports detailing her November 1992 cervical surgery and the results of various diagnostic tests.  Appellant also submitted copies of medical bills and factual statements regarding the accepted May 23, 1988 employment incident.  These documents, however, are of limited probative value on the relevant issue of the present case in that they do not contain an opinion that appellant’s claimed condition is due to the May 23, 1988 employment incident.[17]  Therefore, they do not clearly show that the Office committed error when it determined that appellant had not submitted sufficient medical evidence to establish that she sustained an employment injury on May 23, 1988.

            For these reasons, the Office did not abuse its discretion by refusing to reopen appellant’s case for merit review under 5 U.S.C. § 8128(a) on the grounds that her application for review was not timely filed and failed to present clear evidence of error.

            The decision of the Office of Workers’ Compensation Programs dated April 6, 1998 is affirmed.

Dated,  Washington, D.C.

            March 6, 2000

 

 

 

 

                                                                                                            Michael J. Walsh

                                                                                                            Chairman

 

 

 

 

                                                                                                            George E. Rivers

                                                                                                            Member

 

 

 

 

                                                                                                            A. Peter Kanjorski

                                                                                                            Alternate Member