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U. S. DEPARTMENT OF LABOR

 

Employees’ Compensation Appeals Board

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In the Matter of TERRI L. NICHOLS and U.S. POSTAL SERVICE,

POST OFFICE, Mount Airy, NC

 

Docket No. 00-99; Submitted on the Record;

Issued September 26, 2000

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DECISION and ORDER

 

Before   DAVID S. GERSON, WILLIE T.C. THOMAS,

A. PETER KANJORSKI

 

 

            The issue is whether the Office of Workers’ Compensation Programs properly denied appellant’s request for reconsideration under 5 U.S.C. § 8128(a) on the grounds that the request was not timely filed and failed to present clear evidence of error.

            On August 21, 1997 appellant, then a 41-year-old letter carrier, filed a notice of occupational disease and claim for compensation (Form CA-2) alleging that she sustained a back injury in the performance of duty.  She described the nature of her condition as a disc herniation with calcification and further noted that she had undergone a laminectomy and discectomy at   L5-S1.  Appellant identified July 10, 1995 as the date she first became aware of her illness and she identified September 21, 1995, as the date she realized her claimed condition was employment related.[1]

            After further development of the record, the Office denied appellant’s claim in a decision dated December 15, 1997.  The Office found that appellant failed to establish that she sustained a herniated disc in July 1995 as a result of her work activities.

            On April 30, 1999 appellant requested reconsideration.  By decision dated May 10, 1999, the Office denied appellant’s request for reconsideration pursuant to 5 U.S.C. § 8128(a) on the grounds that the request was not timely filed and failed to present clear evidence of error.

            The Board finds that the Office properly denied appellant’s April 30, 1999 request for reconsideration.

            Section 8128(a) of the Federal Employees’ Compensation Act[2] does not entitle a claimant to a review of an Office decision as a matter of right.[3]  This section vests the Office with discretionary authority to determine whether it will review an award for or against payment of compensation.[4]  The Office, through regulations, has imposed limitations on the exercise of its discretionary authority under section 8128(a).[5]  One such limitation is that the application for reconsideration must be sent within one year of the date of the Office decision for which review is sought.[6]  Appellant failed to meet this particular requirement in that the Office’s most recent merit decision was issued on December 15, 1997 and appellant filed her request for reconsideration more than a year later on April 30, 1999.

            In those instances when a request for reconsideration is not timely filed, the Office will undertake a limited review to determine whether the application presents “clear evidence of error” on the part of the Office.[7]  In this regard, the Office will limit its focus to a review of how the newly submitted evidence bears on the prior evidence of record.[8]

            To establish clear evidence of error, a claimant must submit evidence relevant to the issue that was decided by the Office.[9]  The evidence must be positive, precise and explicit, and it must be apparent on its face that the Office committed an error.[10]  Evidence that does not raise a substantial question concerning the correctness of the Office’s decision is insufficient to establish clear evidence of error.[11]  It is not enough merely to show that the evidence could be construed so as to produce a contrary conclusion.[12]  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]

            In the instant case, appellant failed to demonstrate clear evidence of error.  Although appellant indicated in her April 30, 1999 request for reconsideration that she previously submitted additional medical evidence on December 4, 1998, the Office correctly advised appellant that the record did not reflect receipt of such evidence.  Consequently, the Office properly declined to reopen appellant’s case for merit review under section 8128(a) of the Act.[14]

            The May 10, 1999 decision of the Office of Workers’ Compensation Programs is hereby affirmed.

Dated,  Washington, DC

            September 26, 2000

 

 

 

 

                                                                                                            David S. Gerson

                                                                                                            Member

 

 

 

 

                                                                                                            Willie T.C. Thomas

                                                                                                            Member

 

 

 

 

                                                                                                            A. Peter Kanjorski

                                                                                                            Alternate Member