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U. S. DEPARTMENT OF LABOR

 

Employees’ Compensation Appeals Board

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In the Matter of JAGDIP K. BHATIA and U.S. POSTAL SERVICE,

POST OFFICE, Salt Lake City, UT

 

Docket No. 01-1612; Oral Argument Held September 5, 2002;

Issued November 26, 2002

 

Appearances:  David J. Holdsworth, Esq., for appellant; Jim C. Gordon, Jr., Esq.,

for the Director, Office of Workers’ Compensation Programs.

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DECISION and ORDER

 

Before   MICHAEL J. WALSH, WILLIE T.C. THOMAS,

MICHAEL E. GROOM

 

 

            The issue is whether the Office of Workers’ Compensation Programs properly determined that appellant’s request for reconsideration was untimely filed and did not demonstrate clear evidence of error.

            Appellant, a 40-year-old letter carrier, injured her left hip and left leg on November 5, 1991 when she slipped and fell.  The Office accepted the claim for stress fracture of the left femur.

            On January 26, 1993 appellant filed a Form CA-2a claim for recurrence of disability, alleging that she sustained a recurrence of disability on September 10, 1992 which was causally related to her November 1991 employment injury.

            By decisions dated July 22, 1993 and August 18, 1994, the Office denied appellant compensation for a recurrence of her accepted left femur condition.

            By letter dated July 27, 1995, appellant’s attorney requested reconsideration.

            By decision dated August 24, 1995, the Office denied reconsideration.

            By letter dated February 20, 2001, appellant’s attorney requested reconsideration.  Appellant did not submit any additional medical evidence with her request.

            By decision dated March 13, 2001, the Office denied reconsideration, finding that appellant had not timely requested reconsideration and had failed to submit factual or medical evidence sufficient to establish clear evidence of error.  The Office noted that appellant was required to present evidence which showed that the Office made an error, and that there was no evidence submitted that showed that its final merit decision was in error.  The Office therefore denied appellant’s request for reconsideration because it was not received within the one-year time limit pursuant to 20 C.F.R. § 10.607(b).

            The Board finds that the Office properly determined that appellant’s request for reconsideration was untimely filed and did not demonstrate clear evidence of error.
Section 8128(a) of the Federal Employees’ Compensation Act[1] does not entitle an employee to a review of an Office decision as a matter of right.[2]  This section, vesting the Office with discretionary authority to determine whether it will review an award for or against compensation, provides:

“The Secretary of Labor may review an award for or against payment of compensation at any time on his own motion or on application.  The Secretary, in accordance with the facts found on review may --

 

(1) end, or increase the compensation awarded; or

(2) award compensation previously refused or discontinued.”

 

            The Office, through its regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a).[3]  As one such limitation, the Office has stated that it 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.[4]  The Board has found that the imposition of this one-year time limitation does not constitute an abuse of the discretionary authority granted by the Office granted under 5 U.S.C. § 8128(a).[5]

            The Office properly determined that appellant failed to file a timely application for review.  The Office issued its last merit decision in this case on August 24, 1995.  Appellant requested reconsideration on February 20, 2001.  Therefore, appellant’s reconsideration request is untimely as it was outside the one-year time limit.

            In those cases where a request for reconsideration is not timely filed, the Board had held however that the Office must nevertheless undertake a limited review of the case to determine whether there is clear evidence of error pursuant to the untimely request.[6]  Office procedures state that the Office will reopen an appellant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(b), if appellant’s application for review shows “clear evidence of error” on the part of the Office.[7]

            To establish clear evidence of error, an appellant must submit evidence relevant to the issue which was decided by the Office.[8]  The evidence must be positive, precise and explicit and must be 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’s decision.[13]  The Board makes an independent determination of whether an appellant 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.[14]

            The Board finds that appellant’s February 20, 2001 request for reconsideration failed to show clear evidence of error.  Appellant did not submit any medical opinion evidence with her request.  In addition, appellant did not present any evidence of error in her request letter.  Consequently, appellant has not met her burden to establish clear evidence of error on the part of the Office such that the Office abused its discretion in denying merit review.

            The decision of the Office of Workers’ Compensation Programs dated March 13, 2001 is affirmed.

Dated,  Washington, DC

            November 26, 2002

 

 

 

 

                                                                                                            Michael J. Walsh

                                                                                                            Chairman

 

 

 

 

                                                                                                            Willie T.C. Thomas

                                                                                                            Alternate Member

 

 

 

 

                                                                                                            Michael E. Groom

                                                                                                            Alternate Member