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United States Department of Labor

Employees’ Compensation Appeals Board

 

 

__________________________________________   PAMELA D. PARIS, Appellant   and   U.S. POSTAL SERVICE, POST OFFICE, Gaithersburg, MD, Employer __________________________________________

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Docket No. 04-499 Issued: July 13, 2004

Appearances:                                                                          Case Submitted on the Record

Pamela D. Paris, pro se

Office of Solicitor, for the Director

 

 

DECISION AND ORDER

 

Before:

ALEC J. KOROMILAS, Chairman

DAVID S. GERSON, Alternate Member

WILLIE T.C. THOMAS, Alternate Member

 

 

JURISDICTION

 

On December 17, 2003 appellant filed a timely appeal from the Office of Workers’ Compensation Programs’ nonmerit decision dated August 18, 2003.  Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over this nonmerit decision.[1]  The last merit decision of record is the Board’s December 11, 1995 decision[2] and because more than one
year has elapsed between the last merit decision and the filing of this appeal on December 17, 2003, the Board lacks jurisdiction to review the merits of appellant’s claim.[3]

 

ISSUE

 

            The issue is whether the Office properly refused to reopen appellant’s case for further review of the merits of her claim on the grounds that her application for review was not timely filed and failed to present clear evidence of error.

FACTUAL HISTORY

 

            This is the third appeal in the present case.  In the first appeal, the Board issued a decision[4] on December 11, 1995 in which it affirmed the Office’s January 25, April 8 and August 8, 1994 decisions, as modified to reflect that appellant had no disability after March 10, 1993 due to her February 9, 1992 left thumb injury.[5]  The Board found that the well-rationalized opinion of Dr. Anthony S. Unger, a Board-certified orthopedic surgeon who served as an impartial medical specialist, showed that appellant had no disability after March 10, 1993, due to her February 9, 1992 employment injury.  In the second appeal, the Board issued a decision[6] on February 26, 2003 affirming the Office’s April 2 and June 1, 2001 decisions on the grounds 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) because her applications for review were not timely filed and failed to present clear evidence of error.[7]  The facts and the circumstances of the case up to that point are set forth in the Board’s prior decision and are incorporated herein by reference.

LEGAL PRECEDENT

 

            To require the Office to reopen a case for merit review under section 8128(a) of the Federal Employees’ Compensation Act,[8] the Office’s regulations provide that a claimant must: (1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a relevant legal argument not previously considered by the Office; or (3) submit relevant and pertinent new evidence not previously considered by the Office.[9]  To be entitled to a merit review of an Office decision denying or terminating a benefit, a claimant also must file his or her application for review within one year of the date of that decision.[10]  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.[11]

            The Office, however, may not deny an application for review solely on the grounds that the application was not timely filed.  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.”[12]  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. § 10.607(a), if the claimant’s application for review shows “clear evidence of error” on the part of the Office.[13]

            To establish clear evidence of error, a claimant must submit evidence relevant to the issue which was decided by the Office.[14]  The evidence must be positive, precise and explicit and must manifest on its face that the Office committed an error.[15]  Evidence which does not raise a substantial question concerning the correctness of the Office’s decision is insufficient to establish clear evidence of error.[16]  It is not enough merely to show that the evidence could be construed so as to produce a contrary conclusion.[17]  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.[18]  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.[19]    

ANALYSIS

 

            In its August 18, 2003 decision, the Office properly determined that appellant failed to file a timely application for review.  The last merit decision of record is the Board’s December 11, 1995 decision and appellant’s request for reconsideration was dated June 7, 2003, more than one year after December 11, 1995.[20]

            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 decisions were in error.

The Board finds that appellant’s application for review does not raise a substantial question as to the correctness of the Office’s prior merit decisions and is insufficient to demonstrate clear evidence of error.  In connection with her application for review, appellant submitted a lengthy statement dated June 7, 2003.  In this statement, appellant argued that her June 7, 2003 reconsideration request was timely because it was filed within one year of the Board’s February 23, 2003 decision.  However, the Board notes that this argument has no validity as the one-year period for requesting reconsideration begins on the date of the original Office decision and only also accompanies a decision of the Board if that decision is a merit decision.[21]  The February 23, 2003 decision of the Board was a nonmerit decision denying appellant’s request for reconsideration and, as noted above, the last merit decision of the Board was dated December 11, 1995.  Appellant’s June 7, 2003 reconsideration request was filed more than one year after December 11, 1995.

            In her June 7, 2003 statement, appellant also claimed that the Office improperly terminated her compensation effective March 10, 1993 based on the opinion of Dr. Unger, a Board-certified orthopedic surgeon who served as an impartial medical specialist.  She asserted that Dr. Unger did not provide rationale for his opinion and claimed he inconsistently stated that she continued to have residuals of her left thumb injury but also stated that she had fully recovered from her injuries.  Appellant alleged that the reports of Dr. Rida N. Azer, an attending Board-certified orthopedic surgeon, showed that she had disability after March 10, 1993 due to her February 9, 1992 employment injury, left thumb tendinitis.  She claimed that Dr. Azer provided a consistent assessment of her condition over the years and that Dr. Azer’s diagnosis was “compatible” with those of Dr. Unger and Dr. Kennethe Cho, a Board-certified orthopedic surgeon who served as an Office referral physician.[22]  The Board notes that these arguments are not directly relevant to the main issue of the present case, i.e., whether appellant had disability after March  10, 1993 due to her February 9, 1992 employment injury.  This issue is medical in nature and should be resolved through the submission of medical evidence.  Appellant’s mere assertions regarding the sufficiency of the evidence of record would not show that the weight of the medical evidence regarding the relevant issue of the present case should have rested with Dr. Azer rather than with Dr. Unger.  Therefore, appellant’s argument would not clearly show that the Office erred in its prior decisions.

CONCLUSION

 

            The Board finds that the Office properly refused to reopen appellant’s case for further review of the merits of her claim on the grounds that her application for review was not timely filed and failed to present clear evidence of error.

ORDER

 

IT IS HEREBY ORDERED THAT the August 18, 2003 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: July 13, 2004

Washington, DC

 

 

                                                                                                            Alec J. Koromilas

                                                                                                            Chairman

 

 

 

 

                                                                                                            David S. Gerson

                                                                                                            Alternate Member

 

 

 

 

                                                                                                            Willie T.C. Thomas

                                                                                                            Alternate Member