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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. 04-545 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:

COLLEEN DUFFY KIKO, Member

DAVID S. GERSON, Alternate Member

MICHAEL E. GROOM, Alternate Member

 

 

JURISDICTION

 

On December 22, 2003 appellant filed a timely appeal from the Office of Workers’ Compensation Programs’ nonmerit decision dated November 6, 2003.  Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over this nonmerit decision.  The last merit decision of record is the Board’s December 11, 1995 decision.[1]  Because more than one year has elapsed between the last merit decision and the filing of this appeal on December 22, 2003, the Board lacks jurisdiction to review the merits of this claim.[2]

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,[3] the Board issued a decision on December 11, 1995 in which it affirmed the Office’s April 8 and June 9, 1994 decisions on the grounds that appellant did not meet her burden of proof to establish that she sustained a recurrence of total disability on or after February 19, 1992 due to her accepted December 2, 1986 right hand and wrist injury.[4]  The Board determined that the reports of appellant’s attending Board-certified orthopedic surgeons, Dr. Rida N. Azer and Dr. William E. Gentry, did not show that she sustained such an employment-related recurrence of disability.  In the second appeal,[5] the Board issued a decision on March 17, 2003 affirming the Office’s February 21 and May 4, 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.[6]  The facts and circumstances of the case are set forth in the Board’s prior decisions and are incorporated herein by reference.

LEGAL PRECEDENT

 

            To be entitled to a merit review of an Office decision denying or terminating a benefit, a claimant must file her application for review within one year of the date of that decision.[7]  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 Federal Employees’ Compensation Act.[8]

            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.”[9]  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.[10]

            To establish clear evidence of error, a claimant must submit evidence relevant to the issue which was decided by the Office.[11]  The evidence must be positive, precise and explicit and must manifest on its face that the Office committed an error.[12]  Evidence which does not raise a substantial question concerning the correctness of the Office’s decision is insufficient to establish clear evidence of error.[13]  It is not enough merely to show that the evidence could be construed so as to produce a contrary conclusion.[14]  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.[15]  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.[16]

ANALYSIS

 

            In its November 6, 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 September 4, 2003, more than one year after December 11, 1995.[17]

            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 statement dated September 4, 2003.  Appellant contended that her September 4, 2003 reconsideration request was timely because it was filed within one year of the Board’s March  17, 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.[18]  The March 17, 2003 decision of the Board was a nonmerit decision denying appellant’s request for reconsideration.  As noted above, the last merit decision of the Board was dated December 11, 1995.  Appellant’s September 4, 2003 reconsideration request was filed more than one year after December 11, 1995.

            Appellant also asserted that the Office improperly denied her claim that she sustained a recurrence of total disability on or after February 19, 1992 due to her accepted December 2, 1986 right hand and wrist injury.  Appellant alleged that the opinion of Dr. Azer, an attending Board-certified orthopedic surgeon, showed that she had disability after February 19, 1992 due to her December 2, 1986 injury.  She submitted numerous reports of Dr. Azer, dated between December 1986 and October 2003, which showed that she remained symptomatic in her right hand and wrist.  However, these reports would not be relevant as they contain no rationalized medical opinion that appellant had disability on or after February 19, 1992 due to her December 2, 1986 employment injury.[19]

            Appellant argued that the Office had the burden of proof to show that she had no disability after February 19, 1992 due to her December 2, 1986 employment injury.  The record shows that appellant returned to limited-duty work on December 29, 1990 and then claimed that she sustained a recurrence of total disability on February 19, 1992.  Appellant’s argument would have no validity as Board precedent clearly shows that, under these circumstances, appellant would have the burden of proof to establish disability on or after February 19, 1992 due to her
December 2, 1986 employment injury.[20]  Appellant also made reference to case law involving the termination of compensation when an employee refuses or neglects to work in a position which is offered by the employing establishment and deemed to be suitable by the Office.  She claimed that the Office did not abide by the precedent contained in these decisions.  However, the present case does not involve the termination of compensation, whether due to the refusal of an offer of suitable work or any other reason.  Therefore, the arguments and evidence that appellant submitted in connection with her application for review 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 November 6, 2003 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: July 13, 2004

Washington, DC

 

 

                                                                                                            Colleen Duffy Kiko

                                                                                                            Member

 

 

 

 

                                                                                                            David S. Gerson

                                                                                                            Alternate Member

 

 

 

 

                                                                                                            Michael E. Groom

                                                                                                            Alternate Member