United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.N., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Angola, NY, Employer 

__________________________________________ 

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Docket No. 14-34 

Issued: March 7, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 15, 2013 appellant, through her attorney, filed a timely appeal from a 

September 10, 2013 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP) denying her request for reconsideration. Because more than 180 days elapsed from the 

last merit decision dated May 8, 2012 to the filing of this appeal, the Board lacks jurisdiction to 

review the merits of appellant’s claim. Pursuant to the Federal Employees’ Compensation Act1

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review September 10, 

2013 nonmerit decision. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration on 

the grounds that it was not timely filed and did not demonstrate clear evidence of error. 

On appeal, appellant contends that the evidence establishes that she sustained an 

employment injury. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On November 25, 2011 appellant, then a 47-year-old full-time regular city carrier, filed 

an occupational disease claim alleging that on that date she first became aware of her elbow and 

neck conditions and their relationship to her employment duties. In an attached statement, she 

stated that she felt shooting pain in both elbows on November 25, 2011 while sorting mail. 

Appellant also experienced pain while casing mail, lifting trays of mail and lifting packages and 

delivering mail. She began experiencing neck pain in the fall of 2008. 

By letter dated December 15, 2011, OWCP informed appellant that the evidence of 

record was insufficient to support her claim. Appellant was advised to submit additional medical 

and factual evidence in 30 days. 

On January 3, 2012 OWCP received a December 14, 2011 report from Dr. Thomas 

McTernan, Jr., a treating Board-certified internist, who provided physical findings and diagnosed 

cervicalgia. A review of an x-ray showed degenerative disc disease. 

By decision dated January 25, 2012, OWCP denied appellant’s claim finding that fact of 

injury had not been established. It determined that the evidence was insufficient to establish that 

the work exposure occurred as alleged as she failed to provide a statement describing how her 

condition arose. OWCP also found that the record contained no medical evidence providing a 

diagnosed medical condition causally related to appellant’s employment duties. 

On February 12, 2012 appellant requested a review of the written record by an OWCP 

hearing representative. 

In a December 8, 2011 letter, Dr. McTernan advised that appellant was capable of 

working with restrictions and was disabled from working until December 12, 2011. On 

December 14, 2011 he diagnosed significant neck degenerative disc disease. In February 6, 

2012 duty status report, Dr. McTernan noted an injury date of November 25, 2011. He described 

the injury as occurring due to casing and carrying mail. Dr. McTernan noted pain in the elbows 

and neck and diagnosed a cervical strain, which he attributed to appellant’s employment. 

By decision dated May 8, 2012, the hearing representative affirmed the denial of 

appellant’s claim finding insufficient medical evidence which addressed causal relationship. The 

decision informed appellant that any request for reconsideration had to be made within one year 

of that decision. 

In a June 21, 2012 report, Dr. Loubert S. Suddaby, a treating Board-certified neurological 

surgeon, diagnosed neck sprains and strains and brachial neuritis or radiculitis. Appellant related 

that she sustained a work injury on December 1, 2011 when she noted increased neck and arm 

pain due to her duties as a letter carrier. Dr. Suddaby checked “yes” to the form question as to 

whether her condition was due to the history of injury she provided. 

In progress notes dated June 25 through December 5, 2012, Dr. McTernan provided 

findings an physical examination and diagnosed cervical disc disorder, ulnar nerve injury, 

cervicalgia and lateral epicondylitis. In a June 25, 2012 report, appellant related having 

increased levels of pain by the end of her workday. On September 12, 2012 Dr. McTernan 
3

opined that her cervicalgia was due to her work requirements. He again checked “yes” to the 

questions concerning whether appellant’s complaints were consistent with her injury history. 

On September 6, 2012 Dr. P. Jeffrey Lewis, a treating Board-certified neurological 

surgeon, reported that a review of a magnetic resonance imaging scan revealed C5-6 and C6-7 

disc herniation and a C4-5 mild central disc bulge. Appellant stated that her neck pain increased 

in November and December 2011, which she attributed to her repetitive work duties as well as 

constant lifting and carrying of mail. Dr. Lewis opined that her preexisting condition had been 

aggravated by her work activities. 

In a September 20, 2012 report, Dr. Lewis stated that appellant complained of severe 

neck pain due to the C5-6 and C6-7 herniated discs. 

In reports dated May 25 and July 28, 2013, Dr. Lewis noted that in January 2012 

appellant underwent C5-6 and C6-7 anterior cervical discectomy and fusion. In all the reports, 

he checked “yes” to the questions concerning whether her complaints were consistent with her 

injury history. 

On August 19, 2013 appellant requested reconsideration. She noted that her 

reconsideration request was untimely, but argued that she relied on her attorney to timely file the 

reconsideration request. Appellant stated that she hired an attorney in August 31, 2012 to submit 

her request, which was not done. 

By decision dated September 10, 2013, OWCP denied appellant’s request for 

reconsideration finding that it was not timely filed and failed to present clear evidence of error.2

 

LEGAL PRECEDENT 

To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a 

claimant must file his or her application for review within one year of the date of that decision.3 

The Board has found that the imposition of the one-year time limitation does not constitute an 

abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.4

OWCP, 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, it must 

nevertheless undertake a limited review to determine whether the application establishes clear 

evidence of error.5

 OWCP’s regulations and procedures provide that OWCP will reopen a 

 2

 The Board notes that, following the September 10, 2013 decision, OWCP received additional evidence. 

Appellant also submitted this evidence with her appeal to the Board. However, the Board may only review evidence 

that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 

09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 

ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 

3

 20 C.F.R. § 10.607(a). 

4

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

5 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 
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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 OWCP.6

To establish clear evidence of error, a claimant must submit evidence relevant to the issue 

which was decided by OWCP.7 The evidence must be positive, precise and explicit and must 

manifest on its face that OWCP committed an error.8 Evidence which does not raise a 

substantial question concerning the correctness of OWCP’s decision is insufficient to establish 

clear evidence of error.9

 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.10 This entails a limited review by OWCP 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 OWCP.11 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 OWCP’s decision.12

OWCP’s procedures were changed effective August 29, 2011. Section 10.607 of the new 

regulations provide that the date of the reconsideration request for timeliness purposes was 

changed from the date the request was mailed to the date the request was received by OWCP.13

ANALYSIS 

OWCP properly determined that appellant failed to file a timely application for review. 

Its procedures provide that the one-year time limitation period for requesting reconsideration 

must be received by OWCP within one year of the date-of-the decision.14 A right to 

reconsideration within one year also accompanies any subsequent merit decision on the issues.15 

 6 Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011). 

OWCP’s procedures further provide that the term clear evidence of error is intended to represent a difficult standard. 

The claimant must present evidence which on its face shows that OWCP made an error (for example, proof that a 

schedule award was miscalculated). Evidence such as a detailed well-rationalized medical report which, if 

submitted before the denial was issued, would have created a conflict in medical opinion requiring further 

development, is not clear evidence of error. Id. at Chapter 2.1602.5a. 

7 See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992). 

8 See Leona N. Travis, 43 ECAB 227, 240 (1991). 

9 See Jesus D. Sanchez, 41 ECAB 964, 968 (1990). 

10 See Leona N. Travis, supra note 8. 

11 See Nelson T. Thompson, 43 ECAB 919, 922 (1992). 

12 Leon D. Faidley, Jr., supra note 4. 

13 20 C.F.R. § 10.607. 

14 Id. at § 10.607(a). 

15 Robert F. Stone, 57 ECAB 393 (2005).
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As OWCP did not receive appellant’s August 19, 2013 request for reconsideration until 

August 23, 2013, which was more than one year after the last merit decision, issued on May 8, 

2012 it was untimely. Consequently, appellant must demonstrate clear evidence of error by 

OWCP in denying her claim that her cervical condition had been caused or aggravated by her 

employment duties.16

The Board finds that the evidence submitted by appellant does not raise a substantial 

question as to the correctness of OWCP’s decision and is insufficient to demonstrate clear 

evidence of error. The request does not show on its face that OWCP’s denial of her claim was 

erroneous. Appellant has not shown how OWCP committed any error in denying her claim that 

her cervical condition had been caused or aggravated by the employment factors identified by 

appellant. Nothing in her August 19, 2013 request for reconsideration remotely suggests that 

OWCP’s May 8, 2012 decision was erroneous in finding that her cervical condition had been 

cause or aggravated by her employment duties. The medical evidence received by OWCP 

subsequent to the May 8, 2012 decision does not contain any medical rationale explaining the 

causal relationship between appellant’s cervical condition and her employment duties. 

Dr. Suddaby diagnosed neck sprain and strain and brachial neuritis or neuritis and checked “yes” 

to the question of whether it was due to the injury history provided by appellant. Dr. McTernan 

opined that her cervicalgia was due to her employment duties checked “yes” to the question of 

whether it was due to the injury history provided by appellant. Lastly, Dr. Lewis diagnosed neck 

pain which he attributed to her duties of constant lifting and carrying and her repetitive work. He 

also checked “yes” to the question of whether it was due to the injury history provided by 

appellant. None of these reports correct the original defect in her claim, as none of reports 

contain any rationalized medical opinion on the issue of causal relationship. The medical reports 

from these physicians do not contain any opinion explaining the cause of appellant’s current 

condition or how her employment duties caused or aggravated her cervical condition. Due to 

these defects, the medical reports are not of sufficient probative value to prima facie shift the 

weight of the evidence in favor of the claimant and raise a fundamental question as to the 

correctness of OWCP’s decisions. 

The Board finds that appellant’s request for reconsideration fails to demonstrate clear 

evidence of error. The request does not show on its face that OWCP’s denial of appellant’s 

claim was erroneous. Appellant has not shown how OWCP committed any error in denying her 

occupational disease claim. 

On appeal, appellant contends that she hired an attorney in August 2012 to pursue her 

claim and that she was unaware that the attorney had not requested reconsideration or actively 

pursued her claim. The May 8, 2012 the hearing representative’s decision contained clear 

instructions that any request for reconsideration had to be made within one year of that decision. 

In her August 19, 2013 reconsideration request, appellant acknowledges that her request was 

untimely, but that the request was untimely because she thought the attorney had hired had filed 

a timely request. Appellant was aware of OWCP’s requirement that a reconsideration request 

must be made within one year of the decision in order to be timely. She did not submit her 

 16 20 C.F.R. § 10,607(a); see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 149 (2005). 
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request for reconsideration within one year of the May 8, 2012 hearing representative’s decision 

and has not provided any evidence showing why she was unable to timely file her request. 

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s claim for 

reconsideration of the merits on the grounds that it was untimely and failed to show clear 

evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated September 10, 2013 is affirmed. 

Issued: March 7, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board