United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Detroit, MI, Employer 

__________________________________________ 

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Docket No. 14-109 

Issued: March 21, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 21, 2013 appellant, through her attorney, filed a timely appeal from a 

September 16, 2013 nonmerit decision of the Office of Workers’ Compensation Programs 

denying her request for reconsideration as untimely filed and failing to demonstrate clear 

evidence of error. Because more than 180 days has elapsed from the last merit decision dated 

January 5, 2011 to the filing of this appeal, the Board lacks jurisdiction to review the merits of 

her claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3. The only decision properly before the 

Board is the September 16, 2013 nonmerit decision denying her request for reconsideration. 

ISSUE 

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

the grounds that it was untimely filed and failed to establish clear evidence of error. 

FACTUAL HISTORY 

This case has previously been before the Board on appeal. The pertinent facts are as 

follows. On January 4, 2010 appellant, then a 31-year-old mail carrier, filed a traumatic injury 
2

claim alleging that she developed traumatic stress when she was robbed at gun point on 

December 31, 2009 while delivering mail. By decision dated March 1, 2010, OWCP denied her 

emotional condition claim on the grounds that Dr. Youg J. Kwon, a Board-certified psychiatrist, 

offered a speculative opinion as he stated that her symptoms “appear” to be related to her 

employment incident. Appellant requested an oral hearing before an OWCP hearing 

representative on March 16, 2010. By decision dated July 20, 2010, the hearing representative 

denied appellant’s claim on the grounds that the record was “devoid of sufficient medical 

evidence showing that there was an actual diagnosable condition incurred specifically due to this 

incident.” By decision dated January 5, 2011, OWCP denied modification of its prior decisions. 

Appellant requested reconsideration on June 22, 2011. She resubmitted a report from 

Dr. Pawan K. Garg, a Board-certified psychiatrist, dated September 2, 2010 with a May 3, 2011 

addendum as well as resubmitting factual information. Dr. Garg’s addendum noted that 

appellant’s post-traumatic stress syndrome (PTSD) condition was directly related to trauma 

sustained while performing her letter carrier duties on December 31, 2009. By decision dated 

September 6, 2011, OWCP declined to reopen her claim for consideration of the merits. The 

Board affirmed OWCP’s September 6, 2011 nonmerit decision on April 25, 2012.1

Counsel requested reconsideration on October 12, 2012. In support of this request, 

Dr. Garg completed a form report on September 10, 2012. He noted that he first examined 

appellant on September 2, 2010 and diagnosed PTSD. Dr. Garg stated that she had emotional 

problems since she was injured at work as she was robbed at gunpoint while performing her 

letter carrier duties on December 31, 2009. He stated that appellant was traumatized with 

anxiety and recurring intrusive recollections of the trauma. Dr. Garg opined that her injury was 

directly caused by her workers’ compensation injury. By decision dated December 6, 2012, 

OWCP declined to reopen appellant’s claim for consideration of the merits on the grounds that 

the report was duplicative of his September 2, 2010 and May 3, 2011 notes. The Board reviewed 

her claim by decision dated June 25, 20132

 and found that Dr. Garg’s report was repetitious and 

that OWCP properly denied further merit review. The facts and circumstances of the case as set 

forth in the Board’s prior decisions are adopted herein by reference. 

Following the Board’s June 25, 2013 decision, counsel requested reconsideration on 

August 5, 2013. He submitted a brief detailing the burden of proof to establish a claim under 

FECA. In support of this request, appellant submitted treatment notes from Apex Behavioral 

Health as well as a summary of these records. The majority of the notes are signed by Linda 

Thibault, who lists her qualifications as “Psy.D., LLP.” Dr. Kwon completed a note dated 

January 20, 2010 and provided a diagnosis of post-traumatic stress disorder. He noted that 

appellant was robbed at work. In a second note dated February 3, 2010, Dr. Kwon indicated that 

she was seeing a psychologist and a third note dated March 3, 2010 he noted her fear of going 

out of the house. Appellant submitted a police report dated December 31, 2009. She also 

submitted a portion of an OWCP hearing transcript and its decision dated June 20, 2010. 

 1

 Docket No. 12-79 (issued April 25, 2012). 

2

 Docket No. 13-698 (issued June 25, 2013). 
3

By decision dated September 16, 2013, OWCP denied appellant’s request for 

reconsideration on the grounds that the request was not timely filed and did not present clear 

evidence of error. 

LEGAL PRECEDENT 

Under section 8128(a) of FECA3 OWCP has the discretion to reopen a case for review on 

the merits, on its own motion or on application by the claimant. It must exercise this discretion in 

accordance with section 10.607 of the implementing federal regulations. Section 10.607 provides 

that “An application for reconsideration must be sent within one year of the date of [OWCP’s] 

decision for which review is sought.”4 In Leon D. Faidley, Jr.,5 the Board held that the imposition 

of the one-year time limitation for filing an application for review was not an abuse of the 

discretionary authority granted OWCP under section 8128(a) of FECA. The one-year time 

limitation period set forth in 20 C.F.R. § 10.607 does not restrict OWCP from performing a limited 

review of any evidence submitted by a claimant with an untimely application for reconsideration. 

OWCP is required to perform a limited review of the evidence submitted with an untimely 

application for review to determine whether a claimant has submitted clear evidence of error on the 

part of OWCP thereby requiring merit review of the claimant’s case. 

Thus, if the request for reconsideration is made after more than one year has elapsed from 

the issuance of the decision, the claimant may only obtain a merit review if the application for 

review demonstrates “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 be 

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 

 3

 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.607. 

5

 41 ECAB 104, 111 (1989). 

6 Supra note 4; Jesus D. Sanchez, 41 ECAB 964, 968 (1990). 

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

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

9 See Jesus D. Sanchez, supra note 6. 

10 See supra note 8. 

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

fundamental question as to the correctness of OWCP’s decision.12 The Board makes an 

independent determination of whether a claimant has submitted clear evidence of error on the part 

of OWCP such that it abused its discretion in denying merit review in the face of such evidence.13

ANALYSIS 

The only decision before the Board on this appeal is that of OWCP dated 

September 16, 2013 in which it declined to reopen appellant’s case on the merits because the 

request was not timely filed and did not show clear evidence of error. Since more than 180 days 

elapsed from the date of issuance of the January 5, 2011 merit decision to the date of the filing of 

appellant’s appeal, on October 21, 2013, the Board lacks jurisdiction to review that decision.14

The Board finds that the September 16, 2013 refusal of OWCP to reopen appellant’s claim 

for further consideration on the merits of the claim under 5 U.S.C. § 8128(a) on the basis that her 

request for reconsideration was not timely filed within the one-year time limitation period set forth 

in 20 C.F.R. § 10.607 and did not show clear evidence of error was proper and did not constitute 

abuse of discretion. 

In support of her request for reconsideration, appellant submitted a brief from counsel 

which did not address the specific issue in this case or the lack of medical evidence supporting her 

claim. As the legal arguments in the brief did not address any specific error on the part of OWCP, 

these arguments were not sufficient to require review of the merits of her claim. 

Appellant also submitted medical treatment records and summary of these records. The 

majority of these documents were not signed by a physician instead listing the signature of 

Dr. Thibault. There is no evidence that Dr. Thibault is a medical doctor or a licensed clinical 

psychologist.15 A psychologist reports are not medical evidence as a psychologist is not a 

physician under FECA.16 As these notes were not signed by the physician the notes have no 

probative value in establishing appellant’s claim.17 Furthermore, Dr. Kwon’s three notes, the 

January 20, 2010 diagnosis of PTSD, the February 3, 2010 note indicating that appellant was 

seeing a psychologist and the March 3, 2010 note mentioning her fear of going out of the house 

are not sufficiently detailed and well reasoned to meet her burden of establishing that she 

sustained a compensable work injury on December 31, 2009 and do not have 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 decision. 

 12 Supra note 5 at 114. 

13 Gregory Griffin, 41 ECAB 458, 466 (1990). 

14 See 20 C.F.R § 501.3(e). 

15 N.Y., Docket No. 12-993 (issued December 7, 2012). 

16 5 U.S.C. §§ 8101-8193, 8101(2); Thomas R. Horsefall, 48 ECAB 180 (1996).

17 Merton J. Sills, 39 ECAB 572 (1988). 
5

Appellant also submitted a police report, a hearing transcript and a decision from the 

Branch of Hearings and Review. These documents are not relevant to the central outstanding issue 

in her claim, whether the medical evidence is sufficiently detailed and well reasoned to establish 

that she developed an emotional condition due to her December 31, 2009 work exposure. As these 

documents are not relevant, the documents cannot shift the weight of the evidence in favor of the 

claimant and raise a fundamental question as to the correctness of OWCP’s decision. 

CONCLUSION 

The Board finds that the August 5, 2013 request for reconsideration was untimely filed 

and that this request did not establish clear evidence of error on the part of OWCP. 

ORDER 

IT IS HEREBY ORDERED THAT the September 16, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 21, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board