United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.K., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Portland, OR, Employer 

__________________________________________ 

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Docket No. 14-1307 

Issued: October 2, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On May 20, 2014 appellant filed a timely appeal from a February 19, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for 

reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of 

error. 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 the nonmerit decision by OWCP. 

The last merit decision of record was OWCP’s January 9, 2013 decision denying appellant’s 

recurrence claim. Because more than 180 days elapsed from issuance of the last merit decision 

to the filing of this appeal, the Board lacks jurisdiction to review the merits of this case.2

 1

 5 U.S.C. § 8101 et seq.

2

 For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of 

OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R. 

§ 501.3(e). 
2

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review of the merits on the grounds that it was untimely filed and failed to demonstrate clear 

evidence of error. 

FACTUAL HISTORY 

On April 15, 2000 appellant, then a 29-year-old postal employee, sustained injury 

accepted by OWCP for a sprain of neck and contusion of face, scalp and neck except the eyes. 

Following the injury, appellant returned to limited-duty work until April 2, 2003, when she 

separated from the postal service. 

On October 25, 2012 appellant filed a notice of recurrence claim (Form CA-2a) alleging 

a return of disability as of September 16, 2002. 

By letter dated November 26, 2012, OWCP informed appellant that the evidence of 

record was insufficient to support her recurrence claim. Appellant was advised of the medical 

and factual evidence needed and was directed to submit it within 30 days. 

In support of her claim, appellant submitted medical reports dated January 3 to 

December 14, 2012 from Dr. Roland Feltner, Board-certified in family medicine. Dr. Feltner 

reported that diagnostic studies revealed ongoing lumbar disc disease and bone spur formation at 

the base of the lumbar spine. He further noted advancing arthritic changes from previous workrelated injuries. Dr. Feltner stated that he could not give a specific date of exacerbation for the 

cervical and lumbar spine work injuries as the changes had been gradual and progressive. He 

diagnosed lumbar spine displacement and cervical arthritis and opined that appellant’s conditions 

were the result of an exacerbation of injuries initially sustained on April 15, 2000. 

By decision dated January 9, 2013, OWCP denied appellant’s recurrence claim finding 

that the medical evidence did not establish that she sustained disability as of September 16, 2002 

causally related to the accepted April 15, 2000 employment injury. It noted that appellant failed 

to establish her claim because there was an intervening event on September 16, 2002, the date 

she claimed a recurrence of disability.3

In an appeal request form dated January 5, 2014, appellant requested reconsideration of 

the January 9, 2013 OWCP decision. OWCP scanned the appeal as having been received on 

January 14, 2014. A copy of the United States Postal Service (USPS) priority mail express twoday envelope contained a January 8, 2014 postmark. The envelope’s USPS tracking number 

9470110200881040180356 established arrival at the London, KY, Post Office on January 10, 

2014, available for pickup and delivery on January 13, 2014. Enclosed with her reconsideration 

 3

 The Board notes that on September 16, 2002 appellant alleged that she sustained a neck, back and upper 

shoulders injury when pulling mail from a truck, claim No. xxxxxx027. On November 6, 2002 OWCP accepted the 

claim for cervical strain. On September 15, 2010 appellant filed a notice of recurrence in claim No. xxxxxx027. By 

decision dated August 11, 2011, OWCP denied appellant’s recurrence claim. The record before the Board contains 

no further information regarding this claim, No. xxxxxx027. 
3

packet, appellant submitted narrative statements arguing that her initial injury occurred in 2000 

and that she sustained a recurrence of disability on September 16, 2002 while pulling mail off a 

distribution truck and felt pain in her neck, back and shoulders. Appellant referenced claim No. 

xxxxxx027 with respect to her September 16, 2002 injury. 

By decision dated February 19, 2014, OWCP denied appellant’s reconsideration request 

as untimely filed and failing to establish clear evidence of error. 

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.4 

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

of the discretionary authority granted OWCP under section 8128(a) of FECA.5

 

OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year 

filing limitation, if the claimant’s application for review shows clear evidence of error on the part 

of OWCP in its most recent merit decision. To establish clear evidence of error, a claimant must 

submit evidence relevant to the issue decided by OWCP. The evidence must be positive, precise 

and explicit and it must manifest on its face that OWCP committed an error.6

To show clear evidence of error, the evidence submitted must not only be of sufficient 

probative value to create a conflicting medical opinion or establish a clear procedural error, but 

must be of sufficient probative value to shift the weight of the evidence in favor of the claimant 

and raise a substantial question as to the correctness of OWCP’s decision.7

Evidence that does not raise a substantial question concerning the correctness of OWCP’s 

decision is insufficient to establish clear evidence of error.8 It is not enough merely to show that 

the evidence could be construed so as to produce a contrary conclusion.9 This entails a limited 

review by OWCP of the evidence previously of record and whether the new evidence 

demonstrates clear error on the part of OWCP.10 The Board makes an independent 

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

OWCP.11

 4

 20 C.F.R. § 10.607(a). 

5

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 

6

 20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997). 

7 Annie L. Billingsley, 50 ECAB 210 (1998). 

8 Jimmy L. Day, 48 ECAB 652 (1997). 

9 Id. 

10 Id. 

11 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993). 
4

ANALYSIS 

In its February 19, 2014 decision, OWCP denied appellant’s January 14, 2014 request for 

reconsideration of the January 9, 2013 decision, finding that it was not timely filed and failed to 

present clear evidence of error. The Board finds that OWCP properly determined 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. 

OWCP’s procedures were changed effective August 29, 2011.12 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 

OWCP issued its merit decision denying appellant’s claim for recurrence of disability on 

January 9, 2013. The one-year time limitation for reconsideration began to run on the date of the 

original decision, and the application for reconsideration must be received by OWCP within one 

year of the date of OWCP’s decision for which review is sought.14 Therefore, appellant had one 

year from January 9, 2013 to submit a timely request for reconsideration, which OWCP had to 

receive by January 9, 2014. 

At the time that OWCP’s January 9, 2013 decision was issued, OWCP regulations 

provided that a request shall be received within one year of the date of the OWCP decision for 

which review is sought. The USPS tracking provided establishes that the reconsideration request 

did not arrive at the London, KY, Post Office until January 10, 2014, was not deliverable until 

January 13, 2014, and scanned as received on January 14, 2014.15 As appellant’s reconsideration 

request was not received by January 9, 2014, one year after the date of the last merit decision of 

record on January 9, 2014, it was untimely. Consequently, appellant must demonstrate clear 

evidence of error by OWCP in denying her claim.16

In the merit denial of the claim, OWCP found that appellant had not established that she 

sustained a recurrence of disability as of September 16, 2002. In its February 19, 2014 decision, 

OWCP found that it did not err when it determined that appellant had an intervening injury from 

another accepted claim for the date she claimed recurrence. The Board notes that appellant’s 

statements submitted with her reconsideration packet relate that she injured her neck, back and 

shoulders when she was pulling mail off a distribution truck on September 16, 2002 in claim No. 

xxxxxx027. This evidence addresses an intervening event. Appellant did not submit positive, 

precise or explicit evidence that manifests on its face that OWCP committed an error in finding 

that the evidence of record did not establish a spontaneous change in appellant’s April 15, 2000 

 12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602(e)(6) (October 2011). 

13 20 C.F.R. § 10.607 (2011). 

14 Supra note 12. 

15 Moreover, timeliness is determined based on the iFECS “received date.” See Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4b. 

16 See Debra McDavid, 57 ECAB 149 (2005). 
5

employment injury on September 16, 2002.17 Thus, she did not establish clear evidence of error 

in the denial of a claim for a recurrence of disability.18

CONCLUSION 

The Board finds that appellant’s request for reconsideration was untimely filed and did 

not demonstrate clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the February 19, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 2, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 J.T., Docket No. 10-313 (issued February 24, 2010). 

18 B.B., Docket No. 08-232 (issued August 7, 2008).