United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.L., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Oakland, CA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-703 

Issued: September 16, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 3, 2014 appellant filed a timely appeal from a November 19, 2013 nonmerit 

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

reconsideration. Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.2

ISSUE 

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

review of the merits on the grounds that her request for reconsideration was not timely filed and 

did not establish clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that appellant submitted additional evidence following the November 19, 2013 decision. Since 

the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the 

Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 

57 ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration. 
2

FACTUAL HISTORY 

This case was previously before the Board.3 On October 31, 2011 appellant, then a 

48-year-old mail carrier, filed an occupational disease claim alleging that she sustained back and 

leg conditions as a result of carrying a heavy mailbag on her route.4 

Appellant submitted various work status reports, which indicated that she should work 

modified duty from October 25 to December 21, 2011. 

In an October 6, 2011 progress note, Dr. James Nguyen, Board-certified in physical 

medicine and rehabilitation, noted that appellant worked as a postal carrier and complained of 

left leg numbness and lower back pain. He conducted an examination and reviewed a magnetic 

resonance imaging (MRI) scan of the lumbar spine. Dr. Nguyen diagnosed multilevel 

broad-based disc bulges causing lateral region of narrowing and degenerative disc disease at the 

L5-S1 level. 

In a November 8, 2011 progress report, Dr. Elizabeth Kaiser, Board-certified in 

occupational medicine, related that appellant worked as a postal carrier and related her 

complaints of occasional low back pain that radiated to her left buttock, thigh and knee. 

She provided findings on physical examination and diagnosed degenerative disc disease, chronic 

low back and bilateral knee strain. Dr. Kaiser recommended that appellant work modified duty. 

She continued to examine appellant and provide progress reports dated December 7 and 21, 2011 

regarding her medical treatment for degenerative disc disease and bilateral knee strain. 

Dr. Kaiser recommended that appellant remain on modified duty. 

In a decision dated January 17, 2012, OWCP denied appellant’s occupational disease 

claim. It accepted that she worked as a mail carrier and was diagnosed with degenerative disc 

disease and bilateral knee sprains but denied her claim finding insufficient medical evidence to 

establish that her medical conditions were causally related to factors of her employment. 

Appellant filed an appeal before the Board. By decision dated November 9, 2012, the 

Board affirmed the January 17, 2012 denial decision finding that she had not met her burden of 

proof to establish that her accepted conditions were causally related to her employment duties. 

By letter dated November 3, 2013 and received on November 11, 2013, appellant 

requested reconsideration. She stated that she had hip problems in addition to back problems, 

which made it difficult to walk and sit. Appellant also noted that she recently had surgery on 

September 30, 2013. 

In a September 30, 2013 operative report, Dr. Theodore Scott Bucklin, a Board-certified 

orthopedic surgeon, who specializes in sports medicine, diagnosed labrum hip tear and noted that 

appellant underwent hip arthroscopic labral repair. 

 3

 Docket No. 12-1273 (issued November 9, 2012). 

4

 The record reveals that appellant filed two previous traumatic injury claims for September 16, 2009 and 

January 6, 2011 employment incidents. 
3

By decision dated November 19, 2013, OWCP denied appellant’s request for 

reconsideration on the grounds that it was not timely filed, as it was received on November 11, 

2013 and failed to establish clear evidence of error. 

LEGAL PRECEDENT 

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

OWCP regulations provide that an application for reconsideration must be received by OWCP 

within one year of the date of OWCP decision for which review is sought.5 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.6 The one-year period 

begins on the date of the original decision. However, a right to reconsideration within one year 

accompanies any subsequent merit decision on the issues. This includes any hearing or review 

of the written record decision, any denial of modification following reconsideration, any merit 

decision by the Board and any merit decision following action by the Board.7

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 

nonetheless undertake a limited review of the evidence previously of record to determine 

whether the new evidence demonstrates clear evidence of error.8

 In this regard, OWCP will limit 

its focus to a review of how the newly submitted evidence bears on the prior evidence of record.9 

The Board makes an independent determination of whether a claimant has submitted clear 

evidence of error on the part of OWCP such that it improperly denied merit review in the face of 

such evidence.10

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.11 Evidence that does not raise a substantial question 

concerning the correctness of OWCP’s decision is insufficient to establish clear evidence of 

error.

12 It is not enough merely to show that the evidence could be construed so as to produce a 

contrary conclusion.13 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 

 5

 20 C.F.R. § 10.607(a). 

6

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

7 See also C.J., Docket No. 12-1570 (issued January 16, 2013); D.G., 59 ECAB 455 (2008). 

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

9 Nelson T. Thompson, 43 ECAB 919 (1992). 

10 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993). 

11 20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997). 

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

13 Id. 
4

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.14

In computing the time for requesting reconsideration, the date of the event from which 

the designated period of time begins to run shall not be included but the last day of the period so 

computed shall be included, unless it is a Saturday, a Sunday or a legal holiday.15 

ANALYSIS 

The Board finds that this case must be remanded to OWCP for application of the 

appropriate standard of review because appellant’s request for reconsideration was timely 

submitted. 

The most recent merit decision in this case was the Board’s November 9, 2012 merit 

decision finding that appellant had not met her burden of proof to establish an occupational 

disease claim in the performance of duty. Appellant had one calendar year from the date of that 

decision or until November 9, 2013 to ensure that OWCP received any reconsideration request.16 

The Board notes that November 9, 2013 fell on a Saturday. It is well established that, when a 

time limitation expires on a nonbusiness day, the limitation is extended to include the next 

business day.17 The following Monday was November 11, 2013, which was Veterans Day, a 

federal holiday. Therefore, because the time limitation for filing a request for reconsideration 

fell on a nonbusiness day, the time period for filing a request for reconsideration did not expire 

until the next business day, which was Tuesday, November 12, 2013. Because appellant’s 

request for reconsideration was scanned as received on November 11, 2013, the Board finds that 

it was timely filed. 

The case will be remanded to OWCP for consideration of appellant’s request under the 

standard for reviewing a timely request for reconsideration.18

CONCLUSION 

The Board finds that appellant’s request for reconsideration received on November 11, 

2013 was timely filed. 

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

15 John B. Montoya, 43 ECAB 1148 (1992); see Donna A. Christley, 41 ECAB 90 (1989). 

16 Supra note 5. 

17 See M.H., Docket No. 13-1901 (issued January 8, 2014); Debra McDavid, 57 ECAB 149 (2005); Angel M. 

Lebron, Jr., 51 ECAB 488 (2000). 

18 The standard is found at 20 C.F.R. § 10.606(b)(3). 
5

ORDER 

IT IS HEREBY ORDERED THAT the November 19, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside. The case is remanded to OWCP for application 

of the proper standard for reviewing a timely request for reconsideration. 

Issued: September 16, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board