United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland, OH, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-541 

Issued: May 27, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Acting Chief Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 13, 2014 appellant, through counsel, filed a timely appeal from a 

December 20, 2013 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 April 20, 2012 

decision denying appellant’s occupational disease claim. Because more than 180 days elapsed 

from 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 January 18, 2012 appellant, then a 57-year-old mail clerk, filed an occupational 

disease claim (Form CA-2) alleging carpal tunnel syndrome (CTS) as a result of her federal 

employment duties. She first became aware of her condition and of its relationship to her 

employment on September 26, 2011. 

By letter dated February 3, 2012, OWCP informed appellant that the evidence of record 

was insufficient to support her claim. She was advised of the medical and factual evidence 

needed and asked that she respond to the provided questions within 30 days. 

Appellant submitted a narrative statement describing her federal employment duties and 

the repetitive use of her hands. 

In a December 28, 2011 electromyography (EMG) and nerve conduction study, Dr. Mark 

Rorick, a Board-certified neurologist, reported that testing revealed abnormal for the right upper 

extremity. He stated that the findings were diagnostic of right median neuropathy at or distal to 

the wrist (CTS). 

In reports dated December 28, 2011 and January 31, 2012, Dr. Rorick diagnosed bilateral 

carpal tunnel syndrome, right greater than left. 

By decision dated April 20, 2012, OWCP denied appellant’s claim. It found that the 

medical evidence of record failed to establish that her diagnosed condition was causally related 

to the established work-related events. 

By letter dated October 9, 2013, appellant stated that she still experienced symptoms of 

CTS as a result of her federal employment duties. She described her employment duties and 

stated that her condition was caused by her employment over the course of the prior 30 years. 

By letter dated December 9, 2013, appellant requested reconsideration of OWCP’s 

decision. She submitted an October 24, 2013 letter from Dr. Todd S. Hochman, Board-certified 

in internal medicine. Dr. Hochman opined that appellant’s bilateral CTS was caused as a result 

of her federal employment duties as a mail clerk. 

By decision dated December 20, 2013, OWCP denied appellant’s reconsideration request 

as untimely filed and failing to establish clear evidence of error.3

 

 3

 The Board notes that appellant submitted additional evidence after OWCP rendered its December 20, 2013 

decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final 

decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E. 

Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). 
3

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

ANALYSIS 

In its December 20, 2013 decision, OWCP properly determined that appellant failed to 

file a timely application for review. An application for reconsideration must be received within 

one year of the date of OWCP’s decision.12 A right to reconsideration within one year also 

 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). 

12 20 C.F.R. § 10.607 (2011). 
4

accompanies any subsequent merit decision on the issues.13 Appellant’s December 9, 2013 

request for reconsideration was submitted and received more than one year after issuance of the 

April 20, 2012 merit decision. Therefore, it was untimely. Consequently, appellant must 

demonstrate clear evidence of error by OWCP in denying her claim.14

The Board finds that appellant has not established clear evidence of error on the part of 

OWCP. Appellant submitted an October 24, 2013 report from Dr. Hochman, who stated that 

appellant’s repetitive employment duties caused her bilateral CTS. However, this evidence is 

insufficient to establish that OWCP erred in the denial of appellant’s claim.15 Dr. Hochman’s 

report did not provide detailed medical rationale explaining how appellant’s federal employment 

duties caused her injury other than generally stating that repetitive use of her upper extremities 

caused her CTS. Furthermore, this evidence was submitted after OWCP’s April 20, 2012 merit 

decision. The Board notes that clear evidence of error is intended to represent a difficult 

standard. Evidence, such as a detailed well-rationalized medical report, which if submitted 

before the merit denial might require additional development of the claim, is insufficient to 

establish clear evidence of error.16 While Dr. Hochman’s report was generally supportive of 

appellant’s claim, it is not sufficient to establish clear evidence of error.17 This evidence does 

not raise a substantial question as to the correctness of OWCP’s April 20, 2012 merit decision. 

On appeal, appellant argues that her 30-year employment as a mail clerk caused her 

bilateral CTS. The Board notes that the underlying issue is medical in nature. The medical 

evidence submitted was not sufficient to shift the weight of the evidence in appellant’s favor or 

to establish that OWCP erred in denying her claim. 

As none of the evidence raises a substantial question concerning the correctness of 

OWCP’s decision, appellant has failed to establish clear evidence of error on the part of OWCP 

in denying further merit review.18

CONCLUSION 

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

not demonstrate clear evidence of error. 

 13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Time Limitations, Chapter 2.1602(e)(6) 

(August 2011). 

14 See Debra McDavid, 57 ECAB 149 (2005). 

15 See W.R., Docket No. 09-2336 (issued June 22, 2010). 

16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (March 2011). 

17 V.W., Docket No. 12-1901 (issued March 5, 2013). 

18 A.S., Docket No. 11-356 (issued September 16, 2011). 
5

ORDER 

IT IS HEREBY ORDERED THAT the December 20, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 27, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Acting Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board