United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.B., Appellant 

and 

U.S. POSTAL SERVICE, SULPHUR SPRINGS 

POST OFFICE, Tampa, FL, Employer 

__________________________________________ 

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Docket No. 15-0666 

Issued: August 14, 2015 

Appearances: Case Submitted on the Record

Lenin V. Perez, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 9, 2015 appellant, through his representative, filed a timely appeal from a 

January 23, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

Because more than 180 days has elapsed from the last merit decision dated April 30, 2013 to the 

filing of this appeal, and pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of his claim. 

ISSUE 

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

was untimely filed and failed to establish clear evidence of error. 

FACTUAL HISTORY 

On October 4, 2012 appellant, then a 56-year-old letter carrier, filed an occupational 

disease claim alleging that he developed pain in his neck, both shoulders, and arms due to his 

 1

 5 U.S.C. § 8101 et seq. 
2

employment duties. He described his employment duties of casing mail and parcels weighing up 

to 70 pounds. Appellant noted that his route had 626 deliveries and that he performed 

dismounted deliveries from his postal vehicle for a portion of his route. He also parked his 

vehicle to walk and deliver mail from a satchel weighing up to 35 pounds for 55 residential 

deliveries. 

On September 19, 2012 Dr. Samy F. Bishai, a Board-certified orthopedic surgeon, 

examined appellant due to pain in his shoulders bilaterally, worse on the left, stiffness in the left 

shoulder, and difficulty lifting the left arm. He noted that appellant initially sought treatment 

from another physician who found tenderness in appellant’s left shoulder with marked limitation 

in range of motion. Dr. Bishai reviewed a magnetic resonance imaging (MRI) scan which 

demonstrated subluxation of the humeral head with bone contusions and chondromalacia at the 

posterior glenoid. He found complex tears of the glenoid labrum and hypertrophic changes at the 

acromioclavicular joint and supraspinatus tendinopathy. Dr. Bishai diagnosed internal 

derangement of the left shoulder with chondromalacia and impingement syndrome. He opined 

that appellant’s left shoulder condition was the result of his employment activities and listed 

those activities. Dr. Bishai stated that lifting of mail and parcels as well as casing, delivery, and 

carrying of the satchel combined together to cause appellant’s left shoulder condition. 

In a letter dated October 18, 2012, OWCP requested additional factual information from 

appellant. It also requested additional medical evidence and allowed appellant 30 days to 

respond. 

By decision dated November 26, 2012, OWCP denied appellant’s claim finding that he 

failed to submit the necessary medical opinion evidence to establish a causal relationship 

between his diagnosed condition and his implicated employment duties. Appellant requested an 

oral hearing from OWCP’s Branch of Hearings and Review. 

On January 12, 2012 appellant underwent an MRI scan of the left shoulder which 

demonstrated subluxation of the humeral head with bone contusions, chondromalacia, complex 

tears of the posterior labrum extending into the superior and inferior labrums, changes at the 

acromioclavicular joint, supraspinatus tendinopathy, joint effusion, and possible glenohumeral 

instability lesions. 

Appellant submitted reports from Dr. Bishai dated October 11, November 16, and 

December 20, 2012 repeating his earlier findings and diagnoses. Beginning on November 16, 

2012 Dr. Bishai stated that appellant was using his right shoulder and arm more since his left 

shoulder was disabled and impaired resulting in a consequential injury to the right shoulder. He 

also found that appellant had loss of range of motion in the right shoulder and diagnosed internal 

derangement of the right shoulder joint and rotator cuff syndrome of the right shoulder. On 

February 27, 2013 Dr. Bishai stated that appellant’s condition was the same. On March 14, 2013 

he noted that appellant reported pain in his neck with radiation down the shoulders and arms and 

diagnosed the additional condition of cervical disc syndrome with radiculopathy. 

Appellant testified at the oral hearing on March 14, 2013 and stated that his neck and 

shoulders began to bother him in July 2009 and progressively worsened. He stated that he first 
3

received treatment for his left shoulder in January 2012. Appellant testified that he injured his 

right shoulder in 2007 and sought treatment from a chiropractor. 

OWCP’s hearing representative denied appellant’s claim by decision dated 

April 30, 2013. He found that appellant had not submitted the medical evidence requested 

regarding his history of treatment. The hearing representative noted that appellant reported a 

shoulder condition arising in 2007 and that there were no medical records regarding this injury in 

the record. He found that Dr. Bishai’s reports were not based on an accurate history of injury 

and that appellant had not established that his neck, bilateral arm, and shoulder conditions were 

related to his employment duties. 

In a report dated April 24, 2013, Dr. Bishai stated that he reviewed nerve conduction 

studies on March 21, 2013 which suggested entrapment neuropathy at the right elbow as well as 

carpal tunnel syndrome. He also reviewed a cervical MRI scan and found disc bulges at C4-5, 

C5-6, and C7-T1. On June 18, 2013 Dr. Bishai disagreed with an OWCP hearing 

representative’s findings and conclusions. He repeated his previous diagnoses. Dr. Bishai 

opined that appellant’s left shoulder condition was directly caused by his work activities as a 

letter carrier. He noted that appellant’s right shoulder condition was a consequential injury 

resulting from overuse due to the pain in appellant’s left shoulder. Dr. Bishai stated that he had 

reviewed appellant’s prior medical treatment with an orthopedic surgeon on February 23, 

December 12 and 22, 2012. He stated that appellant’s shoulder condition could be improved by 

arthroscopic surgery. Dr. Bishai also opined that it was not necessary to review appellant’s right 

shoulder treatment records from 2007. He stated that he was aware that appellant had 

experienced his left shoulder condition for years, but that appellant had recently determined that 

medical treatment was necessary. 

Dr. Claude Barosy, a family practitioner, examined appellant on August 6, 2013 and 

reported his complaints of left shoulder, head, and neck pain. He found loss of range of motion 

of the cervical spine and left shoulder. Dr. Barosy diagnosed cervical disc disease with 

radiculopathy, cervical disc syndrome, internal derangement of the left shoulder joint, and left 

shoulder impingement syndrome. 

Appellant’s representative submitted a motion to reconsider dated January 14, 2014 and 

received by OWCP on January 21, 2014. He also submitted a medical report dated 

December 19, 2013 from Dr. Bishai. In this report, Dr. Bishai again opined that appellant’s 

conditions were work related. 

Dr. Eduardo L. Gonzalez, a Board-certified practitioner, examined appellant on 

March 12, 2014 due to neck and bilateral shoulder pain. He opined that appellant’s left shoulder 

symptoms were produced as part of his work as a letter carrier. 

On April 4, 2014 Dr. Robert R. Reppy, an osteopath, stated that appellant’s right shoulder 

pain had mostly resolved. He stated that appellant’s neck pain contributed to headaches with 

nausea. 

In a letter dated January 14, 2015, appellant’s representative stated that he requested 

reconsideration on January 14, 2014 of the April 30, 2013 merit decision. He included a copy of 
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a motion to reconsider dated January 14, 2014 which referenced the December 19, 2013 report 

from Dr. Bishai. 

By decision dated January 23, 2015, OWCP denied appellant’s request for 

reconsideration, finding that it was untimely filed and did not establish clear evidence of error. 

LEGAL PRECEDENT 

Section 8128(a) of FECA2

 does not entitled a claimant to a review of an OWCP decision 

as a matter of right.3 This section vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation.4

 OWCP, through regulations, has imposed 

limitations on the exercise of its discretionary authority. One such limitation is that it will not 

review a decision denying or terminating a benefit unless the application for review is received 

within one year of the date of that decision.5

 The Board has found that the imposition of this 

one-year time limitation does not constitute an abuse of the discretionary authority granted 

OWCP under 5 U.S.C. § 8128(a).6

In those cases where requests for reconsideration are not timely filed, the Board has held 

that OWCP must nevertheless undertake a limited review of the case to determine whether there 

is clear evidence of error pursuant to the untimely request.7 OWCP procedures state that OWCP 

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

forth in its regulations, if the claimant’s request for reconsideration shows “clear evidence of 

error” on the part of OWCP.8

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

which was decided by OWCP.9 The evidence must be positive, precise and explicit and must be 

manifest on its face that it committed an error.10 Evidence which does not raise a substantial 

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

evidence of error.11 It is not enough merely to show that the evidence could be construed so as to 

 2 Id. at § 8128(a). 

3 Thankamma Mathews, 44 ECAB 765, 768 (1993). 

4 Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990). 

5

 20 C.F.R. § 10.607(a). The Board has concurred in OWCP’s limitation of its discretionary authority. See 

Gregory Griffin, 41 ECAB 186 (1989); petition for recon. denied, 41 ECAB 458 (1990). 

6 Supra note 3 at 769; Jesus D. Sanchez, supra note 4 at 967. 

7 Supra note 3 at 770. 

8 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011). 

9 Supra note 3 at 770. 

10 Leona N. Travis, 43 ECAB 227, 241 (1991). 

11 Jesus D. Sanchez, supra note 4 at 968. 
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produce a contrary conclusion.12 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 it.13 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 

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 The Board must make an independent determination of 

whether a claimant has submitted clear evidence of error on the part of OWCP such that OWCP 

abused its discretion in denying merit review in the face of such evidence. 

ANALYSIS 

Appellant had one year from April 30, 2013 to make a timely request for reconsideration. 

Appellant, through his representative, requested reconsideration through a document entitled 

motion for reconsideration which was dated January 14, 2014 and which was received by OWCP 

on January 21, 2014. The request for reconsideration was received by OWCP on January 21, 

2014 within one year after the April 30, 2013 decision. OWCP incorrectly found that appellant’s 

request for reconsideration was untimely on its face. It erroneously reviewed the evidence 

submitted by appellant in support of her reconsideration request under the clear evidence of error 

standard for untimely requests. The Board remands the case to OWCP for review of this 

evidence under the proper standard of review for a timely request for reconsideration. 

CONCLUSION 

The Board finds that the evidence in the record establishes that appellant’s representative 

submitted a timely request for reconsideration and that the evidence must be reviewed by OWCP 

under the proper standard of review. 

 12 Supra note 10. 

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

14 Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989). 
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ORDER 

IT IS HEREBY ORDERED THAT the January 23, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board. 

Issued: August 14, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board