United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tampa, FL, Employer 

__________________________________________ 

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Docket No. 14-1968 

Issued: July 24, 2015 

Appearances: Case Submitted on the Record

Wayne Johnson, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On September 9, 2014 appellant, through counsel, filed a timely appeal of a March 14, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1 Because 

more than 180 days elapsed from the most recent OWCP merit decision dated February 28, 2013 

to the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim 

pursuant to the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3. 

                                                             1

 On March 3, 2015 the Board issued an order dismissing appeal in the above entitled case. The Board found that 

the record did not contain a March 14, 2014 decision. The Board determined that the most recent decision contained 

in the record was the February 28, 2013 merit decision and therefore, the appeal was not filed within 180 days from 

the date of issuance of OWCP’s most recent decision. 20 C.F.R. § 501.3(e). On April 1, 2015 appellant, through 

counsel, filed a petition for reconsideration. Counsel provided a copy of OWCP’s March 14, 2014 decision. On 

May 5, 2015 the Director of OWCP filed an answer to the petition for reconsideration. He determined that the 

March 14, 2014 decision was issued but was “inadvertently omitted from iFECS.” The Director requested that the 

Board rule justly on the petition. On July 8, 2015 the Board issued an order granting the petition for reconsideration 

and reinstating the appeal. 

2

 5 U.S.C. §§ 8101-8193. 
2

ISSUE 

The issue is whether OWCP properly determined that appellant’s request for 

reconsideration was untimely filed and failed to present clear evidence of error. 

FACTUAL HISTORY 

On June 18, 2012 appellant, then a 32-year-old rural carrier, filed an occupational disease 

claim alleging that repetitive work duties, which included lifting packages and twisting in her 

truck to place mail in mailboxes, caused her upper and lower back pain. She stopped work on 

May 22, 2012. The employing establishment claimed it was not notified about the injury until 

June 18, 2012. 

In a July 31, 2012 decision, after development, OWCP denied appellant’s claim finding 

that she had submitted insufficient medical evidence explaining how work factors caused or 

contributed to a diagnosed medical condition. 

On August 8, 2012 appellant submitted additional evidence and requested a telephonic 

hearing, which was held on December 17, 2012. During the hearing, she testified that she had 

worked for more than seven years as a rural carrier and detailed the repetitive duties of her 

position, which included, sorting and preparing the mail for delivery, and twisting, bending, and 

stooping while delivering mail. 

By decision dated February 28, 2013, an OWCP hearing representative affirmed the 

July 31, 2012 decision denying the claim. He noted that appellant had not presented any medical 

evidence which contained a discussion, opinion, or conclusion from an examining physician 

which addressed the identified work factors and explained how the employment duties caused or 

aggravated the diagnosed conditions by direct cause or aggravation. 

Appellant’s representative requested reconsideration, by letter dated February 27, 2014, 

but not received until March 11, 2014. In support of the request, appellant submitted reports 

from Dr. Brian Patterson, Board-certified in family medicine. 

In a March 14, 2014 decision, OWCP denied appellant’s request for reconsideration, 

finding that it was untimely filed within one year of the last merit decision, February 28, 2013, 

and failed to present clear evidence of error. 
3

LEGAL PRECEDENT 

Section 8128(a) of FECA3 vests OWCP with discretionary authority to determine 

whether it will review an award for or against compensation: 

“The Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. The Secretary, in 

accordance with the facts found on review may -- 

(1) end, decrease, or increase the compensation awarded; or 

(2) award compensation previously refused or discontinued.”4

OWCP’s imposition of a one-year time limitation within which to file an application for 

review as part of the requirements for obtaining a merit review does not constitute an abuse of 

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

 This section does not mandate 

that OWCP review a final decision simply upon request by a claimant. 

OWCP, through regulations, has imposed limitations on the exercise of its discretionary 

authority under section 8128(a). Thus, section 10.607(a) of the implementing regulations 

provide that an application for reconsideration must be received within one year of the date of 

OWCP’s decision for which review is sought.6

Section 10.607(b) states that OWCP will consider an untimely application for 

reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit 

decision. The reconsideration request must establish that OWCP’s decision was, on its face, 

erroneous.7

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

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

manifest on its face that OWCP committed an error. Evidence that does not raise a substantial 

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

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

produce a contrary conclusion. 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.8

 To show clear 

                                                             3

 5 U.S.C. §§ 8101-8193. 

4

 5 U.S.C. § 8128(a). 

5 Diane Matchem, 48 ECAB 532, 533 (1997); citing Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 

6

 20 C.F.R. § 10.607(a) (2012). 

7 Id. at § 10.607(b). 

8 Steven J. Gundersen, 53 ECAB 252, 254-55 (2001). 
4

evidence of error, the evidence submitted must not only be of sufficient probative value to create 

a conflict in the 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. The Board makes 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.9

ANALYSIS 

The Board finds that appellant filed an untimely request for reconsideration. The last 

OWCP merit decision in this case was issued on February 28, 2013. The reconsideration request 

was not received until March 11, 2014. While the reconsideration request was dated 

February 27, 2014, OWCP regulations specify that an application for reconsideration must be 

received within one year of the date of OWCP’s decision for which review is sought.10 Because 

more than one year elapsed from February 28, 2013 to March 11, 2014, the date on which the 

reconsideration request was received, OWCP properly determined that the reconsideration 

request was untimely filed. 

The Board finds that the evidence submitted by appellant in support of her application for 

review does not raise a substantial question as to the correctness of OWCP’s most recent merit 

decision and is insufficient to demonstrate clear evidence of error. The critical issue in this case 

is whether appellant has shown clear evidence of error with respect to the underlying merit 

decision, which found that appellant did not meet her burden of proof to establish that she 

sustained an occupational disease in the performance of duty. 

With his request for reconsideration, counsel submitted new medical reports from 

Dr. Patterson and MRI scan reports for the cervical and lumbar spine which did not address 

whether appellant’s employment caused any particular condition. Dr. Patterson noted 

appellant’s history, status, and opined that appellant had thoracic and lumbar sprain/strain 

injuries that were within a reasonable degree of medical certainty causally related to repetitive 

work activities such as lifting and twisting, bending, and stooping. The Board finds that this 

evidence is insufficient to show that OWCP’s denial of the claim was erroneous or raise a 

substantial question as to the correctness of OWCP’s determination that appellant did not meet 

her burden of proof to establish that she sustained an occupational disease in the performance of 

duty. While these reports offer some support for causal relationship, the Board has held that the 

term “clear evidence of error” is intended to represent a difficult standard. The claimant must 

present evidence which on its face shows that OWCP made an error (for example, proof of a 

miscalculation in a schedule award). Evidence such as a detailed, well-rationalized report, which 

if submitted prior to OWCP’s denial, would have created a conflict in medical opinion requiring 

further development, is not clear evidence of error and would not require a review of a case.11 

The Board finds that this medical evidence is insufficient to shift the weight of the evidence in 

favor of appellant’s claim or raise a substantial question that OWCP erred in denying her claim. 

                                                             9 Id.

10 See supra note 6. 

11 D.G., 59 ECAB 455 (2008). 
5

Therefore, the Board finds that appellant has not presented clear evidence of error. 

On appeal, counsel for appellant argues that appellant’s request for reconsideration was 

timely filed. However, as determined above, the request was not timely.12 Counsel also made 

arguments on appeal pertaining to the merits of the claim. However, as noted, the Board does 

not have jurisdiction over the merits of the claim. 

CONCLUSION 

The Board finds that OWCP properly determined that appellant’s request for 

reconsideration was not timely filed and failed to present clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the March 14, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 24, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

                                                             12 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, 2.1602.4(b). The date the 

reconsideration request was scanned into iFECS was March 11, 2014.