United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Fairfax, VA, Employer 

__________________________________________ 

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Docket No. 14-1281 

Issued: November 6, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

On May 12, 2014 appellant timely appealed the April 15, 2014 nonmerit decision of the 

Office of Workers’ Compensation Programs (OWCP).1 

Appellant, a 58-year-old rural carrier, has an accepted claim for contusion of the ribs and 

aggravation of sciatica, which arose on November 29, 2005.2 She worked in a limited-duty 

capacity for several years following her November 2005 employment injury. In mid-July 2008, 

appellant stopped work entirely. She received continuation of pay from August 2 through 

December 19, 2008. Appellant then filed a notice of recurrence (Form CA-2a) of disability for 

lost wages beginning December 20, 2008. 

In an April 16, 2009 decision, OWCP denied appellant’s claim for recurrence of 

disability beginning December 20, 2008. It found that the medical evidence failed to 

demonstrate a relationship between her recent work stoppage and her November 29, 2005 

 1

 The latest merit decision is dated October 6, 2010, which is more than three years prior to the filing of the 

instant appeal. Pursuant to the Federal Employees’ Compensation Act (FECA), 5 U.S.C. §§ 8101-8193 and 20 

C.F.R. §§ 501.2(c), 501.3, the Board’s jurisdiction extends only to the April 15, 2014 nonmerit decision. 

2

 She was pulling her mail down when a ledge full of mail slipped out and pushed her backwards against the 

metal case. Appellant’s lower back and left arm hit the case. 
2

employment injury. OWCP subsequently denied modification by decisions dated May 27, 2009 

and October 6, 2010. In both instances, it continued to find the medical evidence insufficient to 

establish a causal relationship between appellant’s claimed recurrence of disability and her 

accepted employment injury. 

The record reflects that until March 4, 2011, appellant has been represented by Dean E. 

Wanderer, Esq. By letter received on March 4, 2011 appellant authorized Alan J. Shapiro to 

represent her before OWCP. 

On July 14, 2011 counsel requested reconsideration of the May 27, 2009 decision and 

submitted additional medical evidence not previously considered by OWCP.3

 On 

February 8, 2012 he reminded OWCP of his July 14, 2011 request for reconsideration and asked 

that a decision be rendered. 

On March 23, 2012 OWCP asked appellant to clarify whether Mr. Shapiro represented 

her. Appellant confirmed Mr. Shapiro’s representation by letter dated March 29, 2012, which 

OWCP received on April 9, 2012.4

 

By letter dated April 18, 2012, OWCP acknowledged Mr. Shapiro as appellant’s 

authorized representative. However, it did not address the July 14, 2011 request for 

reconsideration. 

On January 15, 2013 counsel again reminded OWCP of the pending request for 

reconsideration he filed on July 14, 2011. OWCP took no action in response to his 

January 15, 2013 correspondence. 

On January 17, 2014 counsel asked OWCP to immediately process the request for 

reconsideration filed on July 11, 2011. He noted that he previously submitted follow-up requests 

on February 8, 2012 and January 15, 2013, but OWCP had yet to provide him with a decision or 

a response. With his latest reminder, counsel resubmitted Dr. Ghazal March 21, 2011 report. 

On February 12, 2014 OWCP acknowledged receipt of appellant’s “petition dated 

[January 17, 2014] requesting reconsideration....” 

By decision dated April 15, 2014, OWCP denied reconsideration of its October 6, 2010 

merit decision. It noted it received counsel’s letter on January 21, 2014, which was more than a 

year after the October 6, 2010 decision. Consequently, OWCP considered the request untimely. 

It also found that appellant had not established clear evidence of error.5

 3

 Counsel submitted a March 21, 2011 report from Dr. Talal M. Ghazal, a Board-certified anesthesiologist with a 

subspecialty in pain medicine. 

4

 OWCP also received an April 2, 2012 letter from appellant’s prior counsel, Mr. Wanderer advising that he no 

longer represented her. 

5

 The Board notes that OWCP’s April 15, 2014 decision did not reference any evidence received since the 

October 16, 2010 decision, including Dr. Ghazal’s March 21, 2011 report. 
3

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.6 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.7 One such limitation is that the application for 

reconsideration must be received by OWCP within one year of the date of the decision for which 

review is sought.8 When a request for reconsideration is untimely, OWCP will undertake a 

limited review to determine whether the application presents clear evidence of error on the part 

of OWCP in its most recent merit decision.9

Contrary to OWCP’s finding, appellant timely requested reconsideration on 

July 14, 2011, which OWCP received on July 18, 2011. At the time, counsel also submitted 

additional medical evidence not previously considered by OWCP. The January 17, 2014 

correspondence, which OWCP mischaracterized as a request for reconsideration, was counsel’s 

third reminder to OWCP of the outstanding request for reconsideration filed in July 2011. 

Accordingly, clear evidence of error was not the appropriate standard of review. The case shall 

be remanded to OWCP for proper consideration of appellant’s July 14, 2011 request under 

20 C.F.R. §§ 10.606, 10.608 and 10.609.10

 

 6

 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment 

of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a). 

7

 20 C.F.R. § 10.607 (2012). 

8 Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for 

reconsideration must be received by OWCP within one year of the OWCP decision for which review is sought for 

merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.4 (October 2011). Timeliness is determined by the document receipt date of the 

request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’ Compensation 

System. Id. at Chapter 2.1602.4b. 

9 Id. at § 10.607(b). 

10 A timely application for reconsideration, including all supporting documents, must set forth arguments and 

contain evidence that either: (1) shows that OWCP erroneously applied or interpreted a specific point of law; 

(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes relevant and pertinent 

new evidence not previously considered by OWCP. 20 C.F.R. § 10.606(b)(2). When a timely application for 

reconsideration meets at least one of the above-noted requirements, OWCP will reopen the case for merit review and 

determine whether modification of the prior decision is appropriate. 20 C.F.R. §§ 10.608(a) and 10.609. 
4

IT IS HEREBY ORDERED THAT the April 15, 2014 decision of the Office of 

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

consistent with this order. 

Issued: November 6, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board