United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.R., Appellant 

and 

U.S. POSTAL SERVICE, WATSON 

COMMUNITY STATION, Fort Worth, TX, 

Employer 

__________________________________________ 

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Docket No. 15-1598 

Issued: December 7, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 July 20, 2015 appellant filed a timely appeal from a June 23, 2015 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP). Because more than 180 days 

elapsed between OWCP’s last merit decision of January 9, 2014 and the filing of this appeal, 

pursuant to the Federal Employee’s Compensation Act1

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

501.3, the Board lacks jurisdiction over the merits of this claim. 

ISSUE 

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

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

On appeal appellant contends that an employment incident caused her to suffer posttraumatic stress disorder (PTSD). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On November 16, 2013 appellant, then a 45-year-old city carrier, filed a traumatic injury 

claim alleging that on November 9, 2013 she suffered a traumatic emotional condition after 

witnessing someone being shot while on her route. In a supporting statement, she explained that 

as she was reviewing mail in the back of her truck a man with a head wound came around the 

corner and informed her that someone was shooting at him and he asked her to call 911. 

Appellant explained that she called 911, that the police arrived within four minutes, and that she 

gave a statement to the police as to what she had seen. She submitted witness statements. The 

employing establishment controverted the claim, alleging that appellant did not qualify for 

continuation of pay because she only assisted the man and did not witness the actual shooting. 

In a November 18, 2013 note, Robert Jackson, a physician assistant, found appellant 

incapacitated from work from November 18 to December 2, 2013. 

In a decision dated January 9, 2014, OWCP denied appellant’s claim. It determined that 

although the evidence established that the incident occurred as described, her claim was denied 

because she failed to submit any medical evidence establishing a diagnosed medical condition 

causally related to the accepted incident. 

On January 23, 2014 appellant submitted a report from the physician assistant, 

Mr. Jackson, in which he noted that she had been seen for PTSD following the shooting incident 

while delivering mail on her assigned route. Mr. Jackson noted that since that episode, even 

thinking about that neighborhood caused her to develop fearfulness, palpitations, sweats, and 

anxiety. He advised that appellant had been prescribed strong medication to take when she had a 

panic attack, but that these medications could affect her judgment and ability to drive safely. 

Mr. Jackson noted that she had been working with her counselor to help her cope with her mood 

disorder and PTSD, but that she remained fearful and anxious to the point of incapacitation. He 

recommended that appellant’s mail route be altered as she had no problems in other areas of her 

route. 

In a January 23, 2014 medical report, Dr. R. Anthony Moore, a Board-certified 

psychiatrist, noted that appellant was delivering mail in a high crime area when she heard shots 

fired and saw a man run at her who had been shot in the head. He noted that she subsequently 

called 911. Appellant described having panic attacks because of flashbacks and recurrent dreams 

since that incident. Dr. Moore diagnosed PTSD secondary to the shooting of November 9, 2013. 

He explained that appellant experienced an event that involved death or serious injury or threat 

of physical integrity to herself or others and that this met the criteria for PTSD. Dr. Moore noted 

that she experienced increased psychological distress in a form of anxiety and panic episodes at 

the thought that the event could happen again. He noted detachment and estrangement from 

others and periods of hypervigilant and startled reactions. 

On February 25, 2014 appellant requested review of the written record by an OWCP 

hearing representative. By decision dated March 27, 2014, OWCP denied her request as it was 

untimely filed and further noted that the case could be equally well addressed by requesting 

reconsideration. 
3

Following the March 27, 2014 decision, appellant submitted March 2014 communication 

from the employing establishment noting that she no longer delivered mail in the area where the 

November 9, 2013 incident occurred and was given a new bid job where she was driving less 

than three hours a day in a totally different area. Dr. Moore was asked whether she could return 

to work. He has found appellant still unable to work due to worsening of her mental state.2 In a 

December 12, 2014 note, Dr. Moore continued work restrictions for her due to her condition of 

PTSD and noted that she continued to experience marked anxiety and panic when it was close to 

nightfall. 

In a June 30, 2014 report, Dr. Moore noted that appellant’s symptoms of PTSD were 

caused by acts of violence which she saw, heard, and felt on the job. He opined, within a 

reasonable degree of medical certainty, that as a direct result of her injury which occurred in the 

performance of duty she sustained PTSD. 

On March 25, 2015 appellant requested that OWCP reconsider her claim. She also filed 

an appeal with the Board on March 27, 2015.3 

By decision dated June 23, 2015, OWCP denied her request for reconsideration because 

it was untimely filed and found that the evidence submitted failed to establish clear evidence of 

error. 

LEGAL PRECEDENT 

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

claimant’s application for review must be received 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 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.6

OWCP, however, may not deny an application for review solely because the application 

was untimely filed. When an application for review is untimely filed, it must nevertheless 

undertake a limited review to determine whether the application establishes clear evidence of 

 2

 Dr. Moore repeatedly used the year 2015 in this note. However, as the note was received by OWCP on 

March 18, 2014, the Board concludes that it was a typographical error and that the year was actually intended to 

be 2014. 

3

 On April 27, 2015 the Board dismissed appellant’s appeal, finding that it was untimely filed. Docket No. 

15-965 (issued April 27, 2015). 

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 D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013). 
4

error.7 OWCP regulations and procedures provide that it will reopen a claimant’s case for merit 

review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the 

claimant’s application for review 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 

manifest on its face that OWCP 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 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 OWCP.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 prima facie 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 

ANALYSIS 

The Board finds that OWCP properly determined that appellant failed to file a timely 

application for reconsideration. As noted, an application for reconsideration must be received 

within one year of the date of OWCP’s decision for which review is sought.15 As appellant’s 

request for reconsideration was not received by OWCP until March 25, 2015, more than one year 

after issuance of the last merit decision on January 9, 2014, it was untimely.16 Consequently, she 

must demonstrate clear evidence of error in OWCP’s January 9, 2014 decision denying her 

claim. 

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

8

 20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 

2.1602.5a (October 2011). OWCP procedures further provide 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 that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized 

medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion 

requiring further development, is not clear evidence of error. See Chapter 2.1602.3c. 

9 See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992). 

10 See Leona N. Travis, 43 ECAB 227, 240 (1991). 

11 See Jesus D. Sanchez, 41 ECAB 964, 968 (1990). 

12 See supra note 10. 

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

14 Leon D. Faidley, Jr., supra note 5. 

15 20 C.F.R. § 10.607(a). 

16 B.W., Docket No. 15-0892 (issued August 26, 2015). 
5

OWCP accepted the November 9, 2013 incident. It had denied appellant’s claim, 

however, because she had failed to establish that she sustained a diagnosed medical condition 

causally related to the accepted employment incident. With her untimely request for 

reconsideration appellant submitted additional medical evidence. The Board must make an 

independent determination as to whether the evidence submitted established clear evidence of 

error in OWCP’s decision denying her claim.17 

In support of appellant’s reconsideration request OWCP received a January 3, 2014 letter 

from Mr. Jackson, a physician assistant. As the underlying issue is medical in nature, 

Mr. Jackson’s reports are of no probative value.18 

OWCP also received several reports from Dr. Moore dating from January 23 to 

June 30, 2014. While Dr. Moore opined that appellant had PTSD caused by the employment 

incident the Board has explained that even a detailed well-rationalized medical report which if 

submitted before the denial was issued would have created a conflict in medical opinion 

requiring further development, is still not sufficient to establish clear evidence of error.19 The 

record evidence must be sufficient to shift the weight of the evidence in favor of appellant. The 

January 23 through June 30, 2014 reports from Dr. Moore do not manifest on their face that 

OWCP committed an error in denying appellant’s traumatic injury claim and thus are insufficient 

to establish clear evidence of error. 

CONCLUSION 

OWCP properly determined that appellant’s request for reconsideration was untimely 

filed pursuant to 20 C.F.R. § 10.607(a) and failed to establish clear evidence of error. 

 17 See D.G., Docket No. 08-137 (April 14, 2008). 

18 See George H. Clark, 56 ECAB 162 (2004); a physician assistant is not a physician as defined by FECA at 

5 U.S.C. § 8101(2) and any report from such individual does not constitute competent medical evidence. 

19 D.G., 59 ECAB 455 (2008). 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated June 23, 2015 is affirmed. 

Issued: December 7, 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