United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Santa Ana, CA, Employer 

__________________________________________ 

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Docket No. 15-540 

Issued: April 22, 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 20, 2015 appellant filed a timely appeal of an August 26, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for 

reconsideration as untimely and insufficient to show clear evidence of error. As more than 180 

days has elapsed between the last merit decision of May 24, 20131

 and the filing of this appeal. 

The Board lacks jurisdiction to review the merits of appellant’s claim pursuant to the Federal 

Employee’s Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3. 

ISSUE 

The issue is whether OWCP properly found appellant’s application for reconsideration 

was untimely and failed to show clear evidence of error. 

 1

 The last merit decision was an OWCP decision dated May 24, 2013. For final adverse OWCP decisions issued 

on or after November 19, 2008, a claimant has 180 days to file an appeal with the Board. 20 C.F.R. § 501.3(e). 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On October 29, 2012 appellant, then a 48-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on October 23, 2012 he sustained a back injury while lifting a 

heavy parcel in the performance of duty. The reverse of the claim form indicated that he 

returned to work on October 24, 2012. In a report dated December 28, 2012, Dr. Luis Rivera, a 

surgeon, stated that at the time of the October 23, 2012 incident appellant felt pain in his low 

back. According to Dr. Rivera, a few days later, appellant noticed swelling to the right groin, 

and progressively experienced more pain and swelling to the right groin. He indicated that 

appellant did not have a prior history of a hernia, and the lumbosacral sprain and hernia could be 

explained from the October 23, 2012 injury. 

OWCP accepted the claim on January 29, 2013 for lumbar and right groin strain. 

Appellant filed claims for compensation (Form CA-7) commencing February 9, 2013. 

In a report dated February 11, 2013, Dr. Rivera stated that appellant was three weeks post 

hernia surgery. He stated that appellant continued to have low back complaints and x-rays 

showed L5-S1 narrowing. Dr. Rivera indicated that appellant could work modified duties and 

completed an OWCP-5c work restriction form that included a 10-pound lifting restriction. 

By letter dated April 15, 2013, OWCP indicated that appellant would receive wage-loss 

compensation as of February 9, 2013. In a letter dated April 16, 2013, it advised him to 

disregard the prior letter. Appellant was advised to submit additional medical evidence to 

establish an employment-related period of disability. 

In a report dated April 29, 2013, Dr. Rivera noted that appellant had suffered a work 

injury on October 23, 2012. He reported that the initial diagnosis was lumbar and right groin 

strain, but the right groin did not improve and appellant was diagnosed with a right inguinal 

hernia. According to Dr. Rivera, appellant went to his private physician and surgery was 

performed. Dr. Rivera opined that appellant could now return to regular duty. 

By decision dated May 24, 2013, OWCP denied the claim for wage-loss compensation 

commencing February 9, 2013. It found the medical evidence insufficient to establish an 

employment-related disability during the period claimed. 

In a letter dated May 4, 2014, but received by OWCP on May 28, 2014, appellant 

requested reconsideration of his claim. He discussed the development of his claim and the 

evidence submitted. Appellant stated that his hernia was related to the October 23, 2012 injury 

and that he asserts his claim for wage-loss compensation should have been accepted. He 

questioned whether there was any missing medical documentation, and stated that his address 

was misspelled.3

 Appellant concluded that the claim had caused stress and financial difficulties. 

By decision dated August 26, 2014, OWCP denied appellant’s application for 

reconsideration as it was untimely and failed to show clear evidence of error. 

 3

 Appellant’s physician, Dr. Rivera, appeared to have misspelled appellant’s home address in his reports. The 

decisions and documents from OWCP provide an accurate address of record. 
3

LEGAL PRECEDENT 

FECA provides that OWCP may review an award for or against compensation upon 

application by an employee (or his or her representative) who receives an adverse decision.4

 The 

employee shall exercise this right through a request to the district office. The request, along with 

the supporting statements and evidence, is called the “application for reconsideration.”5

According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP 

decision as a matter of right.6

 This section vests OWCP with discretionary authority to 

determine whether it will review an award for or against compensation.7

 OWCP, through 

regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. 

§ 8128(a) of FECA.8

 One such limitation, 20 C.F.R. § 10.607 provides that an application for 

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

review is sought.9

 According to OWCP procedures, the received date is determined by the 

document received date in the Integrated Federal Employees’ Compensation System (IFECS).10 

OWCP will consider an untimely application only if the application demonstrates clear 

evidence of error on the part of its most recent merit decision. The evidence must be positive, 

precise, explicit, and must manifest on its face that OWCP committed an error.11 

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 sufficiently 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.12 Evidence that does 

not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to 

establish clear evidence of error.13 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.14 A determination of whether the claimant has 

 4

 5 U.S.C. § 8128(a). 

5

 20 C.F.R. § 10.605 (2012). 

6 Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

7

 Under section 8128 of FECA, “[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.” 

8

 5 U.S.C. §§ 8101-8193. 

9

 20 C.F.R. § 10.607 (2012). 

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011). This 

section provides that for decisions prior to August 29, 2011, the application for reconsideration must be mailed 

within one year. 

11 D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005). 

12 Annie L. Billingsley, 50 ECAB 210 (1998). 

13 Jimmy L. Day, 48 ECAB 652 (1997). 

14 Id. 
4

established clear evidence of error entails a limited review of how the evidence submitted with 

the reconsideration request bears on the evidence previously of record.15

ANALYSIS 

In the present case, OWCP’s last merit decision for wage-loss compensation was dated 

May 24, 2013. Appellant had one year from that date to timely submit an application for 

reconsideration. As noted above, the date of filing is the date it is received by OWCP. In this 

case May 24, 2014 fell on a Saturday. If the last day of the one-year time period falls on a 

Saturday, Sunday, or a legal holiday, the claimant has until the next business day to timely 

request reconsideration.16 As Monday, May 26, 2014 was a legal holiday, the one-year period 

was extended until Tuesday, May 27, 2014. According to the record, the application for 

reconsideration was received by OWCP and entered into the IFECS system on May 28, 2014. It 

was, therefore, an untimely application for reconsideration. 

As an untimely application for reconsideration, appellant must show clear evidence of 

error by OWCP with respect to the denial of his wage-loss compensation claim. Appellant 

reviewed his claim and the evidence submitted and stated that he felt his hernia was employment 

related. He noted that he had received a letter stating that he was going to receive compensation 

and then the next day his compensation was taken away. Appellant stated that he had undergone 

stress and financial difficulties as a result of the actions on his claim for compensation. 

As noted above, even if the evidence could be construed be produce a result contrary to 

the conclusion drawn by OWCP, it is not enough to establish clear evidence of error. There must 

be evidence of such probative value that it is sufficient 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. 

Appellant did not meet that standard in this case. OWCP denied the claim for wage-loss 

compensation commencing February 9, 2013 on the grounds that the medical evidence was 

insufficient to establish the period of disability claimed. Appellant has expressed his 

disagreement with OWCP’s finding, but has not established clear evidence of error. As to a 

mailing address, the decisions and OWCP documents of record contain appellant’s address of 

record. There was no evidence of error with respect to the issuance of an OWCP decision. 

The Board accordingly finds that appellant’s application for reconsideration was untimely 

and failed to show clear evidence of error. OWCP properly denied the application for 

reconsideration in this case. 

On appeal, appellant submitted a statement reiterating his arguments in the application 

for reconsideration submitted to OWCP. He also submitted additional evidence. The Board 

cannot consider any evidence that was not before OWCP at the time of the decision on appeal.17 

 15 K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010). 

16 See Debra McDavid, 57 ECAB 149 (2005); see also M.A., Docket No. 13-1783 (issued January 2, 2014). 

17 20 C.F.R. § 501.2(c)(1). 
5

The Board considered the evidence of record as of August 26, 2014. For the reasons noted 

above, OWCP properly denied appellant’s application for reconsideration. 

CONCLUSION 

The Board finds OWCP properly found appellant’s application for reconsideration was 

untimely and failed to show clear evidence of error. 

ORDER 

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

Compensation Programs dated August 26, 2014 is affirmed. 

Issued: April 22, 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