United States Department of Labor 

Employees’ Compensation Appeals Board 

J.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE 

Albany, NY, Employer 

___________________________________________

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Docket No. 14-1612 

Issued: January 23, 2015 

Appearances: 

Appellant, pro se Case Submitted on the Record 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 14, 2014 appellant filed a timely appeal of a June 12, 2014 nonmerit decision of 

the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ 

Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 and because more than 180 

days elapsed from May 16, 2013, the date of the most recent OWCP merit decision, to July 14, 

2014, the Board lacks jurisdiction to review the merits of the case. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s claim for 

reconsideration of the merits on the grounds that her request was untimely filed and failed to 

demonstrate clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On February 27, 2013 appellant, then a 37-year-old city letter carrier, filed a traumatic 

injury claim alleging that on February 22, 2013 she sustained pain in her left knee while in the 

performance of duty. She stopped work on February 23, 2013. 

In a February 22, 2013 report, Dr. Carsten Stracke, Board-certified in family medicine, 

noted that the history of injury included: “no known injury, acute onset of left knee pain.” He 

responded “yes” with regard to whether there was any history of evidence of concurrent or 

preexisting injury or disease or physical impairment. Dr. Stracke indicated that appellant had a 

left labral tear of the hip one year ago. He provided findings of tenderness over the left medial 

knee. Dr. Stracke stated that x-rays were not indicated. He diagnosed pain in the joint and lower 

leg and advised that appellant had a possible medial meniscus tear. Dr. Stracke responded “yes” 

with regard to whether he believed that the condition was caused or aggravated by an 

employment activity and filled in “walking.” He placed appellant on total disability for the 

period February 22 to 25, 2013. 

On March 19, 2013 appellant filed a notice of recurrence. She alleged that her recurrence 

began on March 12, 2013. Appellant indicated that she returned to work for two days on 

March 11 and 12, 2013 and by the end of the second day she had the same problem with her left 

knee. 

In a letter dated April 16, 2013, OWCP noted that appellant’s claim initially appeared to 

be a minor injury that resulted in minimal or no lost time from work and her claim was 

administratively approved but the merits of the claim had not been formally considered. It 

explained that her claim was now being reopened because she had filed a claim for a recurrence. 

OWCP informed appellant of the type of factual and medical evidence needed to support her 

claim and requested that she submit such evidence within 30 days. 

By decision dated May 16, 2013, OWCP denied appellant’s claim for compensation as 

the evidence was not sufficient to establish that the claimed event occurred as alleged. It further 

found that the medical evidence did not establish that the February 22, 2013 employment 

incident caused an injury.2

 

On May 21, 2014 appellant requested reconsideration. She noted that, on February 22, 

2013, she was performing her duties as a mail carrier on her assigned route in Albany, New 

York. Appellant’s duties included walking from house to house delivering the mail, climbing 

stairs, and carrying parcels to people’s homes. She indicated that, toward the late morning to 

afternoon, she started to feel pain in her left knee, and as the day progressed, her pain worsened 

and her knee began to swell. Appellant advised that she called her supervisor and informed him 

that she was in a lot of pain and could not continue her deliveries. She explained that she never 

had an injury or pain prior to the incident and that it was actually an occupational disease, as 

described by her physician. Appellant noted that she had worked as a full-time mail carrier for 

8 to 10 hours a day, five days a week for 12 years. She indicated that she always walked many 

 2

 On that same date, OWCP advised appellant that no further action would be taken regarding her claim for a 

recurrence as her claim was denied. 
3

miles up and down stairs, through the snow, and on uneven terrain. Appellant denied engaging 

in any other outside activities, sports or otherwise, with the exception of caring for her two 

children. 

In support of her claim, appellant submitted additional medial evidence. OWCP received 

reports dated March 27 and April 1, 2013 from Dr. James Alfandre, a Board-certified orthopedic 

surgeon. In the duty status report dated March 27, 2013, Dr. Alfandre described the injury as 

occurring by indicating that appellant felt pain in her left knee an hour into her route and it 

worsened throughout the day. In the March 1, 2013 report, he noted that she walked at work and 

over used her knee. Dr. Alfandre’s findings included: edema and pain on flexion to 120 

degrees. He diagnosed chondromalacia of the patella. Dr. Alfandre checked “yes” with regard 

to whether he believed that the condition was caused or aggravated by an employment activity 

and filled in “prolong walking.” He advised that appellant was disabled from March 11 to 

April 8, 2013. Dr. Alfandre provided restrictions to limit walking two hours per day. 

Also submitted was a copy of the February 22, 2013 report from Dr. Stracke. 

Additionally, OWCP also received: physical therapy notes from March 15 to April 15, 2013; 

notes from physician’s assistants; discharge instructions dated February 22, 2013; a letter from 

the employing establishment to appellant; and a May 24, 2013 letter from Travelers Insurance to 

appellant related to its refusal to make a payment with regard to an “unwitnessed fall.” 

In a June 12, 2014 decision, OWCP denied appellant’s request for reconsideration finding 

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

LEGAL PRECEDENT 

Section 8128(a) of FECA 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.”3

 

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).4

 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 

 3

 5 U.S.C. § 8128(a). 

4 Diane Matchem, 48 ECAB 532, 533 (1997); citing Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 
4

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

OWCP decision for which review is sought.5

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.6

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.7

 To show clear 

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 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. 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.8

ANALYSIS 

In its June 12, 2014 decision, OWCP properly determined that appellant failed to file a 

timely application for review. It rendered its last merit decision on May 16, 2013. Appellant’s 

May 21, 2014 letter requesting reconsideration was submitted more than one year after the 

May 16, 2013 merit decision and was, therefore, untimely. 

OWCP properly performed a limited review to determine whether appellant’s untimely 

reconsideration request showed clear evidence of error. It reviewed the additional evidence 

submitted by her in support of her reconsideration request, but found that it did not clearly show 

that OWCP’s prior decision was in error. 

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 decision and is 

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

OWCP on May 16, 2013 properly denied her claim for a traumatic injury on February 27, 2013. 

 5

 20 C.F.R. § 10.607(a). 

6 Id. at § 10.607(b). 

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

8 Id.
5

The issue underlying appellant’s claim is whether the February 22, 2013 employment incident 

occurred at the time, place and in the manner alleged. This is factual in nature. 

On reconsideration, appellant provided a statement describing how she believed her 

injury occurred. She explained that, on February 22, 2013, she was performing her duties as a 

mail carrier on her assigned route in Albany, New York. Appellant described her duties which 

included: walking from house to house delivering the mail, climbing stairs, and carrying parcels 

to people’s homes. She also explained that, toward the late morning to afternoon, she started to 

feel pain in her left knee, and as the day progressed, her pain worsened and her knee started to 

swell. Appellant advised that she called her supervisor and informed him that she was in a lot of 

pain and could not continue her deliveries. She explained that she never had an injury or pain 

prior to the incident and she believed that it was actually an occupational disease, as described by 

her physician.9

 

The Board notes that this statement does not provide positive, precise or explicit evidence 

that manifests on its face that OWCP committed an error. The Board notes that clear evidence of 

error is intended to represent a difficult standard,10 and as noted, it is not enough merely to show 

that the evidence could be construed so as to produce a contrary conclusion. 

The Board also notes that the medical evidence submitted by appellant is not relevant to 

the pertinent issue of whether she has established the occurrence of the February 22, 2013 

employment incident. In order to establish clear evidence of error, a claimant must submit 

evidence relevant to the issue which was decided by OWCP.11 Appellant submitted medical 

reports from Drs. Alfandre and Strack. The submission of medical evidence is insufficient to 

resolve the factual question of whether the February 22, 2013 employment incident occurred at 

the time, place, and in the manner alleged.12

Other documentation provided by appellant does not provide positive, precise or explicit 

evidence that manifests on its face that OWCP committed an error. 

Appellant did not submit any evidence or legal arguments sufficient to raise a substantial 

question as to the correctness of OWCP’s decision. To establish clear evidence of error, the 

evidence submitted must be positive, precise, and explicit and must manifest on its face that 

OWCP committed an error.13 Appellant did not submit such evidence. Consequently, OWCP 

properly denied her reconsideration request as it does not establish clear evidence of error. 

On appeal, appellant asserts that causal relationship was at issue in her case and that she 

had submitted medical evidence supporting that she sustained a work-related injury. However, 

 9

 The Board notes that, if appellant is alleging that she sustained an occupational disease, she may wish to file a 

separate claim for an occupational disease. 

10 See E.R., Docket No. 09-599 (issued June 3, 2009). 

11 Howard Y. Miyashiro, 51 ECAB 253 (1999). 

12 Andrew Fullman, 57 ECAB 574 (2006). 

13 Robert F. Stone, 57 ECAB 292 (2005). 
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as explained, the Board does not have jurisdiction over the merits of the claim. The Board may 

only consider whether the reconsideration request was timely and, if not, whether appellant 

presented clear evidence of error in OWCP’s May 16, 2013 decision. 

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s claim for 

reconsideration of the merits on the grounds that it was untimely filed and failed to show clear 

evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the June 12, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 23, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board