United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.R., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

North Houston, TX, Employer 

__________________________________________ 

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Docket No. 13-2054 

Issued: March 10, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On September 5, 2013 appellant filed a timely appeal from an April 30, 2013 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying her untimely 

request for reconsideration. As the last merit decision, dated March 9, 2007, concerning the 

termination of compensation benefits was that of this Board’s and, as OWCP has not further 

reviewed this issue, the subject matter is res judicata and is not subject to further review by the 

Board on the current appeal.1

 Pursuant to the Federal Employees’ Compensation Act2 (FECA) 

and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction to review the merits of 

the April 30, 2013 decision. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration on 

the grounds that it was not timely filed and did not demonstrate clear evidence of error. 

 1 See Clinton E. Anthony, Jr., 49 ECAB 476 (1998). 

2

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

This case has previously been before the Board. By decision dated March 9, 2007, the 

Board affirmed a February 24, 2006 decision by an OWCP hearing representative affirming an 

October 14, 2005 decision terminating appellant’s compensation benefits.3 In affirming the 

February 24, 2006 OWCP decision, the Board found that the June 7, 2005 opinion of 

Dr. David G. Vanderweide, a second opinion Board-certified orthopedic surgeon, constituted the 

weight of the evidence and was sufficiently rationalized to support OWCP’s decision terminating 

her compensation benefits. In affirming OWCP’s June 2, 2006 decision denying 

reconsideration, the Board found that, while appellant advised in a May 4, 2006 letter that she 

was submitting a medical report, no report was received prior to OWCP’s June 2, 2006 decision. 

The facts and circumstances surrounding the prior appeal are hereby incorporated by reference.4

On June 9, 2011 appellant’s then counsel requested reconsideration and expansion of her 

claim to include left medial meniscus tear. On March 21 and April 15, 2013 OWCP again 

received the June 9, 2011 letter requesting reconsideration. Appellant’s then counsel argued that 

the March 9, 2007 decision was based on erroneous information when it stated that OWCP had 

not approved a left knee partial meniscectomy on June 23, 2003. She argued that in view of the 

fact that OWCP had authorized this surgery, that it had accepted this condition, but failed to 

include it in the list of accepted conditions. In support of her request for reconsideration, 

appellant submitted medical and factual evidence including a June 23, 2003 hospital report. 

By decision dated April 30, 2013, OWCP denied appellant’s request for reconsideration 

as it was untimely filed and failed to establish clear evidence of error. It noted that the record 

contained no evidence that the June 23, 2003 surgery had been authorized by OWCP. 

LEGAL PRECEDENT 

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

claimant must file his or her application for review within one year of the date of that decision.5

 

The Board has found that the imposition of the one-year time limitation does not constitute an 

abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.6

OWCP, however, may not deny an application for review solely on the grounds that the 

application was not timely filed. When an application for review is not timely filed, it must 

 3

 Docket No. 06-1568 (issued March 9, 2007). 

4

 On November 17, 2002 appellant, then a 39-year-old clerk, filed a traumatic injury claim alleging that on that 

date she sustained a left knee and leg injury when a coworker hit her with an all-purpose container. OWCP accepted 

the claim for left knee strain/sprain, left thigh and left leg contusion. Subsequently, it accepted chondromalacia. 

Appellant stopped work on November 17, 2002, returned to work on March 10, 2004 and stopped on 

March 11, 2004. OWCP placed her on the periodic rolls for temporary total disability effective March 23, 2004. By 

decision dated September 4, 2008, OWCP’s hearing representative granted appellant’s request for wavier of 

recovery of an overpayment in the amount of $1,992.48. 

5

 20 C.F.R. § 10.607(a). 

6

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 
3

nevertheless undertake a limited review to determine whether the application establishes clear 

evidence of error.7 OWCP regulations and procedures provide that OWCP 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

OWCP procedures were changed effective August 29, 2011. Section 10.607 of the new 

regulations provide that the date of the reconsideration request for timeliness purposes was 

changed from the date the request was mailed to the date the request was received by OWCP.15

ANALYSIS 

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

application for review. The last merit decision, dated March 9, 2007, affirmed an OWCP 

hearing representative’s February 24, 2006 decision, which in turn affirmed an October 14, 2005 

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

8 Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) 

(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. Id.. 

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 6. 

15 20 C.F.R. § 10.607. 
4

OWCP decision terminating appellant’s compensation benefits.16 OWCP received appellant’s 

request for reconsideration on March 20, 2013; thus, the request was outside the one-year time 

limit.17 Consequently, appellant must demonstrate clear evidence of error by OWCP in 

terminating her compensation.18 

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

reconsideration does not raise a substantial question as to the correctness of the termination 

decision or shift the weight of the evidence of record in her favor. OWCP terminated her wageloss benefits effective October 30, 2005 based on the opinion of Dr. Vanderweide, a second 

opinion Board-certified orthopedic surgeon, who concluded that she no longer had any residuals 

or disability due to her accepted employment injuries. An OWCP hearing representative 

affirmed the termination of appellant’s compensation on February 24, 2005, which the Board 

affirmed in a March 9, 2007 decision. 

On reconsideration, appellant has presented insufficient evidence to establish that OWCP 

improperly terminated her compensation benefits. In order to establish clear evidence of error, a 

claimant must submit evidence relevant to the issue which was decided by OWCP.19 Appellant 

argues that OWCP erred in terminating her compensation as she continues to have residuals from 

her left medial meniscus tear. She claims that it accepted this condition as it authorized surgery 

for left knee partial meniscectomy on June 23, 2003. Contrary to appellant’s contention, the 

record contains no evidence that OWCP authorized this surgery or paid for it. Even if the 

surgery had been paid for by OWCP, there is no evidence that it had accepted the condition of 

left knee meniscal tear as being caused by the accepted November 17, 2002 employment 

injury.20 The evidence submitted by appellant is insufficient to raise a substantial question as to 

the correctness of the last merit decision. Appellant has not established clear evidence of error. 

On appeal, appellant contends that OWCP erred in denying her request for 

reconsideration as she continues to have residuals of her accepted employment injury and denied 

medical treatment. As discussed above, she failed to timely file a request for reconsideration and 

failed to establish clear evidence of error. Appellant submitted no evidence raising a substantial 

question as to the correctness of OWCP’s termination of her compensation benefits effective 

October 30, 2005. 

 16 The record also contains a September 4, 2008 OWCP hearing representative’s decision granter waiver on 

recovery of an overpayment. 

17 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602(e)(6) 

(August 2011). For decisions issued on or after August 29, 2011, there is still a one-year time limit for requesting 

reconsideration. The one-year period begins on the date of the original decision and the application for 

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

18 20 C.F.R. § 10.607(a); see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 149 (2005). 

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

20 The Board has held that payment for medical expenses does not, in and of itself, constitute acceptance of a 

particular condition or disability in the absence of evidence indicating that a particular condition or disability has 

been accepted as work related. Gary L. Whitmore, 43 ECAB 441 (1992); see also M.C., Docket No. 12-64 (issued 

May 10, 2012). 
5

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration on 

the grounds as it was not timely filed and did not demonstrate clear evidence of error. 

ORDER 

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

Compensation Programs dated April 30, 2013 is affirmed. 

Issued: March 10, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board