United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Houston, TX, Employer 

__________________________________________ 

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Docket No. 15-1316 

Issued: December 29, 2015 

Appearances: Case Submitted on the Record

Kimberly D. Moss, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 18, 2015 appellant, through counsel, filed a timely appeal from a November 21, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1

 As more 

than 180 days elapsed between the last OWCP merit decision dated February 23, 2011, pursuant 

to the Federal Employees’ Compensation Act2

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

Board lacks jurisdiction over the merits of this case. 

ISSUE 

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

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

 1

 Appellant also filed a timely request for oral argument in this case. By order dated October 16, 2015, the Board 

denied appellant’s request for oral argument as the Board does not have jurisdiction over the merits of the case, and 

oral argument would further delay issuance of a Board decision and not serve a useful purpose. Order Denying 

Request for Oral Argument, Docket No. 15-1316 (issued October 16, 2015). 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On February 22, 2010 appellant, then a 59-year-old transportation supervisor, filed a 

traumatic injury claim alleging injury to his back on February 17, 2010 when the wheel of his 

desk chair rolled into worn tile and jarred his back. OWCP accepted the claim for sprain of 

back, lumbar region.3

On May 25, 2010 appellant filed a Form CA-7, claim for wage-loss compensation, for the 

period April 27 to May 20, 2010. Following further development, by decision dated August 16, 

2010, OWCP denied the wage-loss claim as the evidence of record failed to support that the 

claimed period of disability was due to the accepted work injury. 

On September 1, 2010 OWCP received appellant’s August 23, 2010 request for an oral 

hearing before an OWCP hearing representative. A telephonic hearing was held on December 8, 

2010 and additional medical evidence was received. 

By decision dated February 23, 2011, the OWCP hearing representative affirmed 

OWCP’s August 16, 2010 decision as there was insufficient rationalized medical evidence of 

record to support that appellant’s disability was causally related to the accepted work injury.4

On June 4, 2014 OWCP received a May 28, 2014 request for reconsideration from 

appellant’s counsel.5 Counsel argued that while OWCP’s decision identified a lack of a causal 

connection between appellant’s employment and a personal injury sustained in the performance 

of duty, the evidence supported that a workplace hazard caused appellant’s back injury. 

Furthermore, she argued that appellant’s physicians agreed that appellant’s injury was directly 

related to his employment. Thus, counsel contended that there was clear evidence of error in the 

denial of the wage-loss claim. She further requested that the accepted conditions of appellant’s 

injury be upgraded based on the March 4, 2014 second opinion examination of Dr. Peter J. Yeh, 

a Board-certified neurologist, who indicated that the work-related injury on February 17, 2010 

was identified as a low back sprain, but was in fact a rather more serious condition of herniated 

disc. 

On October 27, 2014 OWCP received appellant’s July 30, 2014 form requesting 

reconsideration. 

By decision dated November 21, 2014, OWCP denied appellant’s reconsideration 

request, finding that it was untimely filed and failed to present clear evidence of error. 

 3

 The record indicates that appellant stopped work on February 18, 2010 and utilized sick leave for his absence. 

4

 Appellant also has an accepted January 23, 2004 claim under file number xxxxxx406, slipped and fell off a 

platform onto the floor injuring his back, tailbone, and neck. 

5

 On March 27, 2014 OWCP acknowledged that Kimberly D. Moss, Esq., was appellant’s authorized counsel. 
3

LEGAL PRECEDENT 

OWCP, through regulations, has imposed limitations on the exercise of its discretionary 

authority under section 8128(a) of FECA. It will not review a decision denying or terminating a 

benefit unless the application for review is received within one year of the date of that decision.6 

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, any denial of modification following 

reconsideration, any merit decision by the Board, and any merit decision following action by the 

Board, but does not include prerecoupment hearing decisions.7 

Its regulations state that OWCP will reopen a claimant’s case for merit review, 

notwithstanding the one-year filing limitation set forth under section 10.607 of OWCP 

regulations, if the claimant’s application for review shows clear evidence of error on the part of 

OWCP.8

 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.9

 

To establish clear evidence of error, a claimant must submit evidence relevant to the issue 

which 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 to merely 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. To show clear 

evidence of error, the evidence submitted must be of sufficient 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.10 

OWCP procedures note 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 

 6

 20 C.F.R. § 10.607(a) (2011). 

7

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

8 Supra note 6 at § 10.607(b); Cresenciano Martinez, 51 ECAB 322 (2000). 

9 See Alberta Dukes, 56 ECAB 247 (2005). 

10 Robert G. Burns, 57 ECAB 657 (2006). 
4

evidence of error.11 The Board makes an independent determination of whether a claimant has 

submitted clear evidence of error on the part of OWCP.12 

ANALYSIS 

OWCP issued its most recent merit decision on February 23, 2011, affirming a prior 

OWCP decision which found that there was no detailed, rationalized medical evidence to support 

that appellant’s claim for disability for the period April 27 to May 20, 2010 was causally related 

to the accepted February 17, 2010 work injury. Appellant’s request for reconsideration by his 

counsel, dated May 28, 2014 was received June 4, 2014, more than a year after the February 23, 

2011 merit decision, and was, therefore, untimely filed. Similarly, appellant’s July 30, 2014 

request for reconsideration, received by OWCP on October 27, 2014, was also untimely filed. 

Appellant must therefore establish clear evidence of error in OWCP’s February 23, 2011 

decision. 

The Board finds that appellant has not established clear evidence of error in OWCP’s 

February 23, 2011 decision. Appellant’s counsel argued that the evidence supported a workplace 

hazard where appellant was injured and pointed to causation of appellant’s back injury. 

Furthermore, she argued that appellant’s physicians agreed that appellant’s injury was directly 

related to his employment. OWCP has accepted that the February 17, 2010 injury occurred as 

alleged. Appellant’s claim for wage loss had been denied as there was no detailed, rationalized 

medical evidence submitted to establish that he was disabled for the period April 27 to May 20, 

2010 causally related to the accepted February 17, 2010 work injury. Counsel’s arguments do 

not establish clear evidence of error in OWCP’s February 23, 2011 decision. 

Counsel also argued that the medical evidence supports that appellant sustained a 

herniated disc, rather than a lumbar sprain. However, since OWCP has only accepted that 

appellant sustained a lumbar sprain, this argument does not show clear evidence of error in 

OWCP’s February 23, 2011 decision, which only decided whether appellant had established 

disability during the period April 27 to May 20, 2010. 

The evidence and arguments submitted on reconsideration do not raise a substantial 

question as to the correctness of OWCP’s decision in denying appellant’s claim for disability for 

the period April 27 to May 20, 2010. Consequently, the Board finds that OWCP properly found 

that the untimely reconsideration request did not establish clear evidence of error. 

On appeal, appellant’s counsel contends that the second opinion specialist confirmed that 

appellant required back surgery and the accepted lumbar strain condition needed to be upgraded. 

However, she is arguing the merits of the case, of which the Board does not have jurisdiction.13 

Counsel further contended that clear evidence of error was established based on the voluminous 

 11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011); 

James R. Mirra, 56 ECAB 738 (2005). 

12 Nancy Marcano, 50 ECAB 110 (1998). 

13 20 C.F.R. § 501.2(c). 
5

documentation of appellant’s medical history. As noted above, appellant has not shown clear 

evidence of error in OWCP’s February 23, 2011 decision. 

CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the November 21, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 29, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board