United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.W., Appellant 

and 

U.S. POSTAL SERVICE, METROPLEX 

FACILITY, Pontiac, MI, Employer 

__________________________________________ 

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Docket No. 15-434 

Issued: April 14, 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 December 18, 2014 appellant filed a timely appeal from an October 21, 2014 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because more 

than 180 days have elapsed between the issuance of the last merit decision on this matter on 

July 31, 2013 and the filing of this appeal on December 18, 2014 and pursuant to the Federal 

Employees’ Compensation Act1

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

jurisdiction only over the nonmerit issue in this case.2

ISSUE 

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

review of the merits on the grounds that the request was untimely filed and failed to establish 

clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 

2 See 20 C.F.R. § 501.3(e); see also R.R., Docket No. 14-151 (issued March 25, 2014). 
2

On appeal, appellant contends that her reconsideration request was timely filed. She also 

made arguments concerning the merits of her case. 

FACTUAL HISTORY 

On March 13, 2012 appellant, then a 47-year-old mail handler, filed a traumatic injury 

claim alleging that on January 6, 2012 she was raising the trailer door to unload mail, and the 

door jammed. She alleged injuries to her lower middle back and pelvic-hip area. On January 3, 

2013 OWCP accepted appellant’s claim for closed subluxation lumbar vertebra (L5) and closed 

subluxation thoracic vertebra (T8, T9). However, in another decision of January 3, 2013, it 

denied appellant’s claim for continuation of pay for the period January 7 through 

February 20, 2012. OWCP found that the claim for injury had not been reported on an approved 

form within 30 days of the injury. It noted that the date of injury was January 6, 2012, but that 

the CA-1 form was not filed until March 23, 2012. By decision dated July 31, 2013, an OWCP 

hearing representative affirmed the January 3, 2013 decision denying appellant’s claim for 

continuation of pay. 

By letter received by OWCP on August 8, 2014, appellant filed a request for 

reconsideration. She contended that her injury occurred on January 6, 2012 and that her leave 

forms indicate that she was on unscheduled leave without pay or unscheduled annual leave from 

January 10 until March 2, 2012. Appellant asserted that her period of leave was due to her onthe-job injury and that both she and her supervisor believed that all of the needed correspondence 

and information had been supplied. In support of her argument that her leave was related to her 

employment injury, appellant submitted time analysis forms and an employee key indicators 

report. She also submitted a witness statement about the incident of January 6, 2012. 

By decision dated October 21, 2014, OWCP denied appellant’s reconsideration request as 

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

LEGAL PRECEDENT 

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

claimant must file his application for review within one year of the date of that decision.3

 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.4

 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.5

 3

 20 C.F.R. § 10.607(a). 

4

 5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 

5 D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013). 
3

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 

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

evidence of error.6

 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.7

 

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

which was decided by OWCP.8

 The evidence must be positive, precise and explicit and must 

manifest on its face that OWCP committed an error.9 Evidence which does not raise a 

substantial question concerning the correctness of OWCP’s decision is insufficient to establish 

clear evidence of error.10 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.11 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.12 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 shift the weight of the evidence in favor of the claimant and raise a substantial 

question as to the correctness of OWCP decision.13 

ANALYSIS 

OWCP accepted appellant’s claim for closed subluxation lumbar vertebra (L5) and 

closed subluxation thoracic vertebra (T8, T9). However, in a decision dated January 3, 2013, 

OWCP denied appellant’s claim for continuation of pay. The decision was affirmed by an 

OWCP hearing representative on July 31, 2013. The July 31, 2013 decision was the last merit 

decision in this case. The only issue before the Board on this appeal is that of whether OWCP 

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

7 Id. at § 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 the 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. at Chapter 2.1602.3c. 

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

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

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

11 See Leona D. Travis, supra note 9. 

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

13 Leon D. Faidley, Jr., supra note 4. 
4

properly declined to review appellant’s case on the merits because it was not timely filed and did 

not establish clear evidence of error. 

The Board finds that appellant’s request for reconsideration was untimely filed. Section 

10.607(a) of the implementing regulations provide that an application for reconsideration must 

be received by OWCP within one year of the date of OWCP’s decision from which review is 

sought.14 Appellant’s application for reconsideration was not received by OWCP until 

August 8, 2014.15 Accordingly, her application for reconsideration was untimely. 

The Board also finds that appellant failed to establish clear evidence of error. OWCP 

denied her claim for continuation of pay for the reason that her claim for a traumatic injury, filed 

on March 13, 2012, was not filed within 30 days of the date of her January 6, 2012 injury, as 

required for continuation of pay. In requesting reconsideration, appellant argued that she took 

unscheduled leave from January 10 through March 2, 2012, and that her time analysis form, 

signed by her supervisor, indicated that she took time off for the employment injury. She also 

submitted a witness statement describing her employment accident. 

The arguments and evidence appellant submitted in support of her request for 

reconsideration do not address the pertinent issue. She must show that she filed her traumatic 

injury claim within 30 days of the accepted employment incident. As stated by OWCP, FECA’s 

implementing regulations provide, in pertinent part, that to be eligible for continuation of pay, a 

claimant must file a Form CA-1 within 30 days of the date of his or her traumatic injury.16 There 

is no provision in the law for excusing an employee’s failure to file a claim within 30 days of the 

employment injury.17 Appellant’s explanations for her late filing and her contention that the 

time she took following the injury was related to the injury, are not relevant. 

The Board notes that the denial of continuation of pay does not affect appellant’s 

entitlement to other monetary compensation benefits. Appellant may pursue a claim for wage 

loss, as distinguished from continuation of pay, for any disability or period of wage loss caused 

by the accepted employment injury with the submission of a Form CA-7.18

CONCLUSION 

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

review of the merits on the grounds that the request was untimely filed and failed to establish 

clear evidence of error. 

 14 Id. at §10.607(a). 

15 Appellant correctly notes that in its October 21, 2014 decision, OWCP incorrectly states that appellant’s letter 

requesting reconsideration was received on “August 0, 2014.” The record reflects that appellant’s letter was 

received by OWCP on August 8, 2014. 

16 20 C.F.R. § 10.205(a)(1)-(3); see also Carol A. Lyles, 57 ECAB 265 (2005). 

17 Dodge Osborne, 44 ECAB 849, 855 (1993); see also H.S., Docket No. 13-519 (issued September 12, 2013). 

18 S.K., Docket No. 14-509 (issued June 3, 2014). 
5

ORDER 

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

Compensation Programs dated October 21, 2014 is affirmed. 

Issued: April 14, 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