United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE 

Brooklyn, NY, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1376 

Issued: November 10, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 1, 2015 appellant filed a timely appeal from a February 24, 2015 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed since the last merit decision dated November 14, 2013, and the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act1

 (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. 

FACTUAL HISTORY 

On April 26, 2011 appellant, then a 43-year-old transitional mail carrier, filed a traumatic 

injury claim (Form CA-1) alleging that she sprained her back on April 23, 2011 while using a 

 1

 5 U.S.C. § 8101 et seq. 
2

disabled/unbalanced cart. She submitted an x-ray report, a work excuse note, and a return to 

work note with her claim. 

Following development of the claim, OWCP, by decision dated July 8, 2011, denied the 

claim as the medical component of fact of injury had not been established as there was no 

medical evidence which contained a medical diagnosis in connection with the April 23, 2011 

employment incident. 

Appellant disagreed with OWCP’s decision and requested an oral hearing before a 

hearing representative of OWCP’s Branch of Hearings and Review, which was held 

October 24, 2011. By decision dated December 8, 2011, OWCP hearing representative affirmed 

the July 8, 2011 decision finding that the medical evidence failed to establish causal relationship 

between the diagnosed condition and the April 23, 2011 employment incident. 

On January 4, 2012 OWCP received appellant’s request for reconsideration of its 

decision. By decision dated March 23, 2012, it denied modification of its prior decision. OWCP 

found the December 21, 2011 report from Dr. Nicholas Post, a Board-certified neurological 

surgeon, speculative or equivocal in character and lacking in medical rationale. 

On June 18, 2012 OWCP received appellant’s request for reconsideration of OWCP’s 

decision. By decision dated October 16, 2012, it denied modification of the March 23, 2012 

decision. OWCP found the December 29, 2011 medical report of Dr. Sanjeev Agarwal, Boardcertified in physical medicine and rehabilitation, insufficient to support that the diagnosed 

medical conditions were causally related to specific work incidents. 

On December 26, 2012 OWCP received appellant’s request for reconsideration of its 

October 16, 2012 decision. By decision dated March 5, 2013, it denied modification of its 

October 16, 2012 decision. OWCP found the November 28, 2012 report of Dr. Post insufficient 

to establish causal relationship. 

On August 20, 2013 OWCP received appellant’s request for reconsideration of its 

March 5, 2013 decision. By decision dated November 14, 2013, it denied modification of its 

prior decision. OWCP found the additional medical reports from Dr. Patel, Dr. Post, and 

Dr. Agarwal insufficient to establish causal relation.2

 

On November 17, 2014 OWCP received appellant’s November 13, 2014 request for 

reconsideration, postmarked November 13, 2014. Evidence received by OWCP on December 1, 

2014 included an October 15, 2014 magnetic resonance imaging (MRI) scan of the lumbar spine, 

a November 19, 2014 chart note from Dr. Post, and a duplicate copy of the November 13, 2014 

request for reconsideration. 

 2

 This included a review of new reports and reports previously of record and encompassed reports from 

Dr. Patel dated April 26, May 10 and 27, June 10, July 15, and October 21, 2011; reports from Dr. Post dated 

October 12 and December 21, 2011, November 28, 2012, and July 26, 2013; and reports from Dr. Agarwal dated 

December 29, 2011. 
3

In his November 19, 2014 report, Dr. Post indicated that appellant had an injury to her 

lumbar spine that appeared to be a result of moving heavy carts while performing employment 

duties at the employing establishment on April 23, 2011. He noted that a July 14, 2011 MRI 

scan showed evidence of degenerative lumbar discs. Prior to her accident, appellant had no 

history of low back pain or degenerative changes in her lumbar spine. Dr. Post concluded that it 

was medically reasonable that her low back pain was a result of the April 23, 2011 injury. 

By decision dated February 24, 2015, OWCP denied appellant’s reconsideration request 

finding that it was untimely filed and did not present clear evidence of error. 

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.3 

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, but does not include prerecoupment hearing decisions.4 

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

notwithstanding the one year filing limitation set forth in section 10.607 of OWCP regulations, if 

the claimant’s application for review shows clear evidence of error on the part of OWCP.5 In 

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

the prior evidence of record.6 

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 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.7

 

 3

 20 C.F.R. § 10.607(a) (2011). 

4

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

5

 20 C.F.R. § 10.607(b) (2011); Cresenciano Martinez, 51 ECAB 322 (2000). 

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

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

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 

evidence of error.8

 The Board makes an independent determination of whether a claimant has 

submitted clear evidence of error on the part of OWCP.9

 

ANALYSIS 

OWCP issued its most recent merit decision on November 14, 2013 which denied 

appellant’s claim for a traumatic injury of April 23, 2011. The February 24, 2015 nonmerit 

decision found that her request for reconsideration dated November 13, 2014 was untimely as it 

was received December 1, 2014. However, the Board notes that the request for reconsideration 

received December 1, 2014 was a duplicate copy of the original reconsideration request which 

was received November 17, 2014. 

Appellant’s request for reconsideration was received November 17, 2014, this was 

however more than a year after the November 14, 2013 merit decision. The Board notes that 

while the November 13, 2014 reconsideration request was postmarked November 13, 2014, the 

date of the request or the date of the mark is immaterial. The regulation makes clear that the 

period of limitation is satisfied only by receipt.10 As OWCP received appellant’s November 13, 

2014 reconsideration request on November 17, 2014, more than one year from the November 14, 

2013 merit decision, her reconsideration request was not timely filed. 

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

November 14, 2013 decision. Appellant’s claim was denied because she had not established a 

causal relationship between her diagnosed conditions and the April 23, 2011 employment 

incident. The issue of causal relationship is a medical issue, one that must be addressed by 

rationalized medical opinion evidence.11 

In support of her request for reconsideration, appellant submitted a November 19, 2014 

report from Dr. Post and a lumbar spine MRI scan report. However, this medical evidence does 

not establish clear evidence of error by OWCP. In his November 19, 2014 report, Dr. Post noted 

evidence of degenerative discs on appellant’s July 11, 2011 lumbar spine MRI scan and that 

prior to her accident she had no history of low back pain or degenerative changes in her lumbar 

spine. He concluded that it was medically reasonable that her low back pain was a result of the 

 8 Supra note 4; James R. Mirra, 56 ECAB 738 (2005). 

9 Nancy Marcano, 50 ECAB 110 (1998). 

10 B.B., Docket No. 14-464 (issued June 4, 2014). 

11 Mary J. Briggs, 37 ECAB 578 (1986). 
5

April 23, 2011 injury. This opinion does not establish clear evidence of error.12 The Board notes 

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 a mistake.13 The submission of 

a detailed and 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.14 

Additionally, the lumbar spine MRI scan report does not raise any substantial questions 

as to the correctness of the November 14, 2013 merit decision as it does not address the issue of 

causal relationship for the claimed April 23, 2011 injury. 

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

question as to the correctness of OWCP’s decision in its denial of appellant’s claim. 

Consequently, OWCP properly found that the untimely reconsideration request did not establish 

clear evidence of error. 

On appeal, appellant asserts that she sent in her reconsideration request in a timely 

manner and was informed by OWCP that she could send in medical notes within five days. She 

also argued that the evidence of record supported the location, cause, and diagnosis of her 

April 23, 2011 work injury. As noted, the evidence demonstrates that appellant’s reconsideration 

request was received after the one-year time period had elapsed and the evidence submitted 

failed to raise any substantial question as to the correctness of the November 14, 2013 merit 

decision. The Board may only review evidence that was in the record at the time of OWCP’s 

November 14, 2013 decision.15

CONCLUSION 

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

the grounds that it was untimely filed and failed to establish clear evidence of error. 

 12 See generally Jaja K. Asaramo, 55 ECAB 200 (2004). The opinion of a physician that a condition is causally 

related to an employment incident because the employee was asymptomatic before the injury in insufficient without 

supporting medical rationale to establish causal relationship. 

13 See Mikle W. Williams, Docket No. 01-1962 (issued June 12, 2002). 

14 A.F., 59 ECAB 714 (2008). 

15 20 C.F.R. § 501.2(c)(1). 
6

ORDER 

IT IS HEREBY ORDERED THAT the February 24, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 10, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board