United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.C., Appellant 

and 

DEPARTMENT OF THE INTERIOR, FISH & 

WILDLIFE SERVICE, Elkins, WV, Employer 

__________________________________________ 

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Docket No. 15-479 

Issued: April 21, 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 30, 20141 appellant filed a timely appeal from a July 3, 2014 nonmerit 

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

reconsideration as untimely and insufficient to show clear evidence of error. As more than 180 

days has elapsed between the last merit decision dated January 31, 2013 and the filing of this 

appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to the 

Federal Employees’ Compensation Act2

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

 1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from July 3, 2014, the date of OWCP’s last decision was 

December 30, 2014. Since using January 2, 2015, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is December 30, 2014, rendering the appeal timely filed. See 20 C.F.R. 

§ 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

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

was untimely and did not demonstrate clear evidence of error. 

FACTUAL HISTORY 

This case has previously been before the Board. In a decision dated April 2, 2012, the 

Board set aside a June 6, 2011 decision denying appellant’s request to expand her claim to 

include sacroiliac (SI) joint instability and left pelvis joint pain.3

 The Board determined that a 

conflict existed between an OWCP medical adviser and appellant’s attending physicians, 

Dr. Gary S. Gruen, a Board-certified orthopedic surgeon, and Dr. Philip J. Chua, an osteopath, 

regarding whether her claim should be expanded to include SI joint disease. The Board 

remanded the case for OWCP to resolve the conflict in medical opinion. The facts and 

circumstances as set forth in the prior decision are hereby incorporated by reference. 

On remand OWCP referred appellant to Dr. Peter K. Thrush, a Board-certified orthopedic 

surgeon, for an impartial medical examination.4

 Based on his report, in a decision dated July 13, 

2012, it denied her request to expand her claim to include SI joint instability and joint pain of the 

left pelvis. 

On July 24, 2012 appellant, through counsel, requested a telephone hearing. Following 

the November 16, 2012 telephone hearing, by decision dated January 31, 2013, an OWCP 

hearing representative affirmed the July 13, 2012 decision. OWCP properly addressed the 

January 31, 2013 decision to appellant. 

On February 8, 2013 the January 31, 2013 decision was returned to OWCP as 

undeliverable. The envelope indicated that the letter was “not deliverable as addressed.” 

On May 22, 2013 appellant telephoned OWCP and advised that she had not received a 

decision following the November 2012 telephone hearing. She informed OWCP that some mail 

in her area had been vandalized. 

On May 22, 2013 OWCP resent appellant a copy of the January 31, 2013 decision. It 

noted that it had correctly addressed the original decision, but that it had been returned to sender. 

In a letter dated January 31, 2014, received by OWCP on February 5, 2014, appellant 

requested reconsideration. 

 3

 Docket No. 11-1617 (issued April 2, 2012). OWCP accepted that on January 27, 2006 appellant sustained left 

hip strain, thoracic strain, and lumbar strain when she fell down a slope. Appellant underwent a left hip arthroscopy 

on August 3, 2007. 

4

 In a report dated June 22, 2012, Dr. Thrush found no objective evidence of an injury to the SI joint, noting that 

there were no bone scans or magnetic resonance imaging studies of the SI joint. He indicated that the accepted 

condition of left hip strain “turned out to be a diagnosis of a labral tear on the left....” Dr. Thrush opined that 

appellant’s accepted conditions had resolved and she could resume work. He also advised that her symptoms might 

be the result of “early arthritis in the left hip based on the labral tear.” 
3

By decision dated July 3, 2014, OWCP denied appellant’s request for reconsideration, 

finding that it was not timely and failed to show clear evidence of error. 

On appeal appellant contends that her request for reconsideration only had to be 

postmarked within one year of the last decision because she did not know about a change in the 

applicable regulation. She notes that she did not receive OWCP’s January 31, 2013 decision 

until four months after it was issued. Appellant asserts that OWCP did not assign a claims 

examiner to her request for reconsideration until June 11, 2014, 91 working days after the 

request. She also raises arguments regarding OWCP’s weighing of the medical evidence. 

LEGAL PRECEDENT 

OWCP may review an award for or against payment of compensation at any time on its 

own motion or on application.5

 An application for reconsideration, however, must be sent within 

one year of the date of OWCP’s decision for which review is sought.6 An application for 

reconsideration must now be received within one year of the date of OWCP’s decision for which 

review is sought.7

 OWCP will consider an untimely application only if the application 

demonstrates clear evidence of error on the part of it in its most recent merit decision. The 

application must establish, on its face, that such decision was erroneous.8

It is presumed, in the absence of evidence to the contrary, that a notice mailed to an 

individual in the ordinary course of business was received by that individual.9 This presumption 

arises when it appears from the record that the notice was properly addressed and duly mailed.10 

The appearance of a properly addressed copy in the case record, together with the mailing 

custom or practice of the sender, will raise a presumption that the original was received by the 

addressee. This is known as the mailbox rule.11 

ANALYSIS 

The only decision before the Board on appeal is OWCP’s July 3, 2014 nonmerit decision 

denying appellant’s January 31, 2014 request for reconsideration as untimely and insufficient to 

 5

 5 U.S.C. § 8128(a). 

6

 20 C.F.R. § 10.607. 

7 Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for 

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

merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.4 (October 2011). 

8 Id. at § 10.607(b). 

9 See George F. Gidicsin, 36 ECAB 175 (1984) (where OWCP sends a letter of notice to a claimant, it must be 

presumed, absent any other evidence, that the claimant received the notice). 

10 See Michelle R. Littlejohn, 42 ECAB 463 (1991). 

11 See Kenneth E. Harris, 54 ECAB 502 (2003); Larry L. Hill, 42 ECAB 596 (1991). 
4

show clear evidence of error. The initial issue before the Board is whether she timely requested 

reconsideration. 

In a decision dated January 31, 2013, an OWCP hearing representative affirmed a denial 

of appellant’s request to expand her claim to include SI joint instability and joint pain of the left 

pelvis. OWCP properly addressed and mailed the decision to her in accordance with its 

regulations, which provide that a copy of its decision shall be mailed to the employee’s last 

known address.12 

Under the mailbox rule, it is presumed, in the absence of evidence to the contrary, that a 

notice mailed to an individual in the ordinary course of business was received by that individual. 

This presumption arises when it appears from the record that the notice was properly addressed 

and duly mailed.13 As a rebuttable presumption, however, receipt will not be assumed when 

there is evidence of nondelivery.14 OWCP’s January 31, 2013 decision, while properly 

addressed, was returned to sender as undeliverable on May 22, 2013. The presumption of 

delivery under the mailbox rule is thus rebutted as the return envelope constitutes evidence of 

nondelivery.15 OWCP resent a copy of the January 31, 2013 decision to appellant on 

May 22, 2013. Appellant thus had one year from this date, or until May 22, 2014, to submit a 

reconsideration request to OWCP. She requested reconsideration by letter received by OWCP 

on February 5, 2014. Consequently, appellant timely requested reconsideration. In its July 3, 

2014 decision, OWCP applied the clear evidence of error legal standard to her reconsideration 

request. This standard is appropriate only in cases in which a reconsideration request is untimely 

filed.16 On remand, OWCP should consider appellant’s request for reconsideration under the 

standards that apply to timely reconsideration requests as set forth at 20 C.F.R. § 10.606(b). 

CONCLUSION 

The Board finds that the case is not in posture for decision. 

 12 20 C.F.R. § 10.127. 

13 See Michelle Lagana, 52 ECAB 187 (2000). 

14 See C.O., Docket No. 10-1796 (issued March 23, 2011); M.U., Docket No. 09-526 (issued 

September 14, 2009). 

15 See C.O., id. 

16 See Donna M. Campbell, 55 ECAB 241 (2004). 
5

ORDER 

IT IS HEREBY ORDERED THAT the July 3, 2014 decision of the Office of Workers’ 

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this decision of the Board. 

Issued: April 21, 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