United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Richmond, CA, Employer 

__________________________________________ 

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Docket No. 15-1695 

Issued: December 14, 2015 

Appearances: Case Submitted on the Record

Hank Royal, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On May 29, 2015 appellant, through her representative, filed a timely appeal from a 

February 19, 2015 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed since the last merit decision dated August 6, 2013, to 

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 denied appellant’s request for reconsideration, 

finding that it was untimely filed and failed to show clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

This case has previously been before the Board. In the prior appeal,2 the Board found 

that OWCP had correctly determined appellant’s percentage loss of wage-earning capacity by 

comparing the post injury wages she was capable of earning in the selected position of 

administrative secretary to the pay rate at that time for the position she held on March 15, 2004, 

the date of injury. The Board found, however, that OWCP had improperly applied the pay rate. 

As there was no evidence, however, that appellant ever resumed regular full-time employment 

following her May 16, 2004 right shoulder surgery, the Board found that OWCP should have 

applied her pay rate when disability began (March 16, 2004) rather than the pay rate when 

disability recurred (May 18, 2009). The Board set aside OWCP’s December 5, 2012 decision 

and remanded the case for a proper calculation of appellant’s compensation for partial disability. 

The facts of this case as set forth in the Board’s prior decision are incorporated herein by 

reference.3

In a decision dated August 6, 2013, OWCP determined appellant’s loss of wage-earning 

capacity in accordance with the Board’s recent decision. 

On January 12, 2015 OWCP received a reconsideration request from appellant, through 

her representative. Appellant noted that she had earlier raised the issue of her right carpal tunnel 

syndrome, but a hearing representative ruled this information immaterial because the condition 

was diagnosed after the accepted condition in the present case.4

 She argued on reconsideration 

that OWCP had accepted right carpal tunnel syndrome and neck sprain under another file, 

OWCP File No. xxxxxx214. Further, the date of injury for that claim was March 6, 2003, which 

was prior to the date of injury in the present claim. It was therefore appellant’s contention that 

OWCP had failed to consider her preexisting conditions when it determined her loss of wageearning capacity. 

By decision dated February 19, 2015, OWCP found that appellant’s reconsideration 

request was untimely and failed to present clear evidence of error. 

On appeal, appellant’s representative contends that the employing establishment failed to 

consider the degree of physical impairment from both injury-related and preexisting conditions 

in determining appellant’s loss of wage-earning capacity. 

 2

 Docket No. 13-0770 (issued July 9, 2013). 

3

 OWCP accepted that appellant, a clerk had sustained an occupational disease or illness in the performance of 

duty while keying and reaching for parcels. It accepted her claim for right shoulder impingement syndrome, for 

which she underwent surgery on March 16, 2004 and again on July 13, 2009. OWCP accepted a right shoulder 

ganglion cyst. Effective January 15, 2012, it reduced appellant’s wage-loss compensation based on her capacity to 

earn wages in the selected position of administrative secretary. 

4

 In an August 9, 2012 decision, an OWCP hearing representative noted that a second-opinion physician found no 

existing conditions. Although appellant’s representative argued that OWCP did not consider carpal tunnel syndrome 

in determining loss of wage-earning capacity, the hearing representative found that this condition was not diagnosed 

until 2007 and did not prohibit appellant from working in the selected position. There was no medical 

documentation that she was restricted in the use of her hands such that her ability to perform the administrative 

secretary’s sedentary requirements would be questionable. 
3

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation: 

“The Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. The Secretary, in 

accordance with the facts found on review may -- 

(1) end, decrease, or increase the compensation awarded; or 

(2) award compensation previously refused or discontinued.”5

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

authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an 

application for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought. OWCP will consider an untimely application only 

if the application demonstrates clear evidence of error on the part of OWCP in its most recent 

merit decision. The application must establish, on its face, that such decision was erroneous.6

The term “clear evidence of error” is intended to represent a difficult standard.7

 If clear 

evidence of error has not been presented, OWCP should deny the application by letter decision, 

which includes a brief evaluation of the evidence submitted and a finding made that clear 

evidence of error has not been shown.8

ANALYSIS 

There are circumstances where a claimant may submit new evidence or argument with 

respect to modification of a wage-earning capacity determination, and receive a merit review by 

OWCP. In such a case, the application for reconsideration is properly considered a request for 

modification of the wage-earning capacity and is not subject to the one-year time limitation.9 

However, if appellant simply reiterates a previous argument and does not present any new 

 5

 5 U.S.C. § 8128(a). 

6

 20 C.F.R. § 10.607. 

7

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

8 Id., at Chapter 2.1602.5.b. 

9 See C.S., Docket No. 12-1834 (issued December 4, 2012); L.C., Docket No. 10-827 (issued March 4, 2011). As 

the Board noted, a modification of a wage-earning capacity determination may be based on a material change in the 

nature and extent of the injury-related condition, evidence that the employee has been retrained or otherwise 

vocationally rehabilitated, or the original determination was erroneous. 
4

evidence or argument that would require reopening the case for merit review, the application for 

reconsideration is considered untimely and subject to the clear evidence of error standard.10

Appellant did not submit new evidence in support of her request for reconsideration, nor 

did she submit new argument. Rather, she merely reiterated an argument previously made. 

Therefore, the question of timeliness arises. 

OWCP received appellant’s reconsideration request on January 12, 2015. As this was 

more than one calendar year after the most recent merit decision in her case, namely, OWCP’s 

August 6, 2013 decision, the Board finds that her request was untimely. Therefore, the question 

for determination is whether this untimely request demonstrated clear evidence of error in 

OWCP’s loss of wage-earning capacity determination. 

In her request for reconsideration, appellant argued that her carpal tunnel syndrome 

preexisted her accepted right shoulder condition. However, her request did not document that 

this was the case. Furthermore, the request did not, on its face, establish preexisting carpal 

tunnel syndrome as a matter of fact. 

The mere fact that a medical condition preexisted appellant’s accepted shoulder condition 

is not sufficient to establish that the selected position was medically unsuitable. The question is 

whether the preexisting condition caused incapacity to perform the duties of the selected 

position.11 As the hearing representative found in his August 9, 2012 decision, the record 

established that appellant’s carpal tunnel syndrome did not prohibit her from working as an 

administrative secretary. He noted no medical documentation of record that she was restricted in 

the use of her hands, prior to the loss of wage-earning determination, such that her ability to 

perform the administrative secretary’s sedentary requirements would be questionable. 

The Board finds that appellant’s untimely reconsideration request failed to demonstrate 

clear evidence of error in OWCP’s loss of wage-earning capacity determination. Appellant is, 

therefore, not entitled to a merit review of her case. Accordingly, the Board affirms OWCP’s 

February 19, 2015 decision. 

CONCLUSION 

The Board finds that appellant is not entitled to a merit review of her case. Appellant’s 

untimely reconsideration request did not demonstrate clear evidence of error in OWCP’s 

August 6, 2013 merit decision. 

 10 E.T., Docket No. 13-1299 (October 29, 2013). In a similar case wherein appellant had untimely requested 

reconsideration of a loss of wage-earning capacity determination, the Board determined that to establish clear 

evidence of error she must submit evidence relevant to the issue that was decided by OWCP. A.S., Docket No. 

09-553 (August 21, 2009). 

11 See Edward Holland, Jr., Docket No. 06-96 (issued June 6, 2006). 
5

ORDER 

IT IS HEREBY ORDERED THAT the February 19, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 14, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board