United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Sioux Falls, SD, Employer 

__________________________________________ 

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Docket No. 15-1735 

Issued: December 24, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 14, 2015 appellant filed a timely appeal from a March 4, 2015 nonmerit 

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

elapsed from the last merit decision of February 25, 2014 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 claim. 

ISSUE 

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

review of the merits as her request for reconsideration was untimely filed and failed to establish 

clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On August 23, 2013 appellant, then a 52-year-old rural carrier, filed a traumatic injury 

claim alleging that on August 22, 2013 she injured her neck when she moved a heavy tub of mail 

from the back of her vehicle to the front. She stopped work on August 24, 2013. The employing 

establishment indicated that there was a possibility that the injury was not work related because 

appellant was in a personal car accident a few days before the alleged employment injury 

occurred.2

Appellant was examined by Dr. Craig M. Smith, a Board-certified family practitioner 

specializing in sports medicine, who noted, in an August 23, 2013 report, that appellant worked 

as a rural mail carrier and complained of acute neck pain beginning on August 23, 2013 when 

she carried two heavy tubs of mail. Dr. Smith provided findings on examination and opined that 

although appellant’s condition looked like a chronic problem, he suspected that she sustained an 

acute disc rupture. He diagnosed degenerative joint disease with accompanying acute work 

related to probable disc rupture. Dr. Smith recommended a magnetic resonance imaging (MRI) 

scan examination for more information. He also provided return to work and duty status forms 

and a September 12, 2013 attending physician’s report. 

By letter dated September 10, 2013, OWCP advised appellant that the evidence submitted 

was insufficient to establish her claim and requested additional evidence. 

In a September 17, 2013 report, Dr. Smith described appellant’s symptoms as 

degenerative joint disc disease of the cervical spine and acute neck injury secondary to whiplash. 

He opined that it was “certainly possible” that appellant’s symptoms resulted from the July 31, 

2013 motor vehicle accident. Dr. Smith reported that appellant needed an MRI scan to 

determine whether surgical intervention was needed. 

In an October 3, 2013 report, Dr. Smith conducted a follow-up examination for 

appellant’s whiplash-style injury with cervical radiculopathy. He noted that there was some 

discrepancy regarding a previous car accident and the acute injury she had on the job. Dr. Smith 

reported that appellant’s MRI scan demonstrated chronic spondylosis with moderate spinal 

stenosis that looked chronic and disc space narrowing. He explained that the neck inflammation 

and disc space narrowing could accompany acute pain from acute injury regarding whiplash. 

Dr. Smith provided examination findings and diagnosed cervical degenerative spondylosis, 

chronic, with acute whiplash. He provided a duty status report and return to work form which 

recommended that appellant remain off work for three weeks. 

On October 7, 2013 appellant responded to OWCP’s development letter. She explained 

that on July 31, 2013 she was a passenger in a van when it was struck after clearing an 

intersection. Appellant indicated that she had not sustained any injuries and provided a copy of 

the motor vehicle accident report. 

 2

 Appellant has two previously accepted traumatic injury claims for a January 14, 2011 employment incident (File 

No. xxxxxx488) and a January 28, 2012 employment incident (File No. xxxxxx572). The record contains no other 

information as to what conditions had been accepted. 
3

In a decision dated October 16, 2013, OWCP accepted that the August 22, 2013 

employment incident occurred as alleged and that appellant had a diagnosed cervical condition. 

However, it denied her claim finding insufficient medical evidence to establish that her cervical 

condition was causally related to the accepted incident. 

On January 14, 2014 OWCP received appellant’s request for reconsideration. Appellant 

described the August 22, 2013 employment incident and the medical treatment she received 

shortly after the alleged injury. She alleged that the employing establishment erroneously 

attributed her condition to a motor vehicle accident that occurred a few days earlier when, in fact, 

the motor vehicle accident happened three weeks prior to the August 22, 2013 employment 

incident. Appellant noted that she was including a new December 17, 2013 report by Dr. Smith. 

Appellant submitted an October 25, 2013 return to work form from Dr. Smith which 

noted that appellant could return to work with limitations on October 29, 2013. 

In a letter dated December 17, 2013, Dr. Smith further indicated that appellant had 

preexisting cervical degenerative disease and spondylosis. He explained that the acute whiplash 

injury was related to the reported August 22, 2013 work injury and that appellant temporarily 

aggravated a preexisting condition. 

In a decision dated February 25, 2014, OWCP denied modification of the October 16, 

2013 denial decision. 

By letter dated February 23, 2015 and received by OWCP on March 2, 2015, appellant 

again requested reconsideration. She reiterated that she injured herself as a result of lifting and 

manipulating 20- to 75-pound tubs of mail six days a week in the performance of duty. First, 

appellant alleged that OWCP admitted in its October 16, 2013 decision that she provided 

sufficient evidence to establish her claim when it accepted that her employment factor occurred, 

that a medical condition was diagnosed, and that she was in the performance of duty. She 

asserted that OWCP contradicted itself when it accepted that she was in the performance of duty, 

but denied her claim based on causal relationship. Secondly, appellant alleged that, once she 

established her claim, the burden shifted to OWCP to present substantial evidence of absence of 

or lack of connection between the injury and employment and cited Bath Iron Works Corp. v. 

Preston.

3

 Third, she pointed out that even if her initial injury occurred as a result of the July 31, 

2013 motor vehicle accident, her condition was aggravated by her employment duties. Fourth, 

appellant alleged that OWCP and the Department of Labor violated her Sixth Amendment right 

to counsel and Fourteenth Amendment right to equal protection under the law by not allowing 

her to retain an attorney. 

OWCP denied appellant’s March 2, 2015 request for reconsideration on March 4, 2015, 

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

 3

 380 F. 3d 597 at p. 602 (2004). 
4

LEGAL PRECEDENT 

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

OWCP regulations provide 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.4 The Board has 

found that the imposition of the one-year time limitation does not constitute an abuse of the 

discretionary authority granted OWCP under section 8128(a) of FECA.5

 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.6

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 

nonetheless undertake a limited review of the evidence previously of record to determine 

whether the new evidence demonstrates clear evidence of error.7 OWCP regulations and 

procedures provide that it 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.8

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

decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest on 

its face that OWCP committed an error.9 Evidence that 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 In this regard, OWCP will limit its focus to a review of how the newly 

submitted evidence bears on the prior evidence of record.12 To establish clear evidence of error, 

the evidence submitted must not only be of sufficient probative value to create a conflicting 

 4

 20 C.F.R. § 10.607. 

5

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

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

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

8 Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(d) 

(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 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. 

9

 20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997). 

10 Jimmy L. Day, 48 ECAB 652 (1997). 

11 Id. 

12 Nelson T. Thompson, 43 ECAB 919 (1992). 
5

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’s decision.13 The Board makes an independent determination of whether a 

claimant has submitted clear evidence of error on the part of OWCP such that it improperly 

denied merit review in the face of such evidence.14

ANALYSIS 

The Board finds that OWCP properly determined that appellant failed to file a timely 

request for reconsideration. The most recent OWCP merit decision in this case was issued on 

February 25, 2014. OWCP did not receive appellant’s reconsideration request until March 2, 

2015, more than one year after the February 25, 2014 merit decision. Therefore, it was not 

timely filed. Consequently, appellant must demonstrate clear evidence of error on the part of 

OWCP in denying her claim. 

On appeal appellant alleges that computation of time should be based on the postmark 

date and provided copies of section 1201.22 of Title 5 of the Code of Federal Regulations. She 

noted that her reconsideration request was postmarked within one year of the February 25, 2014 

OWCP decision and provided a copy of the mailing receipt. According to OWCP regulations, 

however, an application for reconsideration must be received by OWCP within one year of its 

decision for which review is sought.15 Appellant’s reliance on 5 C.F.R. § 1201.22 does not 

pertain to filing a request for reconsideration before OWCP.16 Accordingly, the fact that 

appellant’s reconsideration request was mailed within one year of the decision does not 

constitute a timely filing according to 20 C.F.R. § 10.607(a).17 Because OWCP did not receive 

appellant’s reconsideration request until March 2, 2015, more than one year after the 

February 25, 2014 OWCP decision, her reconsideration request was not timely filed. 

Accordingly, for OWCP to review the merits of appellant’s claim, she must demonstrate clear 

evidence of error. 

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

the denial of her present claim. Following the February 25, 2014 decision, appellant submitted a 

statement along with her March 2, 2015 reconsideration request. She alleged that OWCP 

contradicted itself when it accepted that appellant was in the performance of duty but denied her 

claim based on causal relationship. Appellant contended that she provided sufficient evidence to 

establish her claim and that once she did so, the burden shifted on OWCP to establish a lack of 

connection between her condition and her employment. Despite her allegation, however, the 

Board finds that appellant has not submitted sufficient evidence to establish error in OWCP’s 

 13 Annie L. Billingsley, 50 ECAB 210 (1998). 

14 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993). 

15 20 C.F.R. § 10.607(a). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 

2.1602.4 (October 2011). 

16 The Board notes that Title 5, Sections 1200-1299 provide regulations for the Merit Systems Protection Board. 

17 See D.C., Docket No. 15-293 (issued September 11, 2015). 
6

February 25, 2014 decision. OWCP denied her claim due to insufficient evidence to establish a 

causal relationship between her diagnosed condition and the August 22, 2013 employment 

injury. Appellant has not presented any evidence that has raised a substantial question as to the 

correctness of OWCP’s decision to deny her traumatic injury claim because of a lack of causal 

relationship. 

Appellant further asserted that even if her initial injury had occurred as a result of the 

July 31, 2013 motor vehicle accident, her condition was aggravated by her employment duties. 

She did not, however, submit any medical evidence to establish an aggravation of her preexisting 

condition or to demonstrate that OWCP committed an error in denying her claim. As noted 

above, it is not enough to show that the evidence could be construed so as to produce a contrary 

conclusion. The weight of the evidence must shift in favor of the claimant.18 Accordingly, 

appellant has not shown clear evidence of error in OWCP’s October 16, 2013 denial decision. 

The Board notes that appellant also raised arguments in her reconsideration request that 

are outside the jurisdiction of the Board. To the extent that appellant has asserted that she was 

denied right to counsel and equal protection under the Sixth and Fourteenth Amendments, the 

Board notes that this argument relates to constitutional questions. The Supreme Court has held 

that constitutional questions are unsuited to resolution in administrative hearing procedures.19 

As the Board is an administrative body, it does not have jurisdiction to review a constitutional 

claim such as that made by appellant.20 Appellant’s arguments, therefore, do not show clear 

evidence of error in OWCP’s decision denying her traumatic injury claim. 

As none of the evidence of record raises a substantial question concerning the correctness 

of OWCP’s decision, appellant has failed to establish clear evidence of error on the part of 

OWCP in denying further merit review. 

CONCLUSION 

The Board finds that appellant’s request for reconsideration was untimely filed and did 

not demonstrate clear evidence of error. 

 18 Supra note 13. 

19 See Johnson v. Robinson, 415 U.S. 361 (1974) and cases cited therein. 

20 See also Robert F. Stone, 57 ECAB 292 (2005); Diana L. Smith, 56 ECAB 524 (2005). 
7

ORDER 

IT IS HEREBY ORDERED THAT the March 4, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 24, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board