United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Canton, OH, Employer 

__________________________________________ 

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Docket No. 16-1447 

Issued: December 7, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 30, 2016 appellant, through counsel, filed a timely appeal of a May 17, 2016 

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

180 days has elapsed from the last merit decision, dated July 1, 2014, to the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3 the Board lacks jurisdiction to review the merits of the claim. 

ISSUE 

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

was untimely filed and failed to demonstrate clear evidence of error. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On April 14, 2014 appellant, then a 47-year-old city letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on April 8, 2014 she injured her left knee while descending 

steps when delivering mail in the performance of duty. 

The employing establishment provided appellant with an authorization for examination 

(Form CA-16) on April 8, 2014. 

Appellant provided a statement indicating that she began experiencing knee pain on 

April 7, 2014. She purchased a knee brace and worked on April 8, 2014 with some pain. While 

delivering mail on April 8, 2014, appellant walked down steps holding onto the handrail and 

when she stepped on the last step with her left foot she felt and heard a “pop” in the back of her 

knee. She felt excruciating pain immediately and reported her condition to the employing 

establishment. Appellant’s supervisor transported her to the emergency room. 

Dr. Simas V. Laniauskas, an emergency room physician, examined appellant on 

April 8, 2014. He noted her history of stepping off of a stair and hearing a pop in her left knee 

with instant pain. Dr. Laniauskas diagnosed knee sprain and found that appellant’s x-ray was 

unremarkable. 

Dr. Steven Coss, a Board-certified orthopedic surgeon, examined appellant on April 11, 

2014 and found that her x-rays demonstrated mild-to-moderate preexisting arthritis under her 

knee cap and not the medial aspect of her knee. He diagnosed chondromalacia patella, 

osteoarthrosis in the lower leg, knee, and a grade 1 medial collateral ligament sprain with a 

possible torn medial meniscus. Dr. Coss reported that appellant’s injury occurred on April 8, 

2014 during work-related travel. He released appellant to return to modified duty. Dr. Coss 

examined appellant on May 7, 2014. He noted that appellant had not returned to work. 

In a letter dated May 19, 2014, OWCP noted that when appellant’s claim was initially 

received, it appeared to be a minor injury and payment of a limited amount of medical expenses 

was administratively approved. It reopened appellant’s claim for consideration because she had 

not returned to full-time work. OWCP requested that appellant provide additional factual and 

medical evidence in support of her claim. 

Dr. Coss examined appellant on June 4, 2014. He repeated his diagnoses of sprain 

medial collateral ligament of the left knee, chondromalacia patella, and osteoarthrosis of the 

lower leg knee. Dr. Coss recommended a magnetic resonance imaging (MRI) scan. 

In a narrative report dated June 6, 2014, Dr. Coss described appellant’s employment 

incident as descending stairs, feeling her left knee pop, and then experiencing a sharp pain in her 

left knee. He opined that this was a work-related injury sustained on April 11, 2014. Dr. Coss 

again diagnosed sprained medial collateral ligament of the left knee, chondromalacia of the 

patella, osteoarthritis of the left knee, and a possible medial meniscal tear of the left knee. He 

recommended a left knee MRI scan to confirm these diagnoses. Dr. Coss opined that appellant’s 

left knee conditions were a direct result of the April 8, 2014 injury. He again noted that 

appellant experienced a pop in the left knee at the time of injury which was consistent with a 

meniscal-type injury. 
3

By decision dated July 1, 2014, OWCP denied appellant’s traumatic injury claim, finding 

that she had not submitted sufficient evidence to establish that the employment event occurred as 

alleged. It noted that appellant had not provided any witnesses statements, nor had she 

responded to its request for information regarding any prior symptoms. OWCP further noted 

that appellant had submitted reports from Dr. Coss dated April 11, May 7, and June 4 

and 6, 2014. 

Appellant, through counsel, submitted a document entitled “Motion for Rescission” of 

the July 1, 2014 decision, received by OWCP on February 22, 2016. Counsel cited to the 

regulations governing requests for reconsideration. He alleged that OWCP failed to consider 

Dr. Coss’ June 6, 2014 report which contained a history of injury. Counsel noted that OWCP 

specifically mentioned reports from Dr. Coss dated April 11, May 7, and June 4 and 5, 2014, but 

not the June 6, 2014 report. He asserted that OWCP’s claims examiner overlooked a crucial 

piece of evidence as the June 6, 2014 report from Dr. Coss provided a complete history of injury. 

By decision dated May 17, 2016, OWCP denied appellant’s request for reconsideration, 

as it was received on February 22, 2016, more than one year after the July 1, 2014 merit 

decision. It further found that appellant had not demonstrated clear evidence of error in support 

of her request for reconsideration. 

LEGAL PRECEDENT 

Section 8128(a) of FECA3

 does not entitled a claimant to a review of an OWCP decision 

as a matter of right.4 This section vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation.5

 OWCP, through regulations has imposed 

limitations on the exercise of its discretionary authority. One such limitation is that it will not 

review a decision denying or terminating a benefit unless the application for review is timely. In 

order to be timely, a request for reconsideration must be received by OWCP within one year of 

the date of OWCP’s merit decision for which review is sought. Timeliness is determined by the 

document receipt date of the reconsideration request which is the “received date” in the 

Integrated Federal Employee’s Compensation System (iFECS).6 The Board has found that the 

imposition of this one-year time limitation does not constitute an abuse of the discretionary 

authority granted OWCP under 5 U.S.C. § 8128(a).7

In those cases where requests for reconsideration are not timely filed, the Board has held 

that OWCP must nevertheless undertake a limited review of the case to determine whether there 

is clear evidence of error pursuant to the untimely request.8

 OWCP’s procedures state that it will 

 3

 5 U.S.C. § 8128(a). 

4 Thankamma Mathews, 44 ECAB 765, 768 (1993). 

5 Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990). 

6

 20 C.F.R. § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) 

(October 2011). G.F., Docket No. 15-1053 (September 11, 2015). 

7 Supra note 4 at 769; Jesus D. Sanchez, supra note 5 at 967. 

8 Supra note 4 at 770. 
4

reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set forth 

in its regulations, if the claimant’s request for reconsideration demonstrates “clear evidence of 

error.”9

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

issue which was decided by OWCP.10 The evidence must be positive, precise and explicit and 

must be manifest on its face that OWCP committed an error.11 Evidence which does not raise a 

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

demonstrate clear evidence of error.12 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.13 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.14 To 

demonstrate 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 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.15 The 

Board must make an independent determination of whether a claimant has demonstrated clear 

evidence of error on the part of OWCP such that OWCP abused its discretion in denying merit 

review in the face of such evidence.16

ANALYSIS 

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

was untimely filed and failed to demonstrate clear evidence of error. 

Counsel requested reconsideration of the July 1, 2014 merit decision, through an undated 

document entitled “Motion for Rescission” of the July 1, 2014 decision which was received by 

OWCP on February 22, 2016. As this request for reconsideration was received by OWCP more 

than one year after the latest merit decision, OWCP properly determined that it was untimely 

filed and properly applied the clear evidence of error standard. 

In support of the February 22, 2016 request for reconsideration, counsel argued that 

OWCP failed to consider Dr. Coss’ June 6, 2014 report as establishing the factual basis for 

appellant’s claim. The Board finds that this argument does not demonstrate clear evidence of 

error on the part of OWCP. Counsel incorrectly asserted that OWCP did not specifically 

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

10 Supra note 4. 

11 Leona N. Travis, 43 ECAB 227, 241 (1991). 

12 Jesus D. Sanchez, supra note 5 at 968. 

13 Supra note 11. 

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

15 Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989). 

16 Nancy Marcano, 50 ECAB 110 (1998). 
5

mention the June 6, 2014 report in its July 1, 2014 decision. In fact, OWCP listed this report 

among the medical evidence reviewed. Furthermore, while Dr. Coss’ report was supportive of 

appellant’s version of the events of April 8, 2014, was not responsive to OWCP’s queries 

regarding appellant’s previous left knee symptoms or any prior diagnosed conditions. Clear 

evidence of error is intended to be a difficult standard. As noted above, evidence which does not 

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

demonstrate clear evidence of error.17 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.18 The Board finds that the argument submitted 

by counsel does not demonstrate clear evidence of error on the part of OWCP. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration, as it 

was untimely filed and failed to demonstrate clear evidence of error by OWCP. 

ORDER 

IT IS HEREBY ORDERED THAT the May 17, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 7, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 Jesus D. Sanchez, supra note 5 at 968. 

18 Supra note 11.