United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Milford, CT, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1366 

Issued: April 6, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 22, 2016 appellant filed a timely appeal of a May 5, 2016 nonmerit decision of 

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

since the last merit decision on December 15, 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 case. 

ISSUE 

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

untimely filed and failing to demonstrate clear evidence of error. 

FACTUAL HISTORY 

On June 6, 2014 appellant, then a 50-year-old clerk, filed an occupational disease claim 

(Form CA-2) alleging that he sustained postlaminectomy syndrome as a result of his federal 

 1

 5 U.S.C. § 8101 et seq. 
2

employment. He had stopped work on May 6, 2013. Appellant submitted a July 7, 2014 note 

describing his modified job duties since 2006 and referred to a February 12, 2014 report from 

Dr. Lawrence Rapp, a Board-certified neurosurgeon selected as a second opinion physician, from 

a prior traumatic injury claim for a June 6, 1994 back injury.2

Appellant submitted a February 12, 2014 report from Dr. Rapp. Dr. Rapp noted that 

appellant had worked in some capacity until May 6, 2013, and his described job duties could 

certainly be responsible for aggravating his underlying degenerative disease and accelerating his 

L3-4 disc disease. He then discussed possible treatment options, including surgery. 

OWCP also received a July 25, 2013 report from Dr. Nadine Jennings, a Board-certified 

physiatrist. Dr. Jennings indicated that appellant underwent lumbar surgery on May 10, 2005 

and, although there was some postoperative improvement, appellant continued to complain of 

low back pain. She opined that he was totally disabled as a result of chronic low back pain and 

lumbar postlaminectomy syndrome related to his 1994 injury. 

By decision dated July 18, 2014, OWCP denied the claim for compensation. It found that 

appellant had not established the factual element of the claim. 

On November 4, 2014 appellant requested reconsideration of the claim. In an 

October 27, 2014 letter, he indicated that he had been off work for an extended period and then 

returned to work in 2006. Appellant described his job duties in bulk mail entry and distributionrelated tasks. He also submitted a second October 27, 2014 letter, indicating that he felt medical 

evidence had been ignored because OWCP had combined the two cases.3

By decision dated December 15, 2014, OWCP reviewed the merits of the claim. It found 

that appellant had described the job duties alleged to have contributed to a back condition, but as 

to the medical evidence, OWCP found it was insufficient to meet appellant’s burden of proof. 

OWCP found Dr. Rapp had reviewed only the full duties of a clerk, rather than the modified 

duties appellant performed, and his report did not establish an employment-related disability as 

of May 6, 2013 causally related to the identified work duties. 

Appellant again requested reconsideration on September 8, 2015. He indicated that an 

additional medical report was enclosed. The current case file does not include additional 

medical evidence.4

 2

 The 1994 claim was accepted for lumbar sprain, lumbar disc degeneration, lumbar spondylosis, and closed 

dislocation lumbar vertebra. A loss of wage-earning capacity determination was issued on September 6, 1996 based 

on a modified clerk position (OWCP File No. xxxxxx079). Appellant filed a claim for a recurrence of disability 

commencing May 6, 2013. By decision dated January 17, 2014, OWCP denied modification of the loss of wageearning capacity determination. 

3

 The record does not indicate that the 1994 claim has been administratively combined with the current claim. 

4

 The master OWCP File No. xxxxxx079 shows OWCP received, on September 8, 2015, an August 3, 2015 

report from Dr. Rapp. 
3

By decision dated October 14, 2015, OWCP denied merit review of the claim. It did not 

address any medical evidence and found that appellant had not established entitlement to a merit 

review. 

On January 13, 2016 appellant requested reconsideration. He submitted an August 3, 

2015 report from Dr. Rapp, who indicated that he felt his prior reports had been clear. Appellant 

reported a history of injury in June 1994 and the results of prior examinations. Dr. Rapp 

indicated that appellant had provided an extensive description of his job duties that he had read 

the description and “as such, I would state these are a contributing factor.” As to disability, he 

indicated that he would defer to the physical medicine specialist, Dr. Jennings. Appellant 

asserted that report had been previously submitted. He resubmitted the October 27, 2014 letter 

indicating that he felt the medical reports had been improperly ignored due to combining of case 

records. 

By decision dated May 5, 2016, OWCP found the reconsideration request was untimely 

filed. It further found that there was no evidence that new medical documentation had been 

submitted prior to the October 14, 2015 decision and appellant had not demonstrated clear 

evidence of error. OWCP did not review the August 3, 2015 report from Dr. Rapp. 

LEGAL PRECEDENT 

FECA provides that OWCP may review an award for or against compensation upon 

application by an employee (or his or her representative) who receives an adverse decision.5

 The 

employee shall exercise this right through a request to the district office. The request, along with 

the supporting statements and evidence, is called the “application for reconsideration.”6

According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP 

decision as a matter of right.7 This section vests OWCP with discretionary authority to 

determine whether it will review an award for or against compensation.8 It, through regulations, 

has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a) of 

FECA.9 As one such limitation, 20 C.F.R. § 10.607 provides that an application for 

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

review is sought.10 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 

 5

 5 U.S.C. § 8128(a). 

6

 20 C.F.R. § 10.605 (2012). 

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

8

 Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.” 

9

 5 U.S.C. §§ 8101 et seq.

10 20 C.F.R. § 10.607 (2012). 
4

evidence must be positive, precise, and explicit and must manifest on its face that OWCP 

committed an error.11 

To show clear evidence of error, the evidence submitted must not only be of sufficient 

probative value to create a conflicting 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.12 Evidence that does 

not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to 

establish clear evidence of error.13 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.14 A determination of whether the claimant has 

established clear evidence of error entails a limited review of how the evidence submitted with 

the reconsideration request bears on the evidence previously of record.15

ANALYSIS 

In the present case, the last decision on the merits of the claim was the December 15, 

2014 OWCP decision. Appellant filed the reconsideration request at issue on January 13, 2016. 

Since this is more than one year after the last merit decision, it was untimely filed. As an 

untimely reconsideration request, appellant must demonstrate clear evidence of error by OWCP. 

Appellant argued that he had previously submitted an August 3, 2015 report from 

Dr. Rapp and that the evidence of record had not been properly reviewed. The Board agrees and 

finds that appellant has demonstrated clear evidence of error by OWCP. When appellant 

submitted the reconsideration request on September 8, 2015, he indicated that he was submitting 

an additional medical report. He clearly identified the current OWCP file number and a date of 

injury as 2013. 

The Board has reviewed the case record for the master OWCP File No. xxxxxx079 and 

finds that on September 8, 2015 OWCP received the August 3, 2015 report from Dr. Rapp. It is 

well established that when OWCP is adjudicating a claim, it is obligated to consider all evidence 

properly submitted by a claimant and received prior to the issuance of its final decision.16 When 

 

 11 D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005). 

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

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

14 Id. 

15 K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010). 

16 See William A. Couch, 41 ECAB 548 (1990). 
5

OWCP fails to properly consider relevant evidence submitted, it raises a substantial question as 

to the correctness of the decision and demonstrates clear evidence of error.17 In the present case, 

appellant had properly submitted relevant evidence on September 8, 2015 and the October 14, 

2015 OWCP decision failed to review the evidence. The Board finds that appellant has 

demonstrated clear evidence of error in this case. 

The case will be remanded to OWCP. After such further development as is deemed 

necessary, OWCP should issue an appropriate decision. 

CONCLUSION 

The Board finds that appellant has demonstrated clear evidence of error and the case is 

remanded to OWCP for further proceedings consistent with this decision of the Board. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated May 5, 2016 is reversed. 

Issued: April 6, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 See H.G., Docket No. 16-0610 (issued October 19, 2016)(appellant submitted evidence one day prior to an 

OWCP decision, but OWCP did not review the evidence and asserted it was not available for viewing until a day 

after the final decision. The Board found the failure to review the evidence showed clear evidence of error by 

OWCP); see also S.P., Docket No. 13-0646 (issued February 4, 2014) (OWCP’s failure to review relevant medical 

evidence in its decisions showed clear evidence of error).