United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tampa, FL, Employer 

__________________________________________ 

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Docket No. 16-1310 

Issued: February 17, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 7, 2016 appellant filed a timely appeal from a March 3, 2016 nonmerit decision 

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

since the last merit decision dated June 19, 2014 and 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 it 

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

On appeal, appellant contends that his injury was caused and/or aggravated while 

employed by the employing establishment. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On December 17, 2012 appellant, then a 60-year-old retired rural carrier, filed an 

occupational disease claim (Form CA-2), alleging that he developed a left knee condition due to 

factors of his federal employment, including repetitive movements. 

By decision dated January 31, 2013, OWCP denied the claim as the medical evidence 

failed to establish a causal relationship between appellant’s conditions and factors of his federal 

employment. 

On February 26, 2013 appellant requested reconsideration. By decision dated March 29, 

2013, OWCP denied modification of its prior decision. 

On March 31, 2014 appellant again requested reconsideration and submitted a March 20, 

2014 report from Dr. John C. Kagan, a Board-certified orthopedic surgeon, who opined that 

working for the employing establishment for 27 years would be of sufficient time to produce 

degenerative changes to the left knee. 

By decision dated June 19, 2014, OWCP denied modification of its prior decision. 

On June 25, 2015 appellant again requested reconsideration and resubmitted the 

March 20, 2014 report from Dr. Kagan. 

By decision dated August 12, 2015, OWCP denied appellant’s request for reconsideration 

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

On February 12, 2016 appellant again requested reconsideration and submitted narrative 

statements and documentation indicating that his third request for reconsideration had been 

postmarked on June 16, 2015. 

By decision dated March 3, 2016, OWCP denied appellant’s request for reconsideration 

as it was untimely filed and failed to demonstrate clear evidence of error. It noted that it had 

reviewed the evidence of record and explained that OWCP procedures provided that the 

timeliness of a request for reconsideration was based on the date it was received by OWCP, not 

the postmark date. 

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.2

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

discretionary authority under section 8128(a).3

 One such limitation provides that an application 

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

 2 See Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

3 See Annette Louise, 54 ECAB 783, 789-90 (2003). 
3

review is sought.4 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).5

Section 10.607(b) provides that OWCP will consider an untimely application for 

reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit 

decision. The reconsideration request must establish that OWCP’s decision was, on its face, 

erroneous.6

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

issue, which was decided by OWCP.7

 The evidence must be positive, precise, and explicit and 

must be manifest on its face that OWCP committed an error.8

 Evidence that does not raise a 

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

demonstrate clear evidence of error.9

 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.10 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.11

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.12 

The Board makes an independent determination of whether a claimant has submitted 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.13

ANALYSIS 

The Board finds that OWCP properly determined that appellant’s request for 

reconsideration was untimely filed. OWCP’s regulations14 and procedures establish a one-year 

 4

 20 C.F.R. § 10.607(a). 

5 See Jesus D. Sanchez, supra note 2; F.R., Docket No. 09-575 (issued January 4, 2010). 

6

 20 C.F.R. § 10.607(b). 

7 See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992). 

8 See Fidel E. Perez, 48 ECAB 663, 665 (1997); M.L., Docket No. 09-956 (issued April 15, 2010). 

9 See Richard L. Rhodes, 50 ECAB 259, 264 (1999). 

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

11 See Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992). 

12 See Veletta C. Coleman, 48 ECAB 367, 370 (1997). 

13 See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993). 

14 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005). 
4

time limit for requesting reconsideration, which begins on the date of the original OWCP 

decision. The Board held that for OWCP decisions issued on or after August 29, 2011, the date 

of the application for reconsideration is the “received date” as recorded in the Integrated Federal 

Employee’s Compensation System (iFECS).15 The most recent merit decision was OWCP’s 

June 19, 2014 decision. Appellant had one year from the date of this decision to make a timely 

request for reconsideration. Since appellant’s request was not received by OWCP until 

February 12, 2016, it was filed outside the one-year time period. As appellant’s February 12, 

2016 request for reconsideration was received more than one year after the June 19, 2014 merit 

decision, it was untimely filed. Consequently, he must demonstrate clear evidence of error by 

OWCP in the denial of his claim.16

The Board finds that in order to demonstrate clear evidence of error, appellant must 

submit evidence relevant to the issue which was decided by OWCP. He did not submit any new 

medical evidence with his request, relevant to the underlying issue in this case. As OWCP noted 

in its prior decisions, the issue was whether there is a causal relationship between appellant’s left 

knee conditions and factors of his federal employment. This is medical in nature. Appellant’s 

narrative statements and documentation merely restate his own arguments previously rejected by 

OWCP, that he had submitted a timely request for reconsideration. The Board finds that the 

evidence submitted by appellant in support of his request for reconsideration does not raise a 

substantial question as to the correctness of OWCP’s June 19, 2014 merit decision or shift the 

weight of the evidence of record in his favor. Therefore, appellant has failed to demonstrate 

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

merit review.17

On appeal, appellant contends that his injury was caused and/or aggravated while 

employed by the employing establishment. The Board finds that OWCP’s March 3, 2016 

decision denied appellant’s request for reconsideration because it was untimely filed and failed 

to demonstrate clear evidence of error and explained that it had reviewed the evidence submitted 

to determine whether its June 19, 2014 decision was incorrect. The Board noted above that it 

only has jurisdiction over OWCP’s March 3, 2016 nonmerit decision which denied appellant’s 

request for reconsideration and therefore is precluded from conducting a merit review. 

CONCLUSION 

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

because it was not timely filed and failed to demonstrate clear evidence of error. 

 15 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016); see 

supra note 12. See also C.B., Docket No. 13-1732 (issued January 28, 2014). 

16 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005). 

17 See A.F., Docket No. 13-7 (issued February 8, 2013). 
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ORDER 

IT IS HEREBY ORDERED THAT the March 3, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 17, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board