United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Hopewell Junction, NY, Employer 

__________________________________________ 

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Docket No. 16-1108 

Issued: September 21, 2016 

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant1

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 May 4, 2016 appellant, through counsel, filed a timely appeal from November 12 

2015 and April 7, 2016 nonmerit decisions of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed since the last merit decision dated November 17, 

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 over the merits of this 

case. 

 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

ISSUES 

The issues are: (1) whether OWCP properly denied appellant’s October 23, 2015 request 

for reconsideration without merit review of the claim pursuant to 5 U.S.C. § 8128(a); and 

(2) whether OWCP properly found appellant’s request for reconsideration received on March 31, 

2016 was untimely filed and failed to demonstrate clear evidence of error. 

FACTUAL HISTORY 

The case has previously been before the Board.3

 The facts and the circumstances as 

presented in the prior appeal are incorporated herein by reference. The relevant facts are as 

follows. 

On October 17, 2012 appellant, then a 28-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that he sustained a hernia as a result of lifting and stacking pallets at work 

on September 26, 2012. By decision dated December 13, 2012, OWCP found the evidence was 

insufficient to establish the claim for compensation. 

On January 4, 2013 appellant requested a hearing before an OWCP hearing 

representative. In a May 16, 2013 decision, an OWCP hearing representative affirmed the 

December 13, 2012 decision. 

Appellant, through counsel, requested reconsideration on November 13, 2013 and 

submitted a September 9, 2013 report from Dr. Lyda Rojas Carroll, a Board-certified surgeon. 

Dr. Carroll indicated that appellant has undergone hernia surgery on June 28, 2013. She opined 

that the September 26, 2012 lifting incident had caused the once reducible hernia to become 

incarcerated and require surgery. 

By decision dated January 28, 2014, OWCP denied modification of the prior decision. It 

found that Dr. Carroll’s report was not based on a complete background as the factual evidence 

showed the surgery was required for a preexisting, no employment-related condition. 

Appellant appealed to the Board. The Board remanded the case to OWCP by decision 

dated July 22, 2014. The Board found that the primary issue was medical in nature, and 

Dr. Carroll had explained how a preexisting hernia can be aggravated and accelerate the time for 

surgery. The Board remanded the case to OWCP to further develop the medical evidence with 

respect to whether the umbilical hernia was caused or aggravated by the September 26, 2012 

employment incident, and if so, whether the June 28, 2013 surgery was employment related. 

On return of the case record, OWCP sent Dr. Carroll an August 12, 2014 letter requesting 

that she submit a report clarifying how the September 26, 2012 employment incident aggravated 

the umbilical hernia. There is no indication that Dr. Carroll responded. 

By decision dated November 17, 2014, OWCP denied the claim for compensation. It 

found the medical evidence was insufficient to establish the claim. 

 3

 Docket No. 14-0762 (issued July 22, 2014). 
3

On October 23, 2015 appellant, through counsel, submitted an October 17, 2015 letter 

requesting reconsideration. Counsel indicated that an August 26, 2015 report from Dr. Carroll 

was attached. The evidence of record, however, indicated only that a copy of the September 9, 

2013 report from Dr. Carroll was submitted. 

By decision dated November 12, 2015, OWCP denied the reconsideration request 

without merit review of the claim as the submitted evidence was previously of record and 

reviewed by OWCP. The decision was addressed to appellant’s address of record and to the 

address of appellant’s counsel. 

On November 20, 2015 OWCP received a return to sender notice from the employing 

establishment regarding appellant’s address. The employing establishment indicated that the 

time to forward the mail had expired. On December 7, 2015 OWCP attempted to contact 

appellant by telephone, but received a message that the number was disconnected. 

By letter received on March 31, 2016, counsel wrote that a reconsideration request had 

been submitted on October 22, 2015 and requested that OWCP issue a decision. He also 

submitted a second letter dated March 27, 2016 advising OWCP of an address change for 

appellant. 

By decision dated April 7, 2016, OWCP found that the letter received on March 31, 2016 

was an untimely request for reconsideration of the November 17, 2014 merit decision. It denied 

merit review of the claim, finding that appellant had not demonstrated clear evidence of error. 

LEGAL PRECEDENT -- ISSUE 1 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4

OWCP’s regulations provides that a claimant may obtain review of the merits of the claim by 

submitting a written application for reconsideration that sets forth arguments and contains 

evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of 

law; (ii) advances a relevant legal argument not previously considered by OWCP; or 

(iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.”5

 

20 C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the 

requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the 

merits of the claim.6

ANALYSIS -- ISSUE 1 

In the present case, OWCP issued a decision dated November 17, 2014 denying the claim 

for compensation. Appellant timely requested reconsideration on October 23, 2015, and by 

decision dated November 12, 2015, OWCP denied merit review. 

 4

 5 U.S.C. § 8128(a) (providing that “[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”). 

5

 20 C.F.R. § 10.606(b)(3). 

6 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 
4

Counsel has alleged that the November 12, 2015 decision was not received by either 

appellant or counsel. In this regard the Board notes that there is a presumption, under the 

mailbox rule, that a mailing in the due course of business is received by the addressee.7

 The 

presumption does not apply in this case with respect to the mailing to appellant, as OWCP 

received evidence that appellant did not receive the decision.8 

The presumption, however, does apply to the mailing to counsel. The decision was 

properly addressed and no contrary evidence was submitted. OWCP’s regulations state that a 

copy of the decision shall be mailed to the employee’s last known address. If the employee has a 

designated representative, a copy of the decision will also be mailed to the representative.9

 

The Board also notes that the record indicates that the reason the November 12, 2015 

decision was not received by appellant was that he had failed to properly notify OWCP of a 

change in address. Notification of change of address was not provided to OWCP until 

March 31, 2016. Pursuant to regulations appellant’s copy of the decision was mailed to the last 

known address. The Board finds the November 12, 2015 decision was properly issued as it was 

mailed to the last known address of appellant and counsel.10

With respect to the findings in the November 12, 2015 decision, the Board finds that 

OWCP properly denied merit review. Appellant did not show that OWCP erroneously applied 

or interpreted a specific point of law, or advance a relevant legal argument not previously 

considered by OWCP. Counsel indicated that he was submitting an additional medical report, 

but the record does not contain a new medical report submitted with the reconsideration request. 

The only medical report was the September 9, 2013 report from Dr. Carroll, which was 

previously of record and previously reviewed by OWCP. Evidence or argument which is 

repetitious or duplicative of that already in the case record is of no evidentiary value in 

establishing a claim and does not constitute a basis for reopening the case.11 Appellant therefore 

failed to submit pertinent new and relevant evidence. 

The Board therefore finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3) and that OWCP properly declined to review the merits of the claim. 

On appeal, counsel asserts that the November 12, 2015 decision was not received, and 

argues that the decision improperly denied merit review. As discussed above, the November 12, 

2015 OWCP decision was properly issued. In addition, there was no pertinent new and relevant 

evidence submitted and OWCP properly found the reconsideration request was insufficient to 

warrant merit review of the claim. 

 7 See Larry L. Hill, 42 ECAB 596 (1991). 

8

 When there is probative evidence of nondelivery, the presumption of receipt does not apply. J.L., Docket No. 

15-0828 (issued August 3, 2015). 

9

 20 C.F.R. § 10.127. 

10 Id. 

11 See Eugene F. Butler, 36 ECAB 393 (1984); see also V.R., Docket No. 16-0969 (issued August 8, 2016). 
5

LEGAL PRECEDENT -- ISSUE 2 

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.12 

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.”13

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.14 This section vests OWCP with discretionary authority to 

determine whether it will review an award for or against compensation.15 OWCP, through 

regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. 

§ 8128(a) of FECA. 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.16 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 

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

committed an error.17 

To demonstrate 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.18 Evidence 

that does not raise a substantial question concerning the correctness of OWCP’s decision is 

insufficient to demonstrate clear evidence of error.19 It is not enough merely to show that the 

evidence could be construed so as to produce a contrary conclusion.20 A determination of 

whether the claimant has demonstrated clear evidence of error entails a limited review of how 

the evidence submitted with the reconsideration request bears on the evidence previously of 

record.21

 12 5 U.S.C. § 8128(a). 

13 20 C.F.R. § 10.605 (2012). 

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

15 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.” 

16 20 C.F.R. § 10.607 (2012). 

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

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

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

20 Id. 

21 K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010). 
6

ANALYSIS -- ISSUE 2 

In the present case, counsel submitted a letter dated March 27, 2016 and received by 

OWCP on March 31, 2016, indicating that he was making a second request for reconsideration. 

The last decision on the merits of the claim was dated November 17, 2014. The March 27, 2016 

letter was received more than one year after November 17, 2014, and therefore is an untimely 

reconsideration request. 

As an untimely reconsideration request, appellant must demonstrate clear evidence of 

error by OWCP. In the March 27, 2016 letter, counsel indicates only that he had previously 

requested reconsideration. This indication of a prior reconsideration request does not 

demonstrate clear evidence of error. OWCP issued a November 12, 2015 decision, as discussed 

above, with respect to an October 23, 2015 reconsideration request. In the absence of clear 

evidence of error, it properly declined to review the merits of the claim for compensation. 

CONCLUSION 

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

reconsideration without merit review of the claim. The Board further finds that OWCP properly 

found appellant’s letter received on March 31, 2016 was an untimely reconsideration request that 

failed to demonstrate clear evidence of error. 
7

ORDER 

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

Compensation Programs dated April 7, 2016 and November 12, 2015 are affirmed. 

Issued: September 21, 2016 

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