United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

San Antonio, TX, Employer 

__________________________________________ 

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Docket No. 16-0894 

Issued: October 3, 2016 

Appearances: Case Submitted on the Record

Brett Elliott Blumstein, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 25, 2016 appellant, through counsel, filed a timely appeal from a March 11, 

2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision of June 17, 2013 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 claim. 

 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

ISSUE 

The issue is whether OWCP properly denied appellant’s February 22, 2016 request for 

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

FACTUAL HISTORY 

On March 7, 2013 appellant, then a 45-year-old rural route carrier, filed an occupational 

disease claim (Form CA-2) alleging injuries to her neck, right shoulder, right hand, right wrist, 

and upper and lower back as a result of her repetitive employment duties. She specifically noted 

that her work duties involved repetitively pushing, pulling, carrying, lifting, bending, stooping, 

climbing, grasping, casing mail, and overhead reaching for eight years. Appellant first became 

aware of her condition on February 8, 2013 and realized that it resulted from her employment on 

February 21, 2013. She stopped work on February 12, 2013. The employing establishment 

noted that appellant had just returned to full duty and was previously working limited duty for a 

different work-related condition. 

By letter dated March 27, 2013, OWCP advised appellant that the evidence submitted 

was insufficient to establish her claim and requested that she submit additional factual and 

medical evidence to support her occupational disease claim. Appellant was afforded 30 days to 

submit this evidence. A similar letter was sent to the employing establishment. 

In an April 3, 2013 statement, appellant explained that she had performed the repetitive 

duties of a letter carrier for the past eight years. She noted that she had previous job injuries, but 

had performed the full duties of her position from April 2012 to January 2013. Appellant 

reported that she had experienced pain off and on in her right hand, wrist, arm, forearm, 

shoulder, neck, back, and thoracic area for months, but she believed that it would go away in 

time. She described in detail her employment duties and the physical requirements of each task. 

Appellant indicated that she did not have any hobbies or other activities outside of her 

employment that could cause her injuries. 

Dr. Leonel Reyes, a family practitioner, related in an April 2, 2013 report that appellant 

was examined for a repetitive injury to her right hand, wrist, forearm, shoulder, neck, and 

thoracic area caused by work-related activities. He discussed her employment duties that were 

repetitive in nature and reviewed various diagnostic examination reports. Dr. Reyes opined that 

appellant’s right lateral epicondylitis, right upper radiculopathy, and right wrist tenosynovitis, 

right superior labral tear from anterior to posterior, cervical herniated nucleus pulposus (HNP), 

lumbar HNP, thoracic HNP, and right carpal tunnel syndrome were a direct result of her 

repetitive duties that she performed as a letter carrier. 

Appellant underwent diagnostic examinations. In an April 10, 2013 magnetic resonance 

imaging (MRI) scan examination report of the lumbar spine, Dr. Gerald York, a Board-certified 

diagnostic radiologist, noted her history of lower back pain with radiculopathy. He observed a 

small disc herniation in the lumbar region causing mild narrowing of the right extra foraminal 

space and large disc herniation in the lower thoracic region at the T11-12 level on the left. In an 

April 10, 2013 MRI scan examination report of the thoracic spine, Dr. York observed small disc 

bulge at the T3-4 level and disc herniation at the T11-12 level. 
3

By letter dated April 19, 2013, appellant’s supervisor indicated that she reviewed 

appellant’s April 3, 2013 statement and noted her disagreements with the description of 

appellant’s employment duties. She reported that appellant’s duties were performed 

intermittently and at her own pace. 

A human resource management specialist for the employing establishment, A.B., 

submitted a letter dated April 24, 2013 that controverted appellant’s claim. She related that 

appellant had been off work since April 12, 2011 for a work-related ankle injury and returned to 

full duty on April 10, 2012. A.B. noted that during this time-frame appellant submitted another 

occupational disease claim alleging injuries to her neck, right shoulder, and bilateral carpal 

tunnel syndrome. She alleged that appellant’s current claim was for the same injuries in her 

previous claim for which she had already been cleared to return to full duty. A.B. further 

discussed her disagreements with appellant’s description of her employment duties and asserted 

that she exaggerated the duties she performed. 

In a decision dated June 17, 2013, OWCP denied appellant’s claim finding that she failed 

to establish fact of injury. It determined that the factual evidence did not support that she 

performed the employment duties she alleged contributed to her condition and the medical 

evidence failed to establish a diagnosed condition related to her employment. 

Following OWCP’s June 17, 2013 decision, on April 10, 2014, OWCP received a letter 

dated March 27, 2014 by Dr. Helo Chen, a family practitioner. Dr. Chen requested that OWCP 

review the attached medical evidence and reconsider appellant’s occupational disease claim. She 

described appellant’s duties as a rural letter carrier, performed for over eight years. Dr. Chen 

discussed appellant’s previous work-related injuries and noted that those claims should not affect 

appellant’s current claim. She reviewed appellant’s diagnostic examination reports and 

explained the various upper extremity, lumbar, and thoracic conditions that appellant developed 

as a result of her employment. Dr. Chen opined that appellant suffered an occupational workrelated injury as a result of performing her prolonged job duties. 

On September 9, 2014 OWCP received appellant’s unsigned appeal request form in 

which she requested reconsideration. Appellant resubmitted Dr. Chen’s March 27, 2014 letter. 

A telephone memorandum of September 12, 2014 indicates that OWCP called appellant 

and advised that it had received her request for reconsideration on September 9, 2014, but that it 

was unsigned. On September 15, 2014 OWCP received her signed appeal request form, which 

appears identical to the September 9, 2014 form, except that additional information was added 

including her address, telephone number, and “today’s date” of “July 11, 2013.” 

Appellant also submitted an e-mail dated October 11, 2013 from H.C., a postal worker. 

H.C. explained that he had worked for the employing establishment for nearly 30 years and was 

very familiar with all the areas on the workroom floor. He stated that it was common for a 

bucket of flat mail to exceed 30 or 40 pounds in weight and that carriers often lifted these 

buckets above their waist in order to load them into carts or hampers. 

In an October 9, 2014 report, Dr. R. Scott Rosenblum, a Board-certified otolaryngologist, 

observed no active disease of the chest and no significant changes since February 20, 2012. 
4

By decision dated July 9, 2015, OWCP denied appellant’s reconsideration request. It 

determined that her reconsideration request was untimely filed and failed to demonstrate clear 

evidence of error on the part of OWCP. 

In a letter dated February 16, 2016 and received by OWCP on February 22, 2016, counsel 

alleged that appellant uploaded a request for reconsideration of the June 17, 2013 denial decision 

on April 10, 2014. However, no evidence was enclosed by him that a request for reconsideration 

was “uploaded” by her or an authorized representative on April 10, 2014. Counsel requested that 

OWCP review appellant’s file to confirm whether she filed a reconsideration request within one 

year of the June 17, 2013 denial decision and that OWCP assign her case to a claims examiner 

for reconsideration. 

On February 29, 2016 OWCP issued a letter to counsel advising him to review the appeal 

rights enclosed with the July 9, 2015 decision and choose which appeal rights were in appellant’s 

best interest. 

By letter dated February 26, 2016 and received by OWCP on February 29, 2016, counsel 

alleged that OWCP ignored appellant’s reconsideration request that was uploaded on 

April 10, 2014. He requested that OWCP review the file and confirm that she responded to 

OWCP’s June 17, 2013 denial decision within one year. 

In a decision dated March 11, 2016, OWCP denied further merit review of appellant’s 

claim finding that her February 29, 2016 request was untimely filed and failed to demonstrate 

clear evidence of error. 

LEGAL PRECEDENT 

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

claimant’s application for review must be received within one year of the date of that decision.3 

The Board has found that the imposition of the one-year limitation does not constitute an abuse 

of the discretionary authority granted OWCP under section 8128(a) of FECA.4 The one-year 

time limitation begins to run on the date following the date of the original decision.5 

OWCP, however, may not deny an application for review solely because the application 

was untimely filed. When an application for review is untimely filed, it must nevertheless 

undertake a limited review to determine whether the application demonstrates clear evidence of 

error.6 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for 

 3

 20 C.F.R. § 10.607(a). 

4

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 

5 See S.T., Docket No. 15-382 (issued April 3, 2015); J.J., Docket No. 14-0746 (issued October 17, 2014); C.B.,

Docket No. 13-1732 (issued January 28, 2014). 

6 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 
5

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 demonstrates clear evidence of error on the part of OWCP.7 

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

issue which was decided by OWCP.8 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.9 Evidence which does not raise a 

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

demonstrate 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 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.12 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.13

ANALYSIS 

On June 17, 2013 OWCP issued a decision denying appellant’s occupational disease 

claim. Accordingly, appellant had one year from June 17, 2013 to make a timely request for 

reconsideration.14 Her February 22, 2016 request for reconsideration was therefore untimely 

filed. 

Counsel alleged in his February 22, 2016 request for reconsideration and in another letter 

received on February 29, 2016 that appellant had timely uploaded a request for reconsideration 

on April 10, 2014. 

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

(October 2011). 

8 See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992). 

9 See Jesus D. Sanchez, 41 ECAB 964, 968 (1990). 

10 See Leona N. Travis, 43 ECAB 227, 240 (1991). 

11 Id. 

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

13 Leon D. Faidley, Jr., supra note 4. 

14 See D.G., 59 ECAB 455 (2008); Veletta C. Coleman, 48 ECAB 367 (1997). 
6

The record establishes that, on April 10, 2014, OWCP received a letter from Dr. Chen 

requesting that OWCP reconsider appellant’s occupational injury claim based on her attached 

medical evidence. There is no evidence of record that Dr. Chen was appellant’s authorized 

representative at that time. 

OWCP’s regulations at 20 C.F.R. § 10.700 provides: 

“(a) The claims process under the FECA is informal. Unlike many workers’ 

compensation laws, the [employing establishment] is not a party to the claim, and 

OWCP acts as an impartial evaluator of the evidence. Nevertheless, a claimant 

may appoint one individual to represent his or her interests, but the appointment 

must be in writing.” 

* * * 

“(c) A properly appointed representative who is recognized by OWCP may make 

a request or give direction to OWCP regarding the claims process, including a 

hearing. This authority includes presenting or eliciting evidence, making 

arguments on facts or the law, and obtaining information from the case file, to the 

same extent as the claimant....” 

While counsel alleged that appellant also uploaded a request for reconsideration on 

April 10, 2014, he has not submitted any evidence to substantiate a request for reconsideration 

was filed by her or an authorized representative within one year of June 17, 2013. 

Counsel argues that the request for reconsideration was timely filed, but offered no 

evidence or argument to demonstrate clear evidence of error in the denial of appellant’s claim. 

Therefore, the Board finds that her request for reconsideration was untimely filed and failed to 

demonstrate clear evidence of error. 

CONCLUSION 

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

reconsideration was untimely filed and failed to demonstrate clear evidence of error. 
7

ORDER 

IT IS HEREBY ORDERED THAT the March 11, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 3, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board