United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Salisbury, MD, Employer 

__________________________________________ 

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Docket No. 16-1263 

Issued: September 14, 2016 

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 6, 2016 appellant filed a timely appeal of an April 27, 2016 nonmerit decision of 

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

the last merit decision on January 12, 2015, 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 determined that appellant’s request for 

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

FACTUAL HISTORY 

On July 15, 2009 appellant, then a 52-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging a shoulder condition as a result of his federal employment. OWCP 

 1

 5 U.S.C. § 8101 et seq. 
2

accepted the claim on October 13, 2009 for left rotator cuff sprain.2 By report dated April 20, 

2010, Dr. Jason Scopp, a Board-certified orthopedic surgeon, diagnosed left shoulder partial 

articular supraspinatus tendon avulsion, left shoulder impingement syndrome, and a labral tear. 

Appellant stopped working on August 30, 2010 and received wage-loss compensation through 

January 23, 2011, when he returned to light duty. 

To determine appellant’s disability status, OWCP referred appellant to Dr. Willie 

Thompson, a Board-certified orthopedic surgeon, for a second opinion evaluation. In a report 

dated September 26, 2012, Dr. Thompson opined in his report received by OWCP on October 3, 

2012 that appellant had suffered a rotator cuff pathology and could not return to full duties of his 

employment position. 

On September 12, 2014 appellant submitted a claim for a schedule award (Form CA-7). 

By letter dated September 23, 2014, OWCP advised appellant of the evidence necessary to 

establish an employment-related permanent impairment. No additional evidence was received. 

By decision dated January 12, 2015, OWCP denied appellant’s claim for a schedule 

award. It found there had been no medical report submitted by appellant that established 

permanent impairment. 

Appellant submitted a letter dated July 14, 2015 indicating that he would like OWCP to 

set up a medical appointment for a schedule award examination. In a memorandum of telephone 

call (Form CA-110) dated September 8, 2015, OWCP indicated that appellant was advised to 

appeal the denial decision and then request a second opinion. By letter dated October 30, 2015, 

appellant wrote that he would like to request an appointment for a schedule award examination. 

OWCP advised him by letter dated November 24, 2015 that he should exercise his appeal rights 

with respect to the January 12, 2015 decision. 

On January 28, 2016 OWCP received a request for reconsideration. Appellant wrote that 

he was never given an opportunity for a physician to evaluate a schedule award. 

By decision dated April 27, 2016, OWCP found the reconsideration request was untimely 

with respect to the January 12, 2015 decision. It found that appellant had not demonstrated clear 

evidence of error in the prior decision and the reconsideration request was therefore denied 

without merit review. 

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.3

 The 

 2

 The January 12, 2015 OWCP decision provides that additional accepted claims included acromioclavicular 

sprain and left articular cartilage disorder of the shoulder. 

3

 5 U.S.C. § 8128(a). 
3

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.”4

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.5

 This section vests OWCP with discretionary authority to 

determine whether it will review an award for or against compensation.6

 OWCP, through 

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

§ 8128(a) of FECA.7

 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.8

 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.9

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.10 Evidence 

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

insufficient to demonstrate clear evidence of error.11 It is not enough merely to show that the 

evidence could be construed so as to produce a contrary conclusion.12 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.13

ANALYSIS 

In the present case, OWCP accepted that appellant sustained left shoulder conditions of 

rotator cuff sprain, acromioclavicular sprain, and articular cartilage disorder. Appellant indicated 

 4

 20 C.F.R. § 10.605 (2012). 

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

6

 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.” 

7 Supra note 1. 

8

 20 C.F.R. § 10.607 (2012). 

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

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

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

12 Id. 

13 K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010).
4

on September 12, 2014 that he was requesting a schedule award, and he was advised by letter 

dated September 23, 2014 to submit probative medical evidence. No evidence was submitted, 

and by decision dated January 12, 2015, OWCP found that he had failed to establish permanent 

impairment warranting a schedule award. 

Appellant submitted letters dated July 14 and October 30, 2015 indicating that he wanted 

OWCP to refer him for a second opinion examination. He did not request reconsideration of the 

January 12, 2015 decision until January 28, 2016. Since this is more than one year after 

January 12, 2015, it was untimely filed with respect to the January 12, 2015 decision. 

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

error by OWCP. The reconsideration request asserted that appellant did not have an opportunity 

for a permanent impairment evaluation. It is, however, appellant’s burden to submit medical 

evidence with respect to a permanent impairment.14 The medical evidence necessary to support 

a schedule award includes a physician’s detailed report that provides a sufficient description of 

the impairment.15 OWCP may then determine that further development is warranted on the 

issue. There was no medical evidence of record regarding a permanent impairment. Appellant 

has not demonstrated clear evidence of error in the January 12, 2015 decision, and OWCP 

properly denied merit review. 

On appeal, appellant indicates that he had family medical issues that delayed his 

submission of a reconsideration request. The Board notes that he is not precluded from pursuing 

the schedule award issue. Appellant may, at any time, request a schedule award by submitting 

relevant medical evidence with respect to an employment-related permanent impairment and 

receive a decision on the merits of the claim.16 

CONCLUSION 

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

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

 14 See A.B., Docket No. 12-1392 (issued January 24, 2013). 

15 See James E. Jenkins, 39 ECAB 860 (1988); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule 

Awards and Permanent Disability Claims, Chapter 2.808.5(b) (February 2013). 

16 See R.P., Docket No. 10-1123 (issued January 25, 2011). 
5

ORDER 

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

Compensation Programs dated April 27, 2016 is affirmed. 

Issued: September 14, 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