United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Jacksonville, FL, Employer 

__________________________________________ 

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Docket No. 16-1767 

Issued: January 12, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On September 1, 2016 appellant filed a timely appeal from a May 26, 2016 nonmerit 

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

from the last merit decision dated May 8, 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. 

On appeal appellant asserts that she timely mailed her reconsideration request. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On March 24, 2015 appellant, then a 61-year-old mail processing clerk, filed a traumatic 

injury claim (Form CA-1) alleging that she injured both hands and both shoulders that day when 

loading and sweeping mail on a processing machine, and lifting trays of mail up onto racks and 

into containers. She stopped work early but returned at her usual start time the following day. In 

support of her claim, appellant submitted discharge instructions from Baptist Medical Center 

emergency department. This provided a discharge diagnosis of shoulder pain, indicated that 

x-rays of both shoulders had been performed, and advised that medication had been prescribed. 

The employing establishment controverted the claim and maintained that it should be a 

claim for an occupational disease. 

By letter dated April 3, 2015, OWCP informed appellant of the evidence needed to 

support her traumatic injury claim, including a statement from a physician who had examined 

her explaining how the reported employment incident caused or aggravated a medical condition. 

Evidence submitted thereafter included March 24, 2015 x-rays of the right and left 

shoulder done at the hospital emergency department. Each demonstrated normal alignment 

without evidence of acute osseous abnormality. A more complete March 24, 2015 emergency 

department report from Dr. Taylor Burch Barnikel, a family physician, advised that appellant 

presented with bilateral hand pain and swelling with an onset 1 week prior, and bilateral shoulder 

pain with an onset 12 weeks prior. She noted that, while appellant had previously been 

prescribed anti-inflammatory medication by her physician, while it had somewhat helped, the 

hand pain continued. Physical examination demonstrated painful overhead range of motion of 

both shoulders with diffuse shoulder tenderness. Dr. Barnikel diagnosed shoulder pain. 

Appellant was again examined at Baptist Medical Center’s emergency department on 

April 13, 2015. Dr. Gerald S. Maxwell, a Board-certified family physician, reported a history of 

pain in both shoulders and hands since December 2014 with associated tingling and numbness 

and that appellant believed this was due to her work at the employing establishment. Physical 

examination demonstrated bilateral carpal tunnel region tenderness with no swelling. No 

discharge diagnosis was recorded. 

Medical reports with an illegible signature dated April 16, 2015 noted that appellant 

complained of bilateral arm and shoulder pain with paresthesias. A diagnosis of cervical 

radiculopathy was recorded. Physical restrictions were provided. 

In an April 27, 2015 report, Dr. Brett Puckett, Board-certified in orthopedic surgery and 

hand and upper extremity surgery, noted a history of gradual onset of constant aching, and sharp 

bilateral hand and shoulder pain. He described appellant’s report that her work duties involved 

operating large machinery and managing large bins and trays of mail. Right hand examination 

demonstrated middle finger A-1 pulley tenderness and prominence of the first carpometacarpal 

joint of the thumb. Wrist examination demonstrated bilateral positive basal joint grind test. 

Upper extremity range of motion was full. Tinel’s and compression tests were negative 

bilaterally. Sensation was normal in both arms. Bilateral hand x-rays demonstrated degenerative 
3

joint disease, greater on the right, with no fractures or dislocations. Dr. Puckett recommended an 

electrodiagnostic study of both hands. 

By decision dated May 8, 2015, OWCP accepted that an incident occurred on March 24, 

2015, but denied her claim because the medical evidence of record did not contain a medical 

diagnosis in connection with the March 24, 2015 incident. Appeal rights attached to the decision 

indicated that a reconsideration request needed to be signed, dated, and received within one 

calendar year of the date of the decision. 

The employing establishment offered appellant a modified assignment on April 17, 2015 

which she refused to accept on May 6, 2015. 

In a May 4, 2015 report, received on May 11, 2015, Dr. Kevin Murphy, a Board-certified 

orthopedic surgeon and associate of Dr. Puckett, noted a complaint of bilateral shoulder pain, left 

greater than right. He found left shoulder tenderness on examination and bilaterally positive 

O’Brien’s SLAP, Neer’s, and Hawkin’s tests. Range of motion of both shoulders was painful. 

Shoulder x-rays demonstrated acromion osteophytes and acromioclavicular (ACL) joint 

degenerative joint disease. Dr. Puckett diagnosed shoulder joint pain, shoulder synovitis, 

osteoarthritis of the ACL joint, shoulder impingement syndrome, and rotator cuff tendinitis. He 

recommended bilateral magnetic resonance imaging (MRI) scans of both shoulders. On June 16, 

2015 Dr. Puckett noted that an electrodiagnostic study was normal.2

 He provided physical 

examination findings and recommended physical therapy. 

On March 25, 2016 appellant requested a copy of her file. OWCP forwarded a copy of 

her file on April 21, 2016. 

In a report dated March 31, 2016 and received by OWCP on May 5, 2016, 

Dr. Richard M. Blecha, a Board-certified orthopedic surgeon, noted a history that in late 2014 

appellant developed bilateral hand and shoulder pain. On March 24, 2015 a specific event 

occurred when appellant was sweeping mail and lifting mail trays weighing approximately 40 

pounds over shoulder height. Dr. Blecha indicated that appellant reported that she developed 

immediate severe, sharp pain in the right shoulder, reported it to her supervisor, and went to an 

emergency room. He indicated that appellant underwent MRI scans of both shoulders.3

 

Dr. Blecha also reported that appellant had been in a motor vehicle accident in 

August 2015 and was now working light duty. He noted a current complaint of constant right 

shoulder pain, especially with far reaching and above the shoulder movements. Right shoulder 

examination demonstrated tenderness at the ACL joint and lateral acromion. Neer and empty 

can testing was positive and her range of motion was diminished. Dr. Blecha reviewed a right 

shoulder MRI scan report and diagnosed rotator cuff tear of the right shoulder and osteoarthritis 

of the right shoulder AC joint, preexisting but permanently aggravated by the March 24, 2015 

 2

 A copy of the electrodiagnostic study is not found in the case record before the Board. Appellant also submitted 

June 15, 2015 reports from Andrew T. Braun, a physician assistant who is an associate of Dr. Puckett and 

Dr. Murphy. 

3

 Copies of the MRI scan reports are not found in the case record. 
4

incident. He commented that, even though appellant’s shoulder soreness began in late 2014, she 

sustained an acute injury at work on March 24, 2015 when she reported that she picked up a 

heavy mail tray and, as she lifted it over her shoulder, developed a sudden and severe sharp pain. 

Dr. Blecha concluded that, based on the history provided him, his physical examination findings, 

and review of medical records including the MRI scan, the March 24, 2015 incident was the 

direct and proximate cause of the right shoulder rotator cuff tear and that her preexisting 

osteoarthritis was permanently aggravated by this incident. He noted that her additional 

problems involving her hands would fall under an occupational disease claim. 

On a form request dated and postmarked May 6, 2016, received by OWCP on May 11, 

2016, appellant requested reconsideration. She attached a statement dated March 31, 2016 in 

which she noted: 

“On March 24, 2015 while sweeping mail on the Delivery Barcode Sorter 

(DBCS), at the Jacksonville Processing and Distribution Center I lifted a tray of 

mail weighing about 40 [pounds] and felt a sharp pain in my right shoulder. Both 

hands and the left shoulder were also hurting from repetitive motion during my 

shift.” 

In a May 26, 2016 decision, OWCP denied appellant’s reconsideration request as it was 

untimely filed and failed to demonstrate clear evidence of error on the part of OWCP. The 

decision stated: 

“You did not present clear evidence of error. Therefore your request for 

reconsideration is denied because it was not received within the one-year limit. 

The basis for this decision is you did not provide any statement at all [that] the 

initial denial decision dated [May 8, 2015] was done in error. Instead you 

submitted new evidence to support your appeal but because the appeal request 

form was received untimely we are now unable to review your new evidence.” 

LEGAL PRECEDENT 

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for 

further merit review.4

 This discretionary authority, however, is subject to certain restrictions. 

For instance, a request for reconsideration must be received within one year of the date of 

OWCP’s decision for which review is sought.5

 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.6

OWCP may not deny a reconsideration request solely because it was untimely filed. 

When a claimant’s application for review is untimely filed, OWCP must nevertheless undertake 

 4

 5 U.S.C. § 8128(a); see Y.S., Docket No. 08-440 (issued March16, 2009). 

5

 20 C.F.R. § 10.607(a). 

6 E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 
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a limited review to determine whether it demonstrates clear evidence of error. If an application 

demonstrates clear evidence of error, it will reopen the case for merit review.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 establish 

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 

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

reconsideration was untimely filed. An application for reconsideration must be received within 

one year of the date of OWCP’s decision for which review is sought.14 As to appellant’s 

assertion that she timely mailed her reconsideration request, OWCP regulations provide that an 

application for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.15 The appeal rights attached to the May 8, 2015 

decision also informed appellant that a reconsideration request must be signed, dated, and 

received within one calendar year of the date of the decision. Because appellant’s request for 

reconsideration was not received by OWCP until May 11, 2016, more than one year after 

issuance of the May 8, 2015 merit decision, it was untimely.16

 7 See M.L., Docket No. 09-956 (issued April 15, 2010); 20 C.F.R. § 10.607(b); Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5a (February 2016). 

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

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

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

11 Id. 

12 Id. 

13 Leon D. Faidley, Jr., supra note 6. 

14 Supra note 7. 

15 20 C.F.R. § 10.607(a). 

16 Id.; see D.N., Docket No. 15-1182 (issued September 9, 2015). 
6

Nonetheless, the Board finds this case is not in posture for decision. Section 2.1602.5b of 

OWCP procedures provides that, in denying an application for reconsideration, OWCP should 

include a brief evaluation of the evidence submitted.17 In its July 26, 2016 decision, OWCP 

found that, because the appeal was untimely, it would not review the evidence presented. As this 

decision did not comport with OWCP procedures, it must be set aside. The case will therefore 

be remanded for OWCP to prepare an appropriate decision, in accordance with its procedures for 

reviewing an untimely application for reconsideration.18

CONCLUSION 

The Board finds this case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the May 26, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further 

proceedings consistent with this decision of the Board. 

Issued: January 12, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 17 Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.1602.5b (February 2016). See also Robert M. 

Pace, 46 ECAB 551 (1995) (in determining whether an application demonstrates “clear evidence of error” 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). 

18 Id.