United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

San Diego, CA, Employer

__________________________________________

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Docket No. 17-0474

Issued: March 23, 2018

Appearances: Case Submitted on the Record

Jeff Fultz, for the appellant1

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 January 3, 2017 appellant, through her representative, filed a timely appeal from a 

November 7, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days elapsed from OWCP’s last merit decision, dated October 22, 2015, 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 the 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 request for reconsideration of the 

merits of her claim pursuant to 5 U.S.C. § 8128(a) because her October 24, 2016 request was 

untimely filed and failed to demonstrate clear evidence of error.

FACTUAL HISTORY

On August 10, 2015 appellant, then a 48-year-old mail carrier, filed an occupational 

disease claim (Form CA-2) alleging that she injured her left leg and groin on or about 

July 15, 2015. She attributed her condition to standing and walking approximately seven hours 

per day. Appellant also noted that her carrier duties required her to get in and out of her vehicle 

about 60 to 80 times per day. Lastly, she noted that carrying a heavy mail satchel put pressure on 

her lower extremity. Appellant described her condition as a sharp pain in her left leg and groin, 

as well as a loss of flexibility in her leg. She did not stop work.

On August 27, 2015 OWCP advised appellant that she needed to submit a comprehensive 

narrative medical report from her attending physician, as the case record did not include a diagnosis 

of any condition associated with her employment. It afforded her 30 days to submit the requested

medical evidence.

OWCP subsequently received an August 21, 2015 progress/treatment note from

Dr. Jose A. Pelayo, a Board-certified internist, who diagnosed chest wall strain and hip/thigh 

strain. Dr. Pelayo noted that appellant complained of left chest pain and leg pain, which dated 

back at least four weeks. Appellant’s symptoms reportedly worsened during the course of her 

workday, which included delivering mail and carrying a more than 30-pound bag, usually on her 

left shoulder. She did not recall any particular injury, but reported that her symptoms quickly 

worsened when performing her described employment duties. Dr. Pelayo indicated that 

appellant’s symptoms were “highly likely due to/worsened by work activities.” He referred her to 

occupational medicine for further evaluation, and excused appellant from work until August 30, 

2015, which he later extended through September 13, 2015.

On September 18, 2015 Dr. Mary W. DuQuette, a Board-certified physiatrist, examined 

appellant and diagnosed chest wall strain, limb pain, and left groin pain. She advised appellant 

that it was “not clear ... that her complaints [were] work related.” Dr. DuQuette further advised 

that she did not feel she could really comment on the left chest discomfort, which appellant 

described as being associated with the position of her mailbag. She referred appellant for 

additional diagnostic studies, and advised her to return once the studies were obtained.

OWCP also received October 1, 2015 magnetic resonance imaging (MRI) scans of the left 

hip and lumbar spine. Appellant’s left hip MRI scan was negative for greater trochanteric bursitis, 

and there was no evidence of stress fracture or osteonecrosis. However, there was evidence of a 

nondisplaced split through the base of the anterior acetabular labrum, without focally-advanced 

cartilage loss, synovitis, or features of femoroacetabular impingement. Appellant’s lumbar MRI 

scan revealed multi-segmental disc degeneration and spondylosis. At L3-4 there was a small left 

foraminal disc protrusion, without nerve root impingement or spinal stenosis. At L4-5, there was 

a small right paramedian disc protrusion, without nerve root impingement.
3

By decision dated October 22, 2015, OWCP denied appellant’s occupational disease claim 

as the medical evidence of record failed to establish causal relationship between the diagnosed 

conditions and her accepted employment exposure.

OWCP subsequently received a September 18, 2015 note from Dr. DuQuette excusing 

appellant from work through November 19, 2015. Additionally, it received Dr. DuQuette’s 

October 21, 2015 follow-up progress notes. Dr. DuQuette reviewed appellant’s recent MRI scans 

and diagnosed limb pain, left groin pain, left-side L3-4 herniated nucleus pulposus, and left hip 

labral tear, degenerative.

On February 8, 2016 OWCP received a January 6, 2016 duty status report (Form CA-17), 

in addition to Dr. DuQuette’s above-noted work excuse and October 21, 2015 progress notes.

On October 24, 2016 appellant requested reconsideration. Appellant indicated that she had 

attached additional medical evidence for OWCP to review in connection with its October 22, 2015 

decision. However, no additional medical evidence was received.

By decision dated November 7, 2016, OWCP denied appellant’s request for 

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

LEGAL PRECEDENT

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

matter of right.3 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.4 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.5 

OWCP will consider an untimely request for reconsideration only if the request demonstrates 

“clear evidence of error” on the part of OWCP in its “most recent merit decision.”

6

 

 

3 This section provides in pertinent part: “[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 U.S.C. § 8128(a).

4 20 C.F.R. § 10.607.

5

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision for which review is sought. The one-year period begins on 

the next day after the date of the original contested decision. When determining the one-year period for requesting 

reconsideration, the last day of the period should be included unless it is a Saturday, a Sunday or a legal holiday. 

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

Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received 

date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

6 20 C.F.R. § 10.607(b).
4

The request must establish on its face that such decision was erroneous.7 Where a request is 

untimely filed and fails to demonstrate clear evidence of error, OWCP will deny the request for 

reconsideration without reopening the case for a review on the merits.8

When a request is timely filed, a different standard of review applies. A timely application 

for reconsideration, including all supporting documents, must set forth arguments and contain 

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.9 When 

a timely application for reconsideration does not meet at least one of the above-noted requirements, 

OWCP will deny the request for reconsideration without reopening the case for a review on the 

merits.10

ANALYSIS

In its October 22, 2015 merit decision, OWCP denied appellant’s occupational disease 

claim as the medical evidence of record failed to establish causal relationship between the 

diagnosed condition(s) and her accepted employment exposure. A timely request for 

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

review is sought.

11

 Calendar-year 2016 was a leap year and therefore there were 29 days in 

February 2016. One year from the October 22, 2015 decision fell on Saturday, October 22, 2016. 

Because the last day of the filing period fell on a weekend, the period is extended to the next 

business day, which was Monday, October 24, 2016.12 OWCP received appellant’s request for 

reconsideration on October 24, 2016. Therefore, her request is considered timely and subject to 

the standard for reviewing timely requests for reconsideration under 20 C.F.R. § 10.606(b)(3). 

Accordingly, the November 7, 2016 nonmerit decision shall be set aside, and the case remanded 

for an appropriate final decision on appellant’s timely request for reconsideration.

 

7

Id. To establish clear evidence of error, a claimant must submit evidence relevant to the issue that was decided 

by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise, and explicit and it 

must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43 ECAB 227 (1991). It is not 

enough to merely show that the evidence could be construed to produce a contrary conclusion. Evidence that does 

not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to establish clear 

evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). 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. Thankamma Mathews, 44 ECAB 765, 770 (1993).

8 20 C.F.R. § 10.608(b).

9

Id. at § 10.606(b)(3).

10 Id. at § 10.608(a), (b).

11 See supra note 5.

12 See M.A., Docket No. 13-1783 (issued January 2, 2014); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.4.
5

CONCLUSION

The Board finds that appellant’s October 24, 2016 request for reconsideration was timely 

filed and, therefore, subject to review under 20 C.F.R. § 10.606(b)(3).

ORDER

IT IS HEREBY ORDERED THAT the November 7, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision.13

Issued: March 23, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

 

13 Colleen Duffy Kiko, Judge, participated in this decision, but was no longer a member of the Board effective 

December 11, 2017.