United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

St. Petersburg, FL, Employer

__________________________________________

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Docket No. 17-0663

Issued: October 24, 2017

Appearances: Case Submitted on the Record

Christopher L. Kannady, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 1, 2017 appellant, through counsel, filed a timely appeal from a 

November 2, 2016 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). The last merit decision in this case was issued on April 17, 2006 by the Board. A 

decision of the Board is final upon the expiration of 30 days from the date of the decision.2 As 

there was no merit decision issued by OWCP within 180 days of the filing of this appeal, the 

Board lacks jurisdiction to review the merits of the case pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.

 

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

See 20 C.F.R. § 501.6(d).
2

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration 

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

FACTUAL HISTORY

This case has previously been before the Board. The facts as presented in the prior 

decisions are incorporated herein by reference. The relevant facts are as follows. 

On September 7, 1989 appellant, then a 43-year-old mail processor clerk, filed a 

traumatic injury claim (Form CA-1) alleging that he injured his back on that date while breaking 

down mail. OWCP accepted the claim for a low back strain. On February 23, 1990 appellant 

filed an occupational disease claim (Form CA-2), which OWCP converted to a notice of 

recurrence of disability regarding the September 7, 1989 employment injury. The Office of 

Personnel Management (OPM) approved appellant’s application for disability retirement on 

October 2, 1990. Appellant retired from the employing establishment effective October 1, 1990. 

On July 22, 1991 OWCP accepted appellant’s recurrence claim and expanded acceptance of his 

claim to include the condition of herniated nucleus pulposus. On October 2, 1991 appellant filed 

an election form opting to receive benefits under FECA effective September 11, 1990. By letter 

dated September 27, 1991, he was placed on the periodic rolls for temporary total disability.

The Board issued a decision on April 1, 1998 in which it reversed decisions of OWCP

dated June 11 and September 11, 1997 which terminated appellant’s compensation.3 In a 

decision dated July 15, 2003, the Board reversed a February 3, 2003 hearing representative’s 

decision affirming a September 6, 2002 decision terminating appellant’s compensation benefits.4 

The Board, on April 17, 2006, affirmed an August 31, 2005 decision in which OWCP terminated 

appellant’s compensation effective September 4, 2005 as he had refused an offer of suitable 

work.5 On May 23, 2008 the Board affirmed a May 3, 2007 OWCP hearing representative’s 

decision, finding an overpayment of compensation and denying waiver of the overpayment.6 

The Board issued an order dismissing appellant’s appeal on March 24, 2010 as no person 

adversely affected by OWCP’s final decision or authorized representative had filed an appeal 

with the Board.7 The Board issued a decision on January 5, 2012 affirming a May 11, 2011 

decision denying appellant’s request for reconsideration of the August 31, 2005 termination of 

compensation benefits.

8

 The Board found that OWCP had properly found appellant’s request 

was untimely filed and that he had failed to demonstrate clear evidence of error. By decision 

 

3 Docket No. 98-0075 (issued April 1, 1998).

4 Docket No. 03-1009 (issued July 15, 2003). 

5 Docket No. 06-0073 (issued April 17, 2006).

6 Docket No. 07-2010 (issued May 23, 2008).

7 Docket No. 09-1939 (issued March 24, 2010).

8 Docket No. 11-1388 (issued January 5, 2012).
3

dated December 13, 2012, the Board affirmed OWCP’s March 30, 2012 nonmerit decision.9 The 

Board found that OWCP properly found appellant’s request for reconsideration was untimely 

filed and that he had failed to demonstrate clear evidence of error in the August 31, 2005 

termination of his compensation benefits.

Subsequent to the Board’s decision, appellant resubmitted medical and factual evidence 

and submitted new factual evidence. The new factual evidence consisted of questions from 

appellant regarding his disability retirement, the employing establishment’s job offer, and the 

suitability of the offered position. Appellant also submitted his sworn statement describing his 

condition and his inability to perform any type of employment due to his medical conditions.

On May 20, 2013 OWCP received an undated letter from appellant requesting 

reconsideration. Appellant also requested reconsideration in a letter dated September 18, 2013.

He argued that he was not a viable candidate for vocational rehabilitation and, thus, OWCP erred 

in finding that he refused an offer of suitable work. Appellant further argued that his psychiatrist 

concluded that he was unable to return to work and OWCP erred in failing to consider his mental 

restrictions.

In support of his claim, appellant submitted a September 17, 2013 report from

Dr. Robert T. Albanese, Jr., a treating Board-certified psychiatrist. Dr. Albanese opined that 

appellant was totally disabled due to his combat-related post-traumatic stress disorder. Appellant 

related that OWCP concluded that he was capable of working based on an opinion from an 

orthopedic surgeon despite medical evidence from a psychiatric physician that he was totally

disabled.

By decision dated November 12, 2013, OWCP denied appellant’s request for 

reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of 

error. It found Dr. Albanese’s report insufficient to establish clear evidence of error as he found 

appellant totally disabled due to a nonaccepted post-traumatic stress disorder and summarized 

appellant’s description of his claim. OWCP noted that appellant had failed to submit any 

medical evidence regarding his mental status in 2004 or 2005. 

On September 16, 2015 OWCP received an April 3, 2014 report from Dr. John W. Ellis, 

a treating Board-certified family medical practitioner, who noted that appellant was seen for a 

medical evaluation and opinion regarding his September 7, 1989 employment injury. Dr. Ellis 

noted appellant’s medical history and that he had refused a job offer in 2005. Physical 

examination findings were provided. Dr. Ellis diagnosed muscle back unit tendon sprain, back 

deranged discs, and bilateral L-5 and S-1 spinal nerve root impingement, which he attributed to 

the accepted September 7, 1989 employment injury. He opined that appellant’s back injury and 

post-traumatic stress disorder rendered him totally disabled and unable to perform any type of 

gainful employment. Dr. Ellis opined that appellant was entitled to compensation benefits due to 

his accepted employment conditions.

In an August 21, 2015 report, Dr. John W. Ellis noted first examining appellant on 

April 3, 2014 and he reviewed an August 22, 2014 magnetic resonance imaging (MRI) scan and 

 

9 Docket No. 12-1579 (issued December 13, 2012).
4

September 28, 2014 electromyograph/nerve conduction study (EMG). He explained that 

appellant’s diagnoses included lumbar sprain, back deranged discs, left L-4 and L-5 

radiculopathy, and bilateral L-5 and S-1 spinal nerve root radiculopathy, which he attributed to 

the September 7, 1989 employment injury. Dr. Ellis opined that appellant’s accepted 

September 7, 1989 employment injury and repetitive work duties aggravated his prior back 

injury.

In a letter dated September 16, 2015 and received by OWCP that same day, counsel 

provided a statement of accepted facts in support of appellant’s claim for compensation. He 

argued that Dr. Ellis’ reports were substantial evidence warranting reopening of appellant’s 

claim for a merit review. On September 23, 2016 OWCP received a September 19, 2016 letter 

from counsel in which he related that he was following up on his request of September 16, 2015 

that appellant’s claim be reopened. 

By decision dated November 2, 2016, OWCP denied appellant’s request for 

reconsideration finding that the September 23, 2016 request was untimely filed and failed to 

demonstrate clear evidence of error.

LEGAL PRECEDENT

OWCP, through regulations, has imposed limitations on the exercise of its discretionary 

authority under section 8128(a) of FECA.10 It will not review a decision denying or terminating 

a benefit unless the application for review is filed within one year of the date of that decision.11 

When an application for review is untimely, OWCP undertakes a limited review to determine 

whether the application presents clear evidence that OWCP’s final merit decision was in error.12 

Its procedures state that OWCP will reopen a claimant’s case for merit review, notwithstanding 

the one-year filing limitation set forth under section 10.607 of OWCP regulations,13 if the 

claimant’s application for review shows clear evidence of error on the part of OWCP.14 In this 

regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the 

prior evidence of record.15

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

which was decided by OWCP.16 The evidence must be positive, precise, and explicit and must 

 

10 See J.W., 59 ECAB 507 (2008); Mary A. Ceglia, 55 ECAB 626 (2004).

11 20 C.F.R. § 10.607; see B.W., Docket No. 10-0323 (issued September 2, 2010); A.F., 59 ECAB 714 (2008); 

Gladys Mercado, 52 ECAB 255 (2001).

12 D.G., 59 ECAB 455 (2008); Cresenciano Martinez, 51 ECAB 322 (2000).

13 20 C.F.R. § 10.607.

14 See M.L., Docket No. 09-0956 (issued April 15, 2010); Robert G. Burns, 57 ECAB 657 (2006).

15 Andrew Fullman, 57 ECAB 574 (2006); Alberta Dukes, 56 ECAB 247 (2005).

16 F.R., Docket No. 09-0575 (issued January 4, 2010); S.D., 58 ECAB 713 (2007); Joseph R. Santos, 57 ECAB 

554 (2006).
5

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

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

evidence of error. It is not enough to merely show that the evidence could be construed so as to 

produce a contrary conclusion. 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. To show clear 

evidence of error, the evidence submitted 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.17

OWCP’s procedures note that the term clear evidence of error is intended to represent a 

difficult standard. The claimant must present evidence which on its face shows that OWCP 

made an error (for example, proof that a schedule award was miscalculated). Evidence, such as a 

detailed, well-rationalized medical report which, if submitted before the denial was issued, 

would have created a conflict in medical opinion requiring further development, is not clear 

evidence of error.18 The Board makes an independent determination of whether a claimant has 

submitted clear evidence of error on the part of OWCP.19

ANALYSIS

A right to reconsideration within one year also accompanies any subsequent merit 

decision on the issues.20 Appellant, through counsel, requested reconsideration on September 16, 

2015 and requested follow up in a September 19, 2016 letter, which OWCP received on 

September 23, 2016. The Board notes that OWCP did not acknowledge appellant’s 

September 16, 2015 reconsideration request. However, as both requests were received more than 

one year after the last merit decision, dated April 17, 2006, they were both untimely filed. 

Consequently, appellant must demonstrate clear evidence of error by OWCP in the August 31, 

2005 OWCP decision which terminated his entitlement to wage-loss and schedule award 

compensation benefits for failure to accept an offer of suitable work, pursuant to 5 U.S.C. 

§ 8106(c)(2).

21

The Board finds that the arguments and evidence submitted by appellant in support of his 

requests for reconsideration fail to raise a substantial question as to the correctness of OWCP’s 

decision denying modification of its termination decision. The issue is whether appellant has 

demonstrated clear evidence of error in OWCP’s termination of his wage-loss and schedule 

award compensation for refusing an offer of suitable employment. 

 

17 J.S., Docket No. 10-0385 (issued September 15, 2010); D.D., 58 ECAB 206 (2006); Robert G. Burns, supra 

note 14.

18 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.5(a) (February 2016); 

James Mirra, 56 ECAB 738 (2005).

19 See M.L., supra note 14; G.H., 58 ECAB 183 (2006); Jack D. Johnson, 57 ECAB 593 (2006).

20 Robert F. Stone, 57 ECAB 393 (2005).

21 20 C.F.R. § 10.607(a); see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 149 (2005).
6

In his request for reconsideration and on appeal, appellant, through counsel, contends that 

OWCP erred in its August 31, 2005 decision. He asserts that Dr. Ellis’ report is sufficient to 

establish that appellant’s claim was wrongly decided and creates a new conflict with the report of

Dr. Howard L. Schuele, a previous impartial medical examiner and Board-certified orthopedic 

surgeon, regarding appellant’s ability to perform the offered job. The record also contains a 

September 17, 2013 report from Dr. Albanese, Jr. opining that appellant was unable to work due 

to his post-traumatic stress disorder. While the reports of Dr. Albanese, Jr. and Dr. Ellis support 

appellant’s disability for work, they do not demonstrate clear evidence of error as the opinions of 

these physicians finding that he could not work did not specifically address whether he could 

perform the duties of the offered position as of August 31, 2005.22 As noted, clear evidence of 

error is intended to represent a difficult standard. The submission of a detailed, well-rationalized 

medical report which, if submitted before the merit decision was issued, would have created a 

conflict in medical opinion requiring further development, is not clear evidence of error.23 The 

Board makes an independent determination of whether a claimant has submitted clear evidence 

of error on the part of OWCP.24

To demonstrate clear evidence of error, it is not sufficient merely to establish that the 

evidence could be construed so as to produce a contrary conclusion. The term clear evidence of 

error is intended to represent a difficult standard. None of the evidence submitted manifests on 

its face that OWCP committed an error in terminating appellant’s compensation for refusal of 

suitable work. Appellant has not otherwise submitted evidence of sufficient probative value to 

raise a substantial question as to the correctness of OWCP’s August 31, 2005 decision. Thus, the 

evidence is insufficient to demonstrate clear evidence of error. 

On appeal counsel argues that the reports of Dr. Ellis constitute substantial evidence 

warranting reviewing the claim on its merits. He also asserts there is now a conflict in the

medical opinion evidence between Dr. Ellis and Dr. Schuele regarding appellant’s work ability. 

As discussed above, the Board finds the report from Dr. Ellis insufficient to demonstrate clear 

evidence of error.

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration as it 

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

 

22 See F.R., Docket No. 09-0575 (issued January 4, 2010) (evidence that is not germane to the issue on which the 

claim was denied is insufficient to demonstrate clear evidence of error).

23 Supra note 18. 

24 Supra note 19.
7

ORDER

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

Compensation Programs dated November 2, 2016 is affirmed.

Issued: October 24, 2017

Washington, DC

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board