United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Fenton, MO, Employer 

__________________________________________ 

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Docket No. 16-0708 

Issued: January 17, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 26, 2016 appellant filed a timely appeal from September 29, 2015 and 

January 4, 2016 nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days elapsed from the last merit decision, dated March 13, 2013, 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 denied appellant’s requests for reconsideration, 

finding that they were untimely filed and failed to demonstrate clear evidence of error. 

On appeal appellant contends that she demonstrated clear evidence of error as: (1) she 

submitted evidence from 1994 that made the Board’s April 26, 2011 decision invalid; (2) that she 

submitted evidence that made OWCP’s March 13, 2013 decision invalid; (3) that her file 

contained evidence improperly filed from other claims; and (4) that OWCP lost crucial pieces of 

her record. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.2 The facts and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows. 

On January 7, 1994 appellant, then a 28-year old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that on that date she slipped on snow while exiting her 

vehicle to deliver mail and fractured her left ankle. OWCP accepted appellant’s claim for 

trimalleolar fracture of the left ankle and open reduction internal fixation left medial and lateral 

malleoli. Appellant returned to work with the employing establishment on January 13, 1994 

with restrictions and was released to full-duty work on July 8, 1994. Her employment with the 

employing establishment terminated on August 2, 1994 after which time she performed 

nonfederal employment. 

On December 23, 2008 OWCP denied appellant’s claim for wage-loss compensation 

from December 20, 1995 through August 31, 2004 as the medical evidence of record failed to 

establish a causal connection between the January 7, 1994 employment injury and the claimed 

period of disability. Appellant requested a hearing. The hearing representative affirmed the 

December 23, 2008 decision on April 7, 2009. Appellant subsequently requested 

reconsideration. By decision dated December 16, 2009, OWCP denied modification of the 

April 7, 2009 decision, and this decision was affirmed by the Board on April 26, 2011.3

On August 26, 2009 OWCP terminated appellant’s wage-loss compensation benefits, 

effective August 30, 2009, after finding that her injury-related disability had ceased. Appellant 

filed numerous requests for reconsideration that were denied by OWCP. OWCP last reviewed 

the merits of this claim on March 13, 2013 and denied modification. It subsequently declined 

appellant’s request for merit review in decisions dated July 15, September 16 and November 15, 

2013, and March 21, 2014. 

In a decision dated August 15, 2014, the Board affirmed the November 15, 2013 and 

March 21, 2014 OWCP decisions which denied reconsideration without conducting a merit 

review regarding the termination of benefits.4

On June 1, 2015 appellant asked OWCP to reconsider the termination decision of 

August 26, 2009. Along with appellant’s request for reconsideration, OWCP received a 

magnetic resonance imaging (MRI) scan of the lumbar spine dated August 7, 2014, which was 

interpreted as showing degenerative changes in the lumbar spine. 

Appellant again requested that OWCP reconsider her claim by letter dated June 17, 2015, 

received by OWCP on June 22, 2015. She related that she was enclosing MRI scans as 

supporting medical evidence. OWCP received with appellant’s request for reconsideration a 

May 2, 2012 MRI scan of the left ankle which showed medial malleolar postsurgical changes 

 2

 Docket No. 10-1245 (issued April 26, 2011); Docket No. 14-1102 (issued August 15, 2014). 

3 Id. 

4 Id. 
3

with likely residual postoperative thickening of the tibionavicular and tibiocalcaneal ligaments 

and no acute osseous ligament or tendon abnormality. 

On August 3, 2015 OWCP received a letter dated July 29, 2015, wherein appellant again 

asked OWCP to reconsider the decision of August 26, 2009 and the Board’s April 26, 2011 

decision. Appellant forwarded two MRI scan reports which she claimed showed a consequential 

injury of the back and continuing residuals and disability due to her accepted conditions which 

she alleged was sufficient to demonstrate clear evidence of error. She also submitted an 

October 5, 2006 report by Dr. David E. Chalk, a Board-certified orthopedic surgeon. 

By decision dated September 29, 2015, OWCP denied appellant’s requests for 

reconsideration of the merits of its March 13, 2013 decision as they were untimely filed and 

failed to demonstrate clear evidence of error. 

On October 29, 2015 OWCP received appellant’s October 26, 2015 request for 

reconsideration of the March 13, 2013 merit decision. Appellant resubmitted the October 5, 

2006 medical report by Dr. Chalk. She also alleged that the May 2, 2012 ankle MRI scan, the 

January 2, 2013 narrative report, and the January 2, 2013 duty status report (Form CA-17) were 

all in the record prior to the March 13, 2013 decision. 

By decision dated January 4, 2016, OWCP denied appellant’s October 29, 2015 

reconsideration request as it 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.5

 

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.6 The one-year 

period begins on the date of the original decision. However, a right to reconsideration within one 

year accompanies any subsequent merit decision on the issues. This includes any hearing or 

review of the written record decision, any denial of modification following reconsideration, any 

merit decision by the Board, and any merit decision following action by the Board.7

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

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

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

error.8

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

 5

 20 C.F.R. § 10.607(a). 

6

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

7 D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013). 

8 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 
4

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.9

 

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

issue which was decided by OWCP.10 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.11 Evidence which does not raise a 

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

clear evidence of error.12 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.13 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.14 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 decision.15 

ANALYSIS 

The Board finds that OWCP properly declined to reopen appellant’s claim for 

reconsideration of the merits as the request was untimely filed and failed to demonstrate clear 

evidence of error. 

Prior to OWCP’s September 29, 2015 decision, OWCP received appellant’s requests 

reconsideration on June 1 and 22, and August 3, 2015. As these requests were received more 

than one year after the last merit decision, dated March 13, 2013, the reconsideration requests 

were untimely filed.16 Likewise, prior to OWCP’s January 4, 2016 decision, OWCP received 

appellant’s October 26, 2015 request for reconsideration on October 29, 2015. As this request 

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

(January 2004). OWCP procedures further provide 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. Id. at Chapter 2.1602.3c. 

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

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

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

13 See supra note 11. 

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

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

16 Insofar as appellant also requested on July 29, 2015 that OWCP reconsider the claim for wage-loss benefits for 

the period December 20, 1995 through August 31, 2004, OWCP has not issued a final decision regarding that aspect 

of appellant’s request for reconsideration. 
5

was also received more than one year following the March 13, 2013 merit decision, it was 

untimely filed. 

The Board further finds that appellant’s untimely requests for reconsideration fail to 

demonstrate clear evidence of error. In support of her requests for reconsideration, appellant 

submitted an October 5, 2006 report by Dr. Chalk, a report that was already in the record and had 

been previously considered by OWCP. She also submitted MRI scan reports that were not 

previously in evidence. However, these reports do not demonstrate clear evidence of error as 

they do not establish on their face that OWCP improperly terminated benefits effective 

August 30, 2009.17 These reports do not address the issue of continuing disability from the 

accepted employment condition. 

Appellant argued in her reconsideration request dated October 29, 2015 that the May 2, 

2012 MRI scan report was before OWCP at the time of the March 13, 2013 decision. She is 

incorrect as this MRI scan was first submitted with her request for reconsideration on 

October 29, 2015. Finally, appellant contended that the January 2, 2013 narrative and the 

January 2, 2013 duty status reports were all in the record prior to the March 13, 2013 decision. 

These items were in evidence prior to the March 13, 2013 decision, as is demonstrated by the 

fact that both of these items of evidence were discussed and reviewed by OWCP in the 

March 13, 2013 decision. 

On appeal appellant argues that the medical evidence submitted prior to the last merit 

decision establishes that the March 13, 2013 decision was invalid. As previously noted, the 

Board does not have jurisdiction to reconsider the merits of the case and can only address 

whether OWCP properly denied merit review of the case.18 Appellant has not submitted any 

evidence to support that crucial pieces of information were not in the record. 

The Board notes that clear evidence of error is intended to represent a difficult standard. 

Even the submission of a detailed well-rationalized 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.19

Accordingly, the Board finds that OWCP properly denied appellant’s untimely 

reconsideration requests, as they were untimely filed and failed to demonstrate clear evidence of 

error. 

CONCLUSION 

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

they were untimely filed and failed to demonstrate clear evidence of error. 

 17 Supra note 9. 

18 20 C.F.R. § 501.3(3); see also F.W., Docket No. 15-1891 (issued January 13, 2016). 

19 B.W., Docket No. 15-0892 (issued August 26, 2015). 
6

ORDER 

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

Compensation Programs dated January 4, 2016 and September 29, 2015 are affirmed. 

Issued: January 17, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board