United States Department of Labor

Employees’ Compensation Appeals Board

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N.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Phoenix City, AL, Employer

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Docket No. 18-0459

Issued: August 2, 2018

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 January 2, 2018 appellant filed a timely appeal from a July 6, 2017 nonmerit decision 

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

the last merit decision dated February 5, 2016, 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 to review the merits of the claim.2

ISSUE

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

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

 

1 5 U.S.C. § 8101 et seq.

2 The record provided to the Board includes evidence received after OWCP’s July 6, 2017 decision. The Board’s 

jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision. Therefore, the 

Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1). 

P.W., Docket No. 12-1262 (issued December 5, 2012). 
2

FACTUAL HISTORY

On December 16, 2015 appellant, then a 39-year-old rural carrier, filed an occupational 

disease claim (Form CA-2) alleging that her federal employment duties caused left arm and 

shoulder pain, as well as muscle spasms. In an attached statement she indicated that the pain began 

approximately two weeks prior and had worsened with time, noting that she saw a physician on 

December 7, 2015 and was diagnosed with muscle spasms. 

In a development letter dated December 24, 2015, OWCP informed appellant of the type 

of evidence needed to submit to establish her claim. This was to include medical evidence from a 

qualified physician containing a medical explanation as to how work activities caused, contributed 

to, or aggravated a medical condition. OWCP afforded appellant 30 days to respond. No 

additional evidence was received. 

By decision dated February 5, 2016, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that an injury and/or events occurred as alleged. It 

noted that she did not respond to its December 24, 2015 development letter. 

On May 8, 2017 appellant requested reconsideration. She submitted a statement of 

certification that had been forwarded by OWCP with the December 24, 2015 development letter, 

which she signed on April 20, 2017. In statements dated May 1 and June 9, 2017, appellant 

indicated that she had bilateral shoulder pain that began in November 2015 and increased as time 

passed, especially during the heavy workload during the holiday season. She related that the pain 

increased again in November 2016, and that she had constant daily pain at present, and decreased 

shoulder range of motion. Appellant described medical care and physical therapy, and noted that 

the severe pain made her miss work. 

Medical evidence submitted included a March 23, 2017 report in which Dr. William Allen 

Whitten, Board-certified in family medicine, noted a complaint of bilateral shoulder pain, right 

worse than left. Right shoulder examination demonstrated limited range of motion and tenderness 

to palpation. Dr. Whitten noted that a right shoulder x-ray was normal and diagnosed bursitis of 

right shoulder, acute pain of right shoulder, and acromioclavicular joint separation, right. 

On April 3, 2017 Dr. Robert H. Bush, a Board-certified family medicine physician and 

associate of Dr. Whitten, noted that appellant was now complaining of neck, left arm, and left 

shoulder pain that began three to four days prior. Physical examination findings included 

tenderness over the left scapular region and some restriction to left shoulder range of motion. 

Dr. Bush diagnosed left anterior shoulder pain. 

In a form report dated May 31, 2017, Dr. Kevin D. Lokkesmoe, a family medicine

physician, noted a date of injury of May 24, 2017. Under “Description” he wrote, “work-related 

left shoulder trapezius strain with muscle spasm.” Dr. Lokkesmoe referred appellant to an 

employing establishment physician. 
3

Appellant also submitted laboratory reports, physical therapy notes, patient visit 

information, and a disability slip signed by a registered nurse indicating that appellant was treated 

on March 31, 2017 and could return to work on April 2, 2017.3 

In a July 6, 2017 decision, OWCP denied appellant’s request for reconsideration, finding 

that 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, an 

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

decision for which review is sought.4 When determining the one-year period for requesting 

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

federal holiday.5 Timeliness is determined by the document receipt date, as indicated by the 

“received date” in OWCP’s Integrated Federal Employees’ Compensation System.6 The Board 

has found that the imposition of the one-year limitation does not constitute an abuse of 

discretionary authority granted OWCP under section 8128 of FECA.7

OWCP may not deny an application for review solely because the application was untimely 

filed. When an application for review is untimely filed, it must nevertheless undertake a limited 

review to determine whether the application demonstrates clear evidence of error.8 OWCP’s 

regulations and procedures provide that OWCP will reopen a claimant’s case for 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. The evidence must be positive, precise, and explicit, and 

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

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

of error, the evidence submitted must be of sufficient probative value to prima facie shift the 

 

3 The signature of the nurse is illegible. 

4 20 C.F.R. § 10.607(a).

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

also M.A., Docket No. 13-1783 (issued January 2, 2014).

6 Federal (FECA) Procedure Manual, id. at Chapter 2.1602.4(b) (February 2016).

7 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

8 See 20 C.F.R. § 607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

9

Id. at § 607(b); supra note 5 at Chapter 2.1602.5(a) (February 2016).
4

weight of the evidence in favor of the claimant and raise a substantial question as to the correctness 

of OWCP’s decision.10

OWCP 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. 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.11 The Board makes an independent determination of 

whether a claimant has demonstrated clear evidence of error on the part of OWCP.12

ANALYSIS

The Board finds that OWCP properly determined that appellant failed to file a timely 

reconsideration request. Its procedures provide that the one-year time limitation period for 

requesting reconsideration begins on the date of the original decision.13 As appellant’s 

reconsideration request was received on May 8, 2017, more than one year after the February 6, 

2016 OWCP merit decision denying her claim, her request for reconsideration was untimely

filed.

14

 Consequently, she must demonstrate clear evidence of error by OWCP in its February 5, 

2016 decision.15

The Board further finds that appellant failed to demonstrate clear evidence of error. The 

underlying issue in this case is whether she established a shoulder condition causally related to 

factors of her federal employment. 

With her reconsideration request appellant merely related that she had bilateral shoulder 

pain that began in November 2015 and described medical care. She submitted evidence including 

laboratory reports, physical therapy notes, patient visit information, and a disability slip signed by 

a registered nurse. However, these reports do not constitute medical evidence under section 

8101(2) of FECA.16

 

10 Robert G. Burns, 57 ECAB 657 (2006).

11 Supra note 5 at Chapter 2.1602.5(a) (February 2016); J.S., Docket No. 16-1240 (issued December 1, 2016).

12 See D.S., Docket No. 17-0407 (issued May 24, 2017).

13 20 C.F.R. § 10.607(a).

14 Id. 

15 M.W., Docket No. 17-0892 (issued May 21, 2018).

16 See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and 

physical therapists are not competent to render a medical opinion under FECA); Sean O’Connell, 56 ECAB 195 (2004) 

(reports by nurse practitioners and physician assistants are not considered medical evidence as these persons are not 

considered physicians under FECA). 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, 

dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their 

practice as defined by State law).
5

Appellant also submitted reports from Dr. Whitten and Dr. Bush. None of these reports 

discussed a cause of any diagnosed condition and are thus insufficient to raise a substantial 

question as to the correctness of OWCP’s decision.17 While a report from Dr. Lokkesmoe noted 

a description of work-related left shoulder strain and muscle spasm, this too is insufficient to 

demonstrate clear evidence of error. He did not describe appellant’s work duties and did not 

explain how or why any diagnosed condition was caused by work. 

The term “clear evidence of error” is intended to represent a difficult standard, and the 

argument provided here is not the type of positive, precise, and explicit evidence which manifested 

on its face that OWCP committed an error.18 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.19 

As the evidence and argument submitted are of insufficient probative value to prima facie

shift the weight in favor of appellant and raise a substantial question as to the correctness of the 

February 6, 2016 OWCP decision, appellant has not demonstrated that OWCP committed error.20 

OWCP thus properly denied her untimely request for merit reconsideration on that basis.21 

CONCLUSION

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

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

 

17 See T.W., Docket No. 13-0594 (issued August 5, 2013).

18 Supra note 10.

19 E.D., Docket No. 16-0708 (issued January 17, 2017).

20 P.S., Docket No. 17-1707 (issued February 9, 2018).

21 20 C.F.R. § 10.607(b); see D.G., 59 ECAB 455 (2008). 
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ORDER

IT IS HEREBY ORDERED THAT the July 6, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: August 2, 2018

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