United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Melbourne, FL, Employer

__________________________________________

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Docket No. 16-1583

Issued: February 21, 2018

Appearances:

William Hackney, Esq., for the appellant1 Case Submitted on the Record

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 1, 2016 appellant, through counsel, filed a timely appeal from a June 10, 2016 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 

180 days have elapsed since the last merit decision dated September 5, 2014, 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(e), the Board lacks jurisdiction to review the merits of this case.

 

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 determined that appellant’s request for 

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

FACTUAL HISTORY

On August 8, 2013 appellant, then a 57-year-old mail handler/equipment operator, filed a 

notice of recurrence of disability (Form CA-2a) for an injury he sustained under OWCP File No. 

xxxxxx058.

3

 He indicated that he had a seizure on July 27, 2013 and fell from his powered 

industrial vehicle (PIV). Because of the nature of the July 27, 2013 employment incident,

OWCP considered the claim as a new traumatic injury.

On October 3, 2013 OWCP advised appellant that it required additional factual and 

medical evidence, including a comprehensive medical report, to support his claim that he

sustained an injury on July 27, 2013. Appellant was afforded 30 days to submit the additional 

evidence.

In an attending physician’s report (Form CA-20) dated August 1, 2013, received by 

OWCP on December 5, 2013, Dr. Denise Taylor, an osteopath, advised that she had treated 

appellant for seizures caused by intractable epilepsy, triggered by exposure to certain chemicals,

on June 12 and July 27, 2013. She reported that he was currently undergoing medical trials and 

further testing. Dr. Taylor noted that appellant sustained an epileptic seizure in 1995 after 

exposure to cleaning products and chemicals at work. She diagnosed focal epilepsy.

By decision dated November 7, 2013, OWCP denied appellant’s claim, finding that he 

failed to provide medical evidence sufficient to establish that he sustained an injury causally 

related to the accepted July 27, 2013 work incident. It found that Dr. Taylor’s report was 

insufficient to establish that the diagnosed condition of focal epilepsy resulted from the July 27, 

2013 employment incident. OWCP found that, while Dr. Taylor advised that appellant’s 

seizures were triggered by his exposure to certain chemicals, there was no evidence that he was

exposed to any specific chemicals at the employing establishment on July 27, 2013. It further 

found that Dr. Taylor noted that his first seizure occurred in 1995, after he was exposed to 

cleaning products and chemicals at work.

In a February 17, 1997 report, received by OWCP on December 5, 2013, Dr. Roberto 

Mixco, Board-certified in neurology, advised that appellant had experienced a seizure the prior 

day. He reported that appellant was feeling shaky and confused.

In a September 24, 1998 report, received by OWCP on December 5, 2013,

Dr. Stephen H. McDonald, an osteopath, advised that appellant had complaints of seizure 

disorder which he believed was related to a work injury which occurred between 1994 and 1996. 

He reported that his initial complaints began in approximately early 1994. Appellant had been 

working around mail bins, which were lubricated with silicone spray material containing

 

3 The Board notes that OWCP File No. xxxxxx058, pertaining to appellant’s previous claim, is not before the 

Board on this appeal. 
3

acetone, xylene, and petroleum distillates. Dr. McDonald believed that his exposure to fumes 

produced by these chemical agents produced significant symptoms such as severe headaches, 

nausea, shaking sensations, and dizziness, in addition to flushing of the skin and redness of his 

hands, lack of coordination, slight memory loss, and eye and throat irritation. 

Appellant related that in early 1995 he was evaluated for complaints of seizures and 

underwent an electroencephalogram (EEG), which was abnormal and showed evidence of 

epilepsy. Dr. McDonald noted that appellant had seizures which he was unable to control and 

that his physician believed his seizure activity may have been related to the environmental 

exposures at his workplace. He noted that after being removed from that work environment his 

seizures had become relatively controlled and less frequent. Dr. McDonald opined that, because 

appellant was no longer performing these workplace activities and had not been doing so since 

1996, his previous medical complaints should have resolved. He advised that he could have 

been predisposed to seizure disorder and that his exposure to chemical agents in his workplace 

may have lowered his seizure threshold potential, causing his seizures to occur while working in 

these work environments. Dr. McDonald advised that this might explain the fact that his seizure 

activity appeared to be markedly improved with removal from any additional exposure to these 

chemical agents.

On November 20, 2013 appellant requested an oral hearing, which was held before an 

OWCP hearing representative on June 12, 2014. At the hearing, he stated that he was driving a 

PIV at work on July 27, 2013 when he experienced a seizure, during which he struck his head, 

left shoulder, and left hip. Appellant related that his physician told him that he began to 

experience soreness in his hip and shoulder from the brunt trauma he sustained during the 

July 27, 2013 employment incident. He was represented by counsel, who stated that he was 

supposed to be restricted from working in an environment where he was exposed to any 

chemicals or operating a PIV. Appellant asserted that management had violated these 

restrictions in 2009 and essentially attributed appellant’s seizure to exceeding his work 

restrictions. 

In a December 12, 2013 report, received by OWCP on July 17, 2014, Dr. Gary M. Weiss, 

a Board-certified neurologist, noted that he was treating appellant for toxic encephalopathy with 

memory loss, seizures, headaches, other cognitive loss, depression, visual symptoms, fatigue, 

and insomnia. He advised that appellant underwent a magnetic resonance imaging (MRI) scan 

of the brain on November 19, 2013, which was abnormal, and a brain MRI scan on December 8, 

2013, the results of which were normal. Dr. Weiss reported that appellant also underwent EEG 

tests on November 19 and 25, 2013, the results of which were normal.

In an April 1, 2014 report, Dr. Weiss advised that he continued to treat appellant for his 

diagnosed conditions and essentially reiterated his previous findings and conclusions. He noted 

that he also had complaints of spinal pain, left hip pain, and left shoulder pain. Dr. Weiss 

reported that appellant had fallen a lot lately due to his symptoms and that he seemed to fall 

mainly on his left side.

In a May 2, 2014 report, Dr. Weiss essentially reiterated his previous findings and 

conclusions and advised that appellant had bone spurs on his left hip and left shoulder due to the 

constant falls caused by his seizures. Appellant also reported intermittent cervical pain radiating 
4

to the left upper extremity, with numbness and tingling in his fingers, intermittent thoracic pain 

with no radiation, and constant lumbar pain with radiation to the bilateral hips, buttocks, and 

lower extremities. Dr. Weiss indicated that appellant had numbness and tingling in his feet and 

toes.

In a July 8, 2014 report, Dr. Weiss advised that appellant had a history of seizure disorder 

due to encephalopathy. He noted that an employing establishment physician had informed 

appellant that his seizures were due to blunt trauma. Appellant reported that his seizures were 

currently under control with medication. Dr. Weiss advised that appellant underwent a left hip

MRI scan on May 28, 2014, which showed mild degeneration and changes of the bilateral hips. 

He also underwent a left shoulder MRI scan on June 20, 2014, which showed mild 

acromioclavicular osteoarthritis. Dr. Weiss noted neck pain with herniated nucleus pulposus at 

C5-6 and C6-7, thoracic spine pain at T6-7 and lumbar pain with herniated nucleus pulposus at 

L3-5.

In a statement dated July 8, 2014, appellant’s immediate supervisor, J.B., advised that he 

never mentioned having any work limitations during the two years he worked for him, although 

he did speak to him regarding a previous workers’ compensation case related to seizures caused 

by exposure to chemicals. J.B related that appellant stated that he was still having seizures, but 

that they were manageable through medication. He asserted that appellant told him many times 

that he could file a recurrence claim if he felt that there was something in the building that was 

causing him to have seizures again. Appellant, however, told J.B. that he was having them at 

home so he did not know how the work environment could have caused them.

J.B. further advised that, if appellant had produced documentation indicating that he 

could not drive or be near chemicals, then he would not have driven or been near chemicals. He 

stated, however, that appellant had never produced such documentation. J.B. noted that when 

appellant fell off a tow motor on July 27, 2013 he went to the emergency room, but was not 

injured in the fall.

By decision dated September 5, 2014, an OWCP hearing representative affirmed the 

November 7, 2013 decision. He found that appellant failed to submit medical evidence sufficient 

to support a causal relationship between any diagnosed medical condition and the July 27, 2013 

work incident.

On February 10, 2016 appellant, through counsel, requested reconsideration. Counsel

asserted that neither he nor appellant had received the employing establishment’s July 8, 2014 

statement responding to the June 12, 2014 hearing transcript. He argued that this prevented 

appellant from being able to submit a rebuttal to the employing establishment’s statement. 

Counsel argued that OWCP’s hearing representative erred by failing to address this omission and 

by failing to address the issue. He further argued that he did not have a copy of the September 5, 

2014 decision or any other document in appellant’s file because “a representative” of DOL’s

Office of the Inspector General and the Postal Inspection Service took every file from “the 

representative’s” office on October 2, 2014. Lastly, counsel contended that Dr. Weiss’

October 8, 2015 report was sufficient to establish that appellant’s left shoulder and bilateral hip

injuries were causally related to his fall from a PIV on July 27, 2013.
5

In an October 8, 2015 report, received by OWCP on February 10, 2016, Dr. Weiss 

advised that the MRI scans appellant underwent on June 20 and May 28, 2014, in addition to xrays, showed that pain and soreness to the hips and shoulder resulted from blunt trauma, which 

occurred during the July 27, 2013 fall at work due to a seizure. He reiterated his diagnoses of 

toxic encephalopathy with memory loss, seizures, headaches, other cognitive loss, depression, 

visual symptoms, fatigue, and seizure disorder due to encephalopathy.

By decision dated June 10, 2016, OWCP denied appellant’s request for reconsideration 

without a merit review, finding the request as or 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.4 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.5 One such limitation is that the application for 

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

review is sought.6 When a request for reconsideration is untimely, OWCP will undertake a 

limited review to determine whether the application demonstrates clear evidence of error on the 

part of OWCP in its most recent merit decision.7

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 weight of the evidence in favor of the claimant and

raise a substantial question as to the correctness of OWCP’s decision.8

 

4 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).

5 20 C.F.R. § 10.607 (2012).

6

Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for 

reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought for 

merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.4 (October 2011). 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.

7

Id. at § 10.607(b).

8 Robert G. Burns, 57 ECAB 657 (2006).
6

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 (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.9 The Board makes an independent determination of whether a claimant has

demonstrated clear evidence of error on the part of OWCP.10

ANALYSIS

OWCP received appellant’s request for reconsideration on February 10, 2016, which was 

more than one year after the September 5, 2014 merit decision. Counsel claimed that he had not 

received the employing establishment’s July 8, 2014 statement responding to the June 12, 2014 

hearing transcript.

11

 He also asserted, as he did in his appeal to the Board, that neither he nor 

appellant received a copy of the September 5, 2014 decision. The record indicates that OWCP 

mailed the decision to his last known address, which has remained unchanged since he filed his

claim in August 2013. In the absence of evidence to the contrary, it is presumed that a notice 

mailed in the ordinary course of business was received in due course by the intended recipient.

12

 

This presumption is commonly referred to as the “mailbox rule.”

13

 It arises when the record 

reflects that the notice was properly addressed and duly mailed.14 It is, therefore, presumed that 

appellant received the employing establishment’s July 8, 2014 statement and the September 5, 

2014 decision in due course. As such, the Board finds that the request for reconsideration 

OWCP received on February 10, 2016 was untimely filed.

15

 

9

J.S., Docket No. 16-1240 (issued December 1, 2016); Federal (FECA) Procedure Manual, supra note 6 at

Chapter 2.1602.5(a) (February 2016).

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

11 R.W., Docket No. 06-2000 (issued February 22, 2007) (appellant alleged that he was denied due process when 

he was not served with a copy of the employing establishment’s comments following the hearing. While correct that 

OWCP is required to furnish a copy of any comments made by the employing establishment to the employee and 

allot him an additional 20 days to comment under 20 CFR § 10.617(e), the Board notes that this is harmless error. 

In addressing violations of procedural due process under FECA, the Board has held that the opportunity for a 

hearing or reconsideration by OWCP, together with the Board’s review on appeal, constitutes meaningful post 

deprivation processes whereby the government can address procedural errors. See Lan Thi Do, 46 ECAB 

366 (1994).

12 Kenneth E. Harris, 54 ECAB 502, 505 (2003).

13 Id.

14 Id.

15 The Board further finds that counsel’s argument that he lacked a copy of the September 5, 2014 decision or any 

other document in appellant’s file because “a representative” of DOL’s Office of the Inspector General and the 

Postal Inspection Service took his files on October 2, 2014, does not excuse the failure to timely request 

reconsideration. Counsel had ample time to request a copy of the September 5, 2014 decision of OWCP’s hearing 

representative and one year in which to file a timely request for reconsideration. 
7

Because appellant’s request for reconsideration was untimely filed, he must demonstrate 

“clear evidence of error” on the part of OWCP in denying his traumatic injury claim.16 As noted, 

OWCP denied the claim because he failed to submit medical evidence sufficient to establish that 

he sustained an injury causally related to the accepted July 27, 2013 work incident. With his 

request for reconsideration, appellant submitted the October 8, 2015 report from Dr. Weiss, who 

reiterated his previously reported diagnoses and opined that the MRI scans appellant underwent 

on June 20 and May 28, 2014 and x-rays of record showed that pain and soreness to the hips and 

shoulder resulted from blunt trauma which occurred during the July 27, 2013 fall at work due to 

a seizure. This report did not present medical evidence which explained how appellant’s 

diagnosed conditions were caused or aggravated by the July 27, 2013 work incident. It is of 

limited probative value as it did not provide a reasoned medical opinion on the relevant issue; 

i.e., whether appellant met his burden to establish an injury causally related to the accepted 

July 27, 2013 employment incident. 

The term clear evidence of error is intended to represent a difficult standard.17 Even a 

detailed, well-rationalized medical report, which would have created a conflict in medical 

opinion requiring further development if submitted prior to issuance of the denial decision, is 

insufficient to demonstrate clear evidence of error.18 It is not enough to show that evidence 

could be construed so as to produce a contrary conclusion.19 Instead, the evidence must shift the 

weight in appellant’s favor.20

Appellant did not submit medical evidence sufficient 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. Consequently, the Board finds that he has failed to demonstrate clear 

evidence of error on the part of OWCP such that it abused its discretion in denying merit review.

CONCLUSION

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

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

 

16 20 C.F.R. § 10.607(b); 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. Id. 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).

17 D.B., Docket No. 16-1405 (issued January 9, 2017).

18 Id.

19 Leona N. Travis, supra note 16.

20 Id.
8

ORDER

IT IS HEREBY ORDERED THAT the June 10, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 21, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board