United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.R., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Shrewsbury, MA, Employer 

__________________________________________ 

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Docket No. 17-0271 

Issued: April 24, 2017 

Appearances: Case Submitted on the Record 

Katherine Smith, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 16, 2016 appellant, through counsel, filed a timely appeal from a June 3, 

2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision dated October 31, 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, the Board lacks jurisdiction to review the merits of the claim.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

 5 U.S.C. § 8101 et seq. 

3

 With her request for an appeal, appellant submitted additional evidence. However, the Board may not consider 

new evidence on appeal; see 20 C.F.R. § 501.2(c). 
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 January 7, 2014 appellant, then a 61-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that she sprained her left wrist and tendons in her hand when she picked 

up a tray of mail and twisted her wrist. She stopped work on January 7, 2014. 

By letter dated February 25, 2014, OWCP advised appellant that her claim originally 

appeared to be a minor injury which resulted in minimal or no time loss from work. It indicated 

that her claim was administratively handled to allow limited medical payments but the merits of 

the claim had not been formally adjudicated. OWCP advised that, because appellant had not 

returned to work in a full-time capacity her claim would be formally adjudicated. It requested 

that she submit additional information including a comprehensive medical report from her 

treating physician which included a reasoned explanation as to how the specific work factors or 

incidents identified by appellant had contributed to her claimed injury. 

On December 31, 2013 appellant was seen by Dr. Bruce Weinstein, a Board-certified 

internist. Dr. Weinstein noted that appellant had a history of right forearms/wrist tendinitis and 

bilateral carpal tunnel syndrome related to repetitive movements at work. He diagnosed left 

wrist sprain and recommended a wrist brace and light duty.4

Appellant was treated for left wrist pain by Dr. Teli Leung, a Board-certified internist, 

from January 7 to March 13, 2014. Appellant’s history was significant for right forearm/wrist 

tendinitis and bilateral carpal tunnel syndrome. She reported performing repetitive duties using 

her left wrist at work. Dr. Leung diagnosed left wrist sprain/tendinitis aggravated by repetitive 

movements. He returned appellant to light duty avoiding repetitive movements and lifting. 

 By decision dated April 2, 2014, OWCP denied appellant’s claim because the medical 

evidence of record did not establish that the claimed medical condition was causally related to 

the established work-related events. 

On April 14, 2014 appellant requested an oral hearing before an OWCP hearing 

representative which was held on July 30, 2014. She submitted a February 21, 2014 magnetic 

resonance imaging (MRI) scan of the left wrist which revealed an ulnar positive variance, 

triangular fibrocartilage complex tear (TFCC) associated with chondromalacia, mild dorsal 

displacement of the distal ulna, old tiny avulsion fracture of the ulnar styloid, multifocal trace 

extensor tenosynovitis, multifocal saccular dilations along the ulnar neurovascular bundle and 

mild synovitis. 

In reports dated March 25 to April 1, 2014, Dr. Thomas Breen, a Board-certified 

orthopedic surgeon, diagnosed ulnar impaction syndrome and recommended surgery. Appellant 

was treated by Dr. John V. Shufflebarger, a Board-certified orthopedic surgeon, who performed 

 4

 This report was also signed by Dr. Cyrus Nensey, a Board-certified internist. 
3

a steroid injection into the left wrist on April 18, 2014. Dr. Shufflebarger diagnosed 

questionable TFCC degenerative changes. 

In a decision dated October 31, 2014, an OWCP hearing representative affirmed the 

decision dated April 2, 2014. 

In an undated request received on November 2, 2015, appellant requested reconsideration 

of the October 31, 2014 OWCP decision. She requested that her claim be accepted and 

submitted an October 7, 2015 report from Dr. Yael Rosen, a Board-certified internist. Dr. Rosen 

noted that appellant sustained a work-related left wrist injury on December 23, 2013 during the 

course of her work when lifting heavy trays of mail. He noted that appellant was treated by 

Dr. Nensey on December 31, 2013 and was diagnosed with left wrist sprain. Dr. Rosen advised 

that appellant attempted to return to work for one week, but experienced severe pain in the left 

wrist and was unable to perform her job. He noted that a February 21, 2014 MRI scan revealed a 

TFCC tear. Dr. Rosen indicated that due to the job injury appellant was out of work from 

February 2014 to September 2014. 

By decision dated June 3, 2016, OWCP denied appellant’s request for reconsideration as 

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

LEGAL PRECEDENT 

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for 

further merit review.5

 This discretionary authority, however, is subject to certain restrictions. 

For instance, a request for reconsideration must be received within one year of the date of 

OWCP’s decision for which review is sought.6 The Board has found that imposition of this oneyear filing limitation does not constitute an abuse of discretion.7

 OWCP may not deny a reconsideration request solely because it was untimely filed. 

When a claimant’s application for review is untimely filed, OWCP must nevertheless undertake 

a limited review to determine whether it demonstrates clear evidence of error. If an application 

demonstrates clear evidence of error, OWCP must reopen the case for merit review.8

To demonstrate clear evidence of error, a claimant must submit evidence that is relevant 

to the issue that was decided by OWCP,9

 is positive, precise, and explicit, and manifests on its 

face that OWCP committed an error.10 The evidence must not only be of sufficient probative 

 5

 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009). 

6

 20 C.F.R. § 10.607(a). 

7 E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

8 M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (February 2016) (the term “clear evidence of error” 

is intended to represent a difficult standard). 

9 Dean D. Beets, 43 ECAB 1153 (1992). 

10 Leona N. Travis, 43 ECAB 227 (1991). 
4

value to create a conflict in medical opinion or demonstrate a clear procedural error, but must 

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

the correctness of OWCP’s decision for which review is sought. Evidence that does not raise a 

substantial question is insufficient to demonstrate clear evidence of error. It is not enough 

merely to show that the evidence could be construed so as to produce a contrary conclusion. A 

determination of whether the claimant has demonstrated clear evidence of error entails a limited 

review of how the evidence submitted with the reconsideration request bears on the evidence 

previously of record.11

ANALYSIS 

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

application for review. As noted, an application for reconsideration must be received within one 

year of the date of OWCP’s decision for which review is sought.12 As appellant’s request for 

reconsideration was not received by OWCP until November 2, 2015, more than one year after 

issuance of OWCP’s October 31, 2014 decision, it was untimely filed. Consequently, she must 

demonstrate clear evidence of error by OWCP denying her claim for compensation. 

The Board also finds that appellant has failed to demonstrate clear evidence of error. In 

her reconsideration request, appellant disagreed with OWCP’s decision denying her claim for 

compensation. In the reconsideration request, she referenced a new report from Dr. Rosen and 

requested that her claim be accepted based on this new evidence. The Board notes that, while 

appellant addressed her disagreement with OWCP’s decision denying her claim for a traumatic 

injury, her disagreement does not demonstrate clear evidence of error as it does not raise a 

substantial question as to the correctness of OWCP’s most recent merit decision. 

Appellant submitted an October 7, 2015 report from Dr. Rosen who noted that appellant 

had a work-related left wrist injury on December 23, 2013 when lifting heavy trays of mail. 

Dr. Rosen indicated that appellant was treated by Dr. Nensey on December 31, 2013 and was 

diagnosed with left wrist sprain. He advised that appellant attempted to return to work for one 

week but experienced severe pain in the left wrist and was unable to perform her duties. 

Dr. Rosen noted that a February 21, 2014 MRI scan revealed a TFCC tear and opined that due to 

the job injury appellant was out of work from February 2014 until September 2014. While 

Dr. Rosen provided some support for causal relationship, the Board notes that clear evidence of 

error is intended to represent a difficult standard. 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.13 The Board finds 

that this evidence does not rise to the level of clear evidence of error. 

The Board finds that OWCP properly found that appellant’s undated request for 

reconsideration received on November 2, 2015 was untimely filed and failed to demonstrate 

clear evidence of error. 

 11 J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010). 

12 Supra note 6. 

13 D.G., 59 ECAB 455 (2008). 
5

On appeal counsel asserts that appellant timely submitted the request for reconsideration 

of the October 31, 2014 decision. As noted above, a request for reconsideration must be 

received within one year of the date of OWCP’s decision for which review is sought.14 In this 

case, the reconsideration request was received by OWCP on November 2, 2015 and there is no 

evidence in the record at the time of the June 3, 2016 decision that it was timely received. On 

appeal appellant submitted a tracking receipt from the post office; however, the Board may not 

consider new evidence on appeal.15 She further asserted that OWCP failed to properly develop 

her claim. Appellant indicated that she originally filed her claim as a traumatic injury and then 

requested that the claim be converted to an occupational disease but OWCP ignored this request. 

However, as noted, the Board does not have jurisdiction over the merits of the claim. Appellant 

has not presented evidence or argument that raises a substantial question as to the correctness of 

OWCP’s decision for which review is sought. 

CONCLUSION 

The Board finds that appellant’s request for reconsideration was untimely filed and failed 

to demonstrate clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the June 3, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: April 24, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 14 Supra note 6. 

15 Supra note 3.