United States Department of Labor

Employees’ Compensation Appeals Board

_________________________________________

L.W., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Oakland, CA 

Employer

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Docket No. 16-1202

Issued: January 25, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 22, 2016 appellant filed a timely appeal from an April 6, 2016 nonmerit 

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

elapsed from OWCP’s most recent merit decision, dated September 4, 2014, 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 appellant’s claim.2

ISSUE

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

the merits of her claim under 5 U.S.C. § 8128(a). 

 

1 5 U.S.C. § 8101 et seq.

2 The record on appeal includes evidence received after OWCP issued its April 6, 2016 decision. The Board’s 

jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision. 20 C.F.R. 

§ 501.2(c)(1). Therefore, the Board is precluded from reviewing this additional evidence for the first time on 

appeal. Id. 
2

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

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

follows.

In 1992, appellant, then a 37-year-old mail processing clerk, filed an occupational disease 

claim (Form CA-2) alleging an injury to her upper extremity on or about December 23, 1987. 

OWCP accepted the claim for bilateral carpal tunnel syndrome, right lateral epicondylitis, and 

left shoulder calcifying tendinitis.

4

 On November 25, 2008 OWCP found that appellant’s actual 

earnings as a modified mail processing clerk fairly and reasonably represented her wage-earning 

capacity.5 Appellant subsequently lost her limited-duty assignment due to the employing 

establishment’s National Reassessment Process (NRP).6 She failed a claim for wage-loss 

compensation (Form CA-7) beginning December 2, 2009, which OWCP denied by decision 

dated October 29, 2010.7 The Board subsequently set aside OWCP’s denial of wage-loss 

compensation, and remanded the case for further development to determine whether the loss of 

limited-duty work under the NRP warranted modification of the November 25, 2008 LWEC 

determination.8

By decision dated April 11, 2013, OWCP denied modification of its November 25, 2008 

LWEC determination. It similarly denied modification of its prior LWEC determination by 

merit decisions dated September 17, 2013, May 28, and September 4, 2014.

On October 1, 2014 appellant again requested reconsideration, which OWCP denied by 

decision dated March 19, 2015.9

Appellant appealed to the Board and, by December 4, 2015 decision, the Board affirmed 

OWCP’s March 19, 2015 decision, finding that OWCP properly considered appellant’s 

 

3 Docket No. 00-1097 (issued April 26, 2002); petition for recon. denied, Docket No. 00-1097 (issued 

October 17, 2002); Docket No. 04-1195 (issued February 2, 2005).

4 Under OWCP File No. xxxxxx424, appellant also has an accepted occupational disease claim for right trapezius 

strain.

5 OWCP determined that appellant had zero loss of wage-earning capacity (LWEC) because her then-current 

wages as a modified mail processing clerk exceeded the current wages of her date-of-injury position.

6 Effective January 31, 2011, appellant resumed limited-duty work as a general clerk.

7 OWCP determined that appellant had not established a basis for modifying the November 25, 2008 LWEC 

determination. That decision was subsequently affirmed by a representative of OWCP’s Branch of Hearings and

Review and, in a March 12, 2012 decision, OWCP denied modification of the hearing representative’s February 17, 

2011 decision.

8 Docket No. 12-1001 (issued January 15, 2003).

9 Appellant submitted the appeal request form that accompanied OWCP’s September 4, 2014 decision. She also 

submitted a September 19, 2014 letter requesting reconsideration. OWCP received both documents on 

October 1, 2014.
3

September 2014 filing as a request for reconsideration of the last merit decision, rather than a 

request for modification of the November 25, 2008 LWEC determination.10 The Board further 

found that appellant failed to satisfy the criteria for a timely request for reconsideration under 20 

C.F.R. § 10.606(b)(3).

On January 11 and March 1, 2016 appellant again requested reconsideration. Additional 

evidence received following OWCP’s March 19, 2015 nonmerit decision included July 20 and 

21, 2015 bilateral shoulder magnetic resonance imaging (MRI) scans, December 2015 physical 

therapy treatment notes, and an October 22, 2015 medical report containing work restrictions 

from Dr. Michael E. Hebrard, a Board-certified physiatrist. Dr. Hebrard noted that he examined 

appellant and determined that she had functional deficits that have been accelerated in the course 

of her employment. He opined, “[I]t is my opinion to a reasonable degree of medical certainty 

on a more probable than not basis, that the patient’s ongoing condition is a permanent 

aggravation of her underlying condition due to the repetitive nature of her job as a mail handler.”

Dr. Hebrard explained that his diagnostic tests provided objective findings, which were 

consistent with appellant’s clinical presentation with restricted range of motion of the 

glenohumeral joint, which was evidenced by clinical adhesive capsulitis, i.e., frozen shoulder 

syndrome and he advised that “[g]iven the type of cumulative trauma that she is exposed to at the 

job with the repetitive keying and typing and her arms away from her trunk and elevated above 

shoulder level working at the computer, leads to ongoing cumulative mechanical impingement of 

the rotator cuff interval, which is consistent with inflammatory changes that she is currently 

having and also the documented severe degeneration of the labrum.” He further opined that 

appellant had “a chronic disabling condition, which continued to be aggravated in the course of 

her employment with the job that she was currently involved in as a result of her federal 

employment with repetitive reaching at and above shoulder level, and also with the 

ergonomically challenging situation that she has described to me. Dr. Hebrard concluded, “[i]t is 

my opinion to a reasonable degree of medical certainty on a more probable than not basis that 

there is a causal relationship between what she has described to me as her work environment and 

the clinical presentation today.” He noted that appellant had issues with carpal tunnel syndrome 

and clinical presentation was with paresthesias in the median nerve distribution and subsequent 

weakness on clinical examination and positive provocative testing such as Tinel’s tapping only 

the median nerve on the volar aspect of the distal wrist. Dr. Hebrard recommended physical 

therapy and an ergonomic work station to reduce the amount of stress on her shoulders. He 

returned her to work with her previous restrictions. The restrictions included no reaching above 

shoulder level and no repetitive reaching at or below the shoulder level and no lifting over 10 

pounds.

In a December 14, 2015 letter, appellant argued that “[R.M., the employing 

establishment’s health and resource manager,] noted that a grievance was settled [and] appellant 

was awarded a bid as a general clerk and continued to work in that capacity.” She explained that 

this was not true and that there was no grievance filed pertaining to her need to bid on the 

general clerk’s position. Appellant further explained that she had filed a grievance after 

receiving the bid and the employing establishment would not allow her to return to work. She

argued that the job must be a bona fide position, not a temporary one, to qualify for 

 

10 Docket No. 15-0990 (issued December 4, 2015).
4

determination of an LWEC. Appellant argued that the job was a temporary, make-shift position.

She noted that many grievances had been filed in reference to being put off work. Appellant also 

argued that no one had addressed her right shoulder, which was included in her claim.

In a letter dated January 4, 2016, appellant argued that the Board’s December 4, 2015 

decision “was not based on facts.” She requested reconsideration of all decisions pertaining to 

this claim.” Appellant repeated her arguments contained in previous correspondences.

In a letter dated February 24, 2016, received on March 1, 2016, appellant requested 

reconsideration of her LWEC determination. She provided and referred to a vacancy notice bid 

assignment dated August 10, 2010 for Clerk Craft No. 27979 and job ID #96682843. Appellant

explained that the position was vacated by P.W. and she was the successful bidder. She argued 

that it was not a true statement, as claimed by R.M., that a grievance was settled and she had then

been awarded a bid as a general clerk and continued to work in that capacity. Appellant 

explained that her grievance was filed months after the bidding took place. She argued that

R.M.’s statement caused her unnecessary pain and suffering as well as physical and financial 

pain over the years. Appellant argued that she was not allowed to go back to work despite being 

the successful bidder. She indicated her grievance date was February 2011. She also indicated 

that the supervisor and grievance specialist, F.G., confirmed that the modified-duty position was 

“make-shift work, not necessary, and that the tasks were assigned to employees/workers with 

bids as the reasons it terminated.” Appellant also explained what a real job was, which included 

having an I.D. number, occupational code, and job descriptions. Furthermore, they were vacated 

and or abolished and not terminated unless the employees quit or were fired, and then the bid 

was reposted. She argued that was not her case and they issued an LWEC and then the “job 

terminated because it was not bona-fide.” Appellant reiterated that she bid to get back to work 

from December 2, 2009 until January 9, 2011 and she was the successful bidder. She again

questioned what happened to the right shoulder aspect of her claim.

By decision dated April 6, 2016, OWCP denied appellant’s “[January 11, 2016]” request 

for reconsideration, finding that the evidence submitted was insufficient to warrant review of the 

“[December 4, 2015]” decision. It found that the evidence was cumulative and repetitive and 

thus substantially similar to evidence or documentation already contained in the case file and 

previously considered.

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation and it provides that the Secretary of Labor 

may review an award for or against payment of compensation at any time on his or her own 

motion or on application.11

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

authority under 5 USC § 8128(a). As one such limitation, 20 CFR § 10.607(a) provides that an 

 

11 5 U.S.C. § 8128(a). 
5

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

OWCP’s decision for which review is sought.12

OWCP procedures require a review of the file to determine whether the application for 

reconsideration was received within one year of a merit decision. 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, but does not 

include prerecoupment hearing decisions.13 Timeliness is determined by the document receipt 

date of the reconsideration request (the received date in the integrated Federal Employees 

Compensation System (iFECS)). If the request for reconsideration has a document received date 

greater than one year, the request must be considered untimely.14

OWCP will consider an untimely application only if the application demonstrates clear 

evidence of error on the part of it in its most recent merit decision. The application must 

establish, on its face, that such decision was erroneous.15

The term clear evidence of error is intended to represent a difficult standard.16 If clear 

evidence of error has not been presented, OWCP should deny the application by letter decision, 

which includes a brief evaluation of the evidence submitted and a finding made that clear 

evidence of error has not been shown.17

ANALYSIS

The only decision before the Board in this appeal is the April 6, 2016 OWCP decision 

denying appellant’s request for reconsideration, a decision which found that the evidence of 

record was insufficient to warrant a merit review. The Board finds that the case is not in posture 

for decision.

The Board notes that on November 25, 2008 OWCP found that appellant’s actual 

earnings fairly and reasonably represented her wage-earning capacity. In merit decisions dated 

April 11 and September 17, 2013, and May 28 and September 4, 2014, it denied her requests for 

modification of the LWEC determination. Appellant again requested reconsideration on

January 4, 2016, although her request was received on January 11, 2016. Appellant repeated her 

request for reconsideration on February 24, 2016. As a general rule, if a formal LWEC 

 

12 20 C.F.R. § 10.607(a). 

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4.b (October 2011).

14 Id. at Chapter 2.1602.4.b (October 2011). 

15 20 C.F.R. § 10.607. 

16 Supra note 13 at Chapter 2.1602.5.a (October 2011).

17 Id. at Chapter 2.1602.5.b. 
6

determination has been issued, the rating should be left in place unless the claimant requests 

resumption of compensation for total wage loss. In that instance, the claims examiner should 

evaluate the request according to the customary criteria for modifying a formal LWEC.

18

 

Nonetheless, in cases where arguments submitted have previously been addressed by OWCP and 

in which a claimant submits no new or relevant evidence, OWCP may address the request under 

the provisions found in section 8128 of FECA and deny merit review.19 The Board finds that 

OWCP properly handled this case as a request for reconsideration rather than a request for 

modification of the LWEC determination. 

The last merit decision was issued on September 4, 2014. As the appeal rights attached 

to that decision explained, appellant had one-calendar year from the date of that decision to 

ensure receipt by OWCP of any reconsideration request. OWCP received appellant’s 

January 4, 2016 request for reconsideration on January 11, 2016. Appellant repeated her request 

for reconsideration on February 24, 2016. As the received date was more than one year beyond 

September 4, 2014, appellant’s request must be considered untimely. The proper standard of 

review for an untimely reconsideration request is the clear evidence of error standard. 

In denying appellant’s reconsideration request, OWCP applied the standard of review for 

timely requests for reconsideration.20 As OWCP applied the incorrect standard of review to the 

untimely request for reconsideration, the Board will set aside OWCP’s April 6, 2016 decision 

and remand the case for proper review under the clear evidence of error standard as required by 

regulations.21

CONCLUSION

The Board finds that OWCP improperly denied appellant’s January 11, 2016 

reconsideration pursuant to 5 U.S.C. § 8128(a).22

 

18 Katherine T. Kreger, 55 ECAB 633 (2004).

19 A.P., Docket No. 14-0851 (issued September 2, 2014). See also G.A., Docket No. 14-1505 (issued 

November 5, 2014).

20 H.L., Docket No. 13-2077 (issued March 20, 2014) (the Board set aside and remanded the case on the grounds 

that appellant’s request was untimely and its generic decision failed to discuss or evaluate the particular evidence 

and argument appellant presented to support her request). 

21 See 20 C.F.R. § 10.607(b). 

22 On appeal appellant essentially repeated her arguments from her reconsideration requests. However, the case is 

not in posture for decision. Appellant may request modification of the LWEC determination, supported by new 

evidence or argument, at any time before OWCP.
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ORDER

IT IS HEREBY ORDERED THAT the April 6, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further consideration 

under the clear evidence of error standard. 

Issued: January 25, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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