United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Houston, TX, Employer

__________________________________________

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Docket No. 17-1229

Issued: December 13, 2017

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

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On May 15, 2017 appellant filed a timely appeal from a November 14, 2016 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

elapsed from OWCP’s last relevant merit decision, dated June 27, 2013, 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 over the merits of the claim.

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 As the 180th day for filing the appeal fell on a weekend (Saturday, May 13, 2017), appellant had until the close 

of the next business day (Monday, May 15, 2017) to timely file his appeal. See 20 C.F.R. § 501.3(f)(2). The Clerk 

of the Appellate Boards received the current appeal on May 15, 2017 and, therefore, it is timely filed. Id.

2

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On April 10, 1999 appellant, then a 32-year-old mail handler technician, injured his lower 

back moving a heavy box of mail at work. OWCP initially accepted his traumatic injury claim 

(Form CA-1) for lumbar sprain. It later expanded the claim to include lumbar intervertebral disc 

displacement and lumbosacral neuritis. Appellant received compensation for intermittent wage

loss, as well as for periods of temporary total disability. OWCP also granted a schedule award 

for six percent permanent impairment of his left lower extremity. Appellant last worked for the 

employing establishment on or about April 15, 2010.3 OWCP paid wage-loss compensation for 

temporary total disability beginning April 16, 2010 and subsequently placed him on the periodic 

compensation rolls.

Appellant received periodic medical treatment from an attending Board-certified

orthopedic surgeon, Dr. Howard B. Cotler. In a March 29, 2011 report, Dr. Cotler diagnosed 

“workers’ compensation upper and lower back injury” and chronic narcotics and muscle relaxer 

usage, and indicated that appellant did not appear to be disabled from work. 

In March 2012, OWCP referred appellant for a second opinion examination by

Dr. James E. Butler, III, a Board-certified orthopedic surgeon. It requested that Dr. Butler 

evaluate whether appellant continued to have residuals of his April 10, 1999 work injury and 

whether he could work in any capacity.

In a March 26, 2012 report, Dr. Butler discussed appellant’s factual and medical history 

and reported the findings of the physical examination he conducted on that date. He diagnosed 

degenerative disc disease at C4-5, C5-6, C6-7, L3-4, L4-5, and L5-S1 and found that appellant’s 

back condition prevented him from performing his regular work as a mail handler. However,

Dr. Butler opined that appellant could work for eight hours per day subject to specific restrictions 

which he outlined in a March 26, 2012 Work Capacity Evaluation form (Form OWCP-5c). 

In June 2012, appellant began participating in an OWCP-sponsored vocational 

rehabilitation program, but ultimately he did not return to work.4

On January 7, 2013 Dr. Butler indicated that, since he had examined appellant on

March 26, 2012, he had reviewed surveillance video which showed appellant walking briskly 

and bending over on several occasions without any limitations, difficulties, or residual 

problems.5 He noted that, based on the new information, it was his opinion that appellant could 

 

3 As of April 15, 2010, the employing establishment was either unable or unwilling to accommodate appellant’s 

then-current work restrictions. 

4 Effective December 7, 2012, the employing establishment terminated appellant’s services because he was 

unable to perform the essential functions of his position. 

5

Several investigative reports of the Office of Inspector General (OIG) for the employing establishment were 

added to the record in 2011 and 2013. The reports detailed observations made by OIG investigators of appellant’s 

activities at his home and while running errands between late 2010 and early 2013. The investigators observed 

appellant engaging in such activities as carrying boxes and buckets and sweeping garbage at his home without 

apparent difficulty. An OWCP telephone conversation record shows that an OIG agent called an OWCP claims 

examiner on January 9, 2013 and advised that he had shown Dr. Butler an investigative tape regarding appellant’s 

activities. 
3

accomplish more than was previously believed and that he could return to work without 

restriction. 

In February 2013, OWCP referred appellant for a second opinion examination to

Dr. Ivan J. Antosh, a Board-certified orthopedic surgeon. It asked Dr. Antosh to determine 

whether appellant continued to have residuals of his April 10, 1999 work injury and to comment 

on his ability to work. 

In a March 15, 2013 report, Dr. Antosh detailed appellant’s factual and medical history 

and reported the findings of the physical examination he carried out on that date. He indicated 

that, upon physical examination, appellant had normal sensation in his lower extremities, and 5/5 

strength in the muscle groups of his lower extremities. Straight leg raise testing was negative on 

a bilateral basis. Dr. Antosh found that lumbar motion was within limits except for mild 

limitation in lateral rotation. He determined that, given the benign physical examination, he had 

concluded that appellant ceased to have residuals of his April 10, 1999 employment injury. 

Dr. Antosh determined that appellant did not have any activity limitations. He did not believe 

that appellant needed further treatment and indicated that he could be released to full-duty work 

immediately. 

OWCP requested that appellant’s physician, Dr. Colter, review Dr. Antosh’s March 15, 

2013 report and provided him with a form asking Dr. Colter whether he agreed with

Dr. Antosh’s findings. On April 8, 2013 Dr. Cotler signed and dated the portion of the form 

indicating that he agreed with Dr. Antosh’s March 15, 2013 findings. 

In a May 7, 2013 letter, OWCP advised appellant that it proposed to terminate his wageloss compensation and medical benefits because he ceased to have residuals of his April 10, 1999 

employment injury. It indicated that the proposed termination action was based on the 

March 15, 2013 report of Dr. Antosh and the April 8, 2013 report of Dr. Cotler. 

In a June 27, 2013 decision, OWCP finalized the termination of appellant’s wage-loss 

compensation and medical benefits effective June 30, 2013. 

On September 6, 2016 appellant requested reconsideration of the June 27, 2013 decision. 

He argued that, between 2010 and 2013, the OIG for the employing establishment carried out an 

investigation of him which he believed constituted retaliation for his September 2009 filing of an 

Equal Employment Opportunity (EEO) claim/complaint against management for discrimination, 

harassment, and improper contact with his attending physician. Appellant discussed occasions 

when OIG agents had contact with OWCP officials, including an instance in January 2013 when 

an OIG agent spoke to an OWCP claims examiner regarding an investigative tape reviewed by

Dr. Butler, and argued that these contacts prejudiced OWCP’s obtaining of evidence regarding 

his medical condition and ability to work. He discussed Board cases in which it was found that 

contacts by OIG officials impermissibly prejudiced the perceptions of claimants by examining 

physicians. Appellant asserted that an attached August 8, 2014 Initial Decision of the Merit 

Systems Protection Board (MSPB) showed clear evidence of error in OWCP’s June 27, 2013 

decision. He indicated that the MSPB decision contained a finding that Dr. Antosh’s March 15, 

2013 report was of limited probative value with respect to its finding that he could return to 

regular duty and, therefore, this report could not serve as a basis for terminating his wage-loss 

compensation and medical benefits effective June 30, 2013.
4

In its August 8, 2014 Initial Decision, the Dallas Regional Office of the MSPB 

considered appellant’s appeal of the employing establishment’s November 26, 2012 Letter of 

Decision removing him from employment on December 7, 2012 due to his failure to perform the 

essential functions of his position.6 It found that the employing establishment was justified in 

taking this action because the evidence showed that he could not perform the essential functions 

of his position. The MSPB evaluated Dr. Antosh’s March 15, 2013 report and found it to be “of 

limited probative weight” with respect to its finding that appellant could return to full-time work 

without restrictions. 

Appellant submitted other documents, including a copy of OWCP’s June 27, 2013 

decision, a statement he sent to a Congressional representative, a May 15, 2012 e-mail from an 

employing establishment official concerning a search for suitable work, a July 10, 2013 

document concerning health benefits enrollment, the record of a June 15, 2010 conversation 

between an employing establishment official and an OWCP official regarding the content of

various Duty Status Reports (Form CA-17) from 2009 and 2010, and a January 25, 2010 Form 

CA-17 in which an attending physician recommended work restrictions. He also submitted a 

record of a March 5, 2012 telephone conversation between an OIG investigator, and an OWCP 

official regarding the possibility of arranging an impartial medical examination.7

In a November 14, 2016 decision, OWCP denied appellant’s request for reconsideration, 

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

the September 6, 2016 request for reconsideration was received more than one year after the 

issuance of the June 27, 2013 decision. OWCP also found that the evidence and argument 

appellant submitted in connection with his untimely reconsideration request did not demonstrate 

clear error in its June 27, 2013 decision. 

LEGAL PRECEDENT

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

it will review an award for or against compensation. 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. The Secretary, in accordance with the facts found on review, may end, decrease or 

increase the compensation awarded; or award compensation previously refused or discontinued.8

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

authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the 

implementing regulations provide that an application for reconsideration must be received within 

 

6 Appellant submitted a November 26, 2012 Letter of Decision in which the employing establishment advised that 

a review of evidence showed that its issuance of a November 7, 2012 Notice of Proposed Separation was justified 

and that he would be removed from the employing establishment on December 7, 2012 due to his failure to perform 

the essential functions of his position. The decision noted that he had not worked as a mail processing clerk since 

April 16, 2010. 

7 Appellant resubmitted the record of a January 9, 2013 telephone conversation between an OIG agent and an 

OWCP claims examiner. 

8

5 U.S.C. § 8128(a).
5

one year of the date of OWCP’s decision for which review is sought.9 However, OWCP will 

reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the 

claimant’s application for review demonstrates clear evidence of error on the part of OWCP in 

its most recent merit decision. To demonstrate clear evidence of error, a claimant must submit 

evidence relevant to the issue that was decided by OWCP. The evidence must be positive, 

precise, and explicit and must be manifest on its face that OWCP committed an error.10

The evidence submitted must not only be of sufficient probative value to create a 

conflicting medical opinion or establish a clear procedural error, but must be of sufficient 

probative value to shift the weight of the evidence in favor of the claimant and raise a substantial 

question as to the correctness of OWCP’s decision.

11

 The Board notes that clear evidence of 

error is intended to represent a difficult standard.12 Evidence that does not raise a substantial 

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

evidence of error.13 It is not enough merely to establish that the evidence could be construed so 

as to produce a contrary conclusion.14 This entails a limited review by OWCP of the evidence 

previously of record and whether the new evidence demonstrates clear error on the part of 

OWCP.15 The Board makes an independent determination as to whether a claimant has 

demonstrated clear evidence of error on the part of OWCP.16

ANALYSIS

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

request for reconsideration. An application for reconsideration must be received within one year 

of the date of OWCP’s decision for which review is sought.17 As appellant’s request for 

reconsideration was not received by OWCP until September 6, 2016, more than one year after 

issuance of its June 27, 2013 merit decision, it was untimely filed. Consequently, he must 

demonstrate clear evidence of error by OWCP in its June 27, 2013 decision.18

 

9

20 C.F.R. § 10.607(a).

10 Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

11 Annie L. Billingsley, 50 ECAB 210 (1998).

12 R.K., Docket No. 16-0355 (issued June 27, 2016).

13 Jimmy L. Day, 48 ECAB 652 (1997).

14 Id.

15 Id.

16 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

17 See supra note 9.

18 See supra note 10. In its June 27, 2013 decision, OWCP terminated appellant’s wage-loss compensation and 

medical benefits, effective June 30, 2013, finding that he had no residuals of his April 10, 1999 work injury after 

that date. It based the termination action on the March 15, 2013 report of Dr. Antosh, an OWCP referral physician,

and the April 8, 2013 report of Dr. Cotler, an attending physician.
6

Appellant has not demonstrated clear evidence of error on the part of OWCP in issuing 

its June 27, 2013 decision. 

Appellant failed to submit the type of positive, precise, and explicit evidence which 

manifests on its face that OWCP committed an error in its June 27, 2013 decision.19 His 

contentions mostly made reference to evidence previously of record and already considered. The 

evidence and argument appellant submitted did not raise a substantial question concerning the 

correctness of OWCP’s decision.20 He noted that, between 2010 and 2013, the OIG for the 

employing establishment carried out an investigation of his activities and that OIG agents had 

contact with OWCP officials, including an instance in January 2013 when an OIG agent spoke to 

an OWCP claims examiner and advised that he had shown Dr. Butler an investigative tape 

regarding appellant’s activities. Appellant argued that these contacts prejudiced OWCP’s 

obtaining of evidence regarding his medical condition and ability to work. The Board notes that 

this argument does not demonstrate clear evidence of error by OWCP in its June 27, 2013 

termination decision. The termination of appellant’s compensation was based on the opinions of

Dr. Antosh and Dr. Colter and appellant has not demonstrated any error in the development of 

the medical evidence associated with those findings. 

Appellant also argued that an attached August 8, 2014 Initial Decision of the MSPB 

showed clear evidence of error in OWCP’s June 27, 2013 decision. In its decision, the MSPB 

considered his appeal of the employing establishment’s removal of him from employment on 

December 7, 2012 due to his failure to perform the essential functions of his position.21 It found 

that the employing establishment was justified in taking this action because the evidence showed 

that appellant could not perform the essential functions of his position. The MSPB evaluated

Dr. Antosh’s March 15, 2013 report and found it to be “of limited probative weight” with respect 

to its finding that he could return to full-time work without restrictions. However, appellant’s 

highlighting of this aspect of its decision does not show clear evidence of error in OWCP’s 

June 27, 2013 decision because the Board has long held that determinations by other federal 

agencies do not establish entitlement to benefits under FECA.22

Appellant submitted other documents, including a copy of OWCP’s June 27, 2013 

decision, a statement he sent to a Congressional representative, a May 15, 2012 e-mail from an 

employing establishment official concerning a search for suitable work, a July 10, 2013 

document concerning health benefits enrollment, and the record of a June 15, 2010 conversation 

between an employing establishment official and an OWCP official regarding the contents of 

CA-17 forms from 2009 and 2010. He also submitted records of March 5, 2012 and January 9, 

2013 telephone conversations between OIG investigators and OWCP officials.

 

19 See supra note 10.

20 See supra note 13.

21 Appellant submitted a November 26, 2012 Letter of Decision in which the employing establishment advised 

that a review of evidence showed that its issuance of a November 7, 2012 Notice of Proposed Separation was 

justified and that he would be removed from the employing establishment on December 7, 2012 due to his failure to 

perform the essential functions of his position. 

22 See Donald Johnson, 44 ECAB 540, 551 (1993).
7

However, the submission of this evidence would not raise a substantial question as to the 

correctness of OWCP’s June 27, 2013 decision. The main issue of this case is essentially 

medical in nature, i.e., whether OWCP presented sufficient medical evidence to justify 

termination of appellant’s compensation and medical benefits. This nonmedical evidence would 

not tend to demonstrate clear evidence of error in the medical determination OWCP made in its 

June 27, 2013 decision.23

The Board finds that appellant’s application for review does not show on its face that 

OWCP committed error in its June 27, 2013 decision, which terminated his wage-loss 

compensation and medical benefits, effective June 30, 2013.

24

 As noted, clear evidence of error 

is intended to represent a difficult standard.25 

For these reasons, the evidence submitted by appellant does not raise a substantial 

question concerning the correctness of OWCP’s June 27, 2013 decision and OWCP properly 

determined that he did not show clear evidence of error in that decision.

CONCLUSION

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

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

 

23 The March 5, 2012 and January 9, 2013 telephone conversations between OIG investigators and OWCP 

officials do not bear any relation to the opinions of Dr. Antosh and Dr. Colter upon which OWCP relied for its 

termination action. Appellant also submitted a January 25, 2010 Form CA-17 in which an attending physician 

recommended work restrictions. However, this report was produced well before the 2013 reports of Dr. Antosh and

Dr. Colter and is not relevant to the assessment of the medical evidence in 2013. 

24 See S.F., Docket No. 09-0270 (issued August 26, 2009).

25 See supra note 12.
8

ORDER

IT IS HEREBY ORDERED THAT the November 14, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.26

Issued: December 13, 2017

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

26 Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board 

effective December 11, 2017.