United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Milwaukee, WI, Employer

__________________________________________

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Docket No. 17-1452

Issued: October 25, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 19, 2017 appellant filed a timely appeal from a December 23, 2016 nonmerit 

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

elapsed from December 4, 2015, the date of the most recent merit decision, 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.

ISSUE

The issue is whether OWCP properly denied appellant’s December 6, 2016 request for 

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

FACTUAL HISTORY

On November 20, 2014 appellant, then a 60-year-old mail handler, filed a traumatic 

injury claim (Form CA-1) alleging that she sustained a right shoulder injury on October 25, 2014 

 

1

5 U.S.C. § 8101 et seq.
2

while loading an overloaded trailer. She stopped work on October 26, 2014. The employing 

establishment controverted continuation of pay, noting that the medical evidence did not support 

temporary total disability. 

In support of her claim, appellant submitted several reports from nurse practitioners dated 

between October 28 and November 18, 2014.

By letter dated December 5, 2014, OWCP informed appellant of the factual and medical 

evidence necessary to establish her claim. It noted that she had submitted evidence from nurse 

practitioners, who were not considered physicians under FECA.

2 Appellant was afforded 30 

days to submit the necessary evidence.

In response, appellant submitted notes from physical therapists and nurses dated 

November 3 to December 17, 2014.

OWCP also received a note dated December 17, 2014 from Dr. John P. Wall, a specialist 

in family medicine. Dr. Wall diagnosed right shoulder patellar tendinitis and prescribed a work 

specialty rehabilitation program. In another note of the same date, he recommended restrictions 

of working no more than four hours daily for five days per week; no lifting over 15 pounds in 

each arm; and no pushing and pulling of either arm.

By decision dated January 8, 2015, OWCP denied appellant’s claim for compensation. It 

found that appellant had submitted insufficient evidence to establish causal relationship between 

the accepted October 25, 2014 employment incident and her diagnosed right shoulder condition.

Appellant continued to submit reports dated December 31, 2014 to February 11, 2015 

from nurse practitioners and physical therapists.

On May 19, 2015 OWCP received appellant’s request for reconsideration of OWCP’s 

January 8, 2015 decision. With her request, she included a narrative statement, clarifying that 

her date of injury was on October 25, 2014, and that her claim was for a traumatic injury.

On December 4, 2015 OWCP reviewed the merits of appellant’s claim, but denied 

modification of its January 8, 2015 decision as appellant still had not submitted sufficient 

evidence to establish causal relationship.

On March 3, 2016 OWCP received a report dated November 6, 2015, from Dr. Dennis R. 

Anderson, Board-certified in emergency medicine, who examined appellant and diagnosed 

plantar fasciitis of the right foot. Dr. Anderson noted that on November 1, 2015 appellant

noticed some pain in her right distal heel, but did not recall an acute injury.

By letter received by OWCP on December 6, 2016, appellant requested reconsideration 

of OWCP’s December 4, 2015 decision. She did not provide additional evidence or a narrative 

statement with her request for reconsideration.

 

2

Supra note 1.
3

By decision dated December 23, 2016, OWCP denied appellant’s request for 

reconsideration. It found that her request 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.3 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.4 Timeliness is determined by the document receipt date (i.e., the 

“received date” in OWCP’s Integrated Federal Workers’ Compensation System.5 The Board has 

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

discretionary authority granted OWCP under section 8128(a) of FECA.6

OWCP may not deny an application for review solely on the grounds that the application 

was not timely filed. When an application for review is untimely filed, it must nevertheless 

undertake a limited review to determine whether the application establishes clear evidence of 

error.7 OWCP 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 shows clear evidence of error on the part of OWCP.8

To establish clear evidence of error, a claimant must submit evidence relevant to the issue 

which was decided by OWCP.9 The evidence must be positive, precise and explicit and must 

manifest on its face that OWCP committed an error.10 Evidence which does not raise a 

substantial question concerning the correctness of OWCP’s decision is insufficient to establish 

clear evidence of error.11 It is not enough merely to show that the evidence could be construed 

 

3

20 C.F.R. § 10.607(a).

4

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).

5

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

6

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

7

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

8

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 

2.1602.5(a) (February 2016). OWCP’s procedure further provides, “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 a 

mistake. For example, a claimant provides proof that a schedule award was miscalculated, such as a marriage 

certificate showing that the claimant had a dependent but the award was not paid at the augmented rate.”

9

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

10 20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

11 See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).
4

so as to produce a contrary conclusion.12 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.13

The Board makes an independent determination of whether a claimant has submitted 

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

review in the face of such evidence.14 In order to establish clear evidence of error, 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.15

ANALYSIS

In its December 23, 2016 decision, OWCP properly determined that appellant failed to 

file a timely application for review. Its regulations provide that the one-year time limitation 

period for requesting reconsideration begins on the date of the last merit decision.16 The last 

merit decision in this case was dated December 4, 2015. One year from December 4, 2015 was 

Sunday, December 4, 2016. As this fell on a Sunday, appellant’s reconsideration request was 

due on Monday, December 5, 2016. Because appellant’s request for reconsideration was 

received by OWCP on Tuesday, December 6, 2016, OWCP properly determined that it was 

untimely filed. Therefore, appellant must demonstrate clear evidence of error with regard to the 

decision of December 4, 2015.

The Board finds that appellant has not demonstrated clear evidence of error with regard 

to OWCP’s December 4, 2015 decision. She did not submit the type of positive, precise, and 

explicit evidence manifesting on its face that an error was committed in the denial of her claim.

17

The only document received by OWCP between December 4, 2015 and December 23, 

2016 was a medical report from Dr. Anderson diagnosing appellant with plantar fasciitis and the 

December 6, 2016 request for reconsideration. The medical report from Dr. Anderson is 

irrelevant to this claim as it concerns a medical condition of a separate body part, unrelated to the 

claimed right shoulder injury. As such, appellant has not submitted any relevant medical 

evidence that raises a substantial question concerning the correctness of OWCP’s December 4, 

2015 decision.

 

12 See Leona N. Travis, supra note 10.

13 See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

14 See Pete F. Dorso, 52 ECAB 424, 427 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

15 See Velvetta C. Coleman, 48 ECAB 367, 370 (1997).

16 20 C.F.R. § 10.607(a).

17 Supra note 10. 
5

For these reasons, OWCP properly found that appellant’s request for reconsideration was 

untimely filed, and determined that appellant did not demonstrate clear evidence of error in that 

decision.

CONCLUSION

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

the merits of her claim, finding that it was untimely filed and failed to demonstrate clear 

evidence of error.

ORDER

IT IS HEREBY ORDERED THAT the December 23, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 25, 2017

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