United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.F., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Houston, TX, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-0250

Issued: July 6, 2018

Appearances: Case Submitted on the Record

Joyce Fuller, for the appellant1

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 November 15, 2017 appellant, through his representative, filed a timely appeal from a 

September 28, 2017 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than one year has elapsed since the last merit decision dated April 22, 2002 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 case.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 For OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. See 

20 C.F.R. § 501.3(d)(2) (2008). 
2

ISSUES

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

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

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances set forth in 

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

On August 20, 2000 appellant, then a 47-year-old mail processor, filed a traumatic injury 

claim (Form CA-1) alleging that, on August 9, 2000, he sustained shoulder injury, clavicle strain, 

and right rotator cuff injury when a coworker tapped him on his injured shoulder at work, which 

caused him to go to his knees. OWCP assigned the claim File No. xxxxxx381.5 By merit decisions 

dated November 22, 2000, May 29, 2001, and April 22, 2002, it denied the claim, finding the 

medical evidence of record was insufficient to establish that the diagnosed conditions were 

causally related to the August 9, 2000 employment incident.6

 

4 Docket No. 04-2283 (issued December 21, 2005); Docket No. 07-0978 (issued August 17, 2007); Docket No. 

08-0271 (issued June 20, 2008); Docket No. 09-1027 (issued December 17, 2009); Docket No. 10-2378 (issued 

August 16, 2011); Docket No. 12-1749 (issued February 5, 2013); Docket No. 14-1589 (issued November 24, 2014); 

Docket No. 16-0871 (issued June 10, 2016). 

5 The record indicates that under OWCP File No. xxxxxx590 appellant had a May 3, 2000 claim accepted for right 

shoulder strain. Under OWCP File No. xxxxxx559, he had a September 18, 1991 claim accepted for left elbow lateral 

epicondylitis, left shoulder adhesive capsulitis, left brachial plexus lesions, left tenosynovitis of the hand/wrist and 

sprain/strains of the right shoulder, upper arm and acromioclavicular (AC) joint. The September 18, 1991 claim has 

been established as a master file with both the May 3, 2000 and the current August 9, 2000 claim on appeal as 

subsidiary files.

6

In a decision dated December 21 2005, the Board affirmed an August 27, 2004 OWCP decision, finding that 

appellant’s request for reconsideration was untimely filed and failed to demonstrate clear evidence of error. Docket 

No. 04-2283 (issued December 21, 2005). In a decision dated August 17, 2007, the Board dismissed the appeal as 

there was no final decision issued by OWCP within one year of the filing of the appeal. Docket No. 07-0978 (issued 

August 17, 2007). By decision dated June 20, 2008, the Board affirmed an October 12, 2007 OWCP decision, holding 

that appellant’s application for reconsideration was untimely filed and failed to demonstrate clear evidence of error. 

Docket No. 08-0271 (issued June 20, 2008). In a decision dated December 17, 2009, the Board affirmed OWCP’s 

February 13, 2009 decision finding appellant’s application for reconsideration was untimely filed and failed to 

demonstrate clear evidence of error. Docket No. 09-1027 (issued December 17, 2009). In a decision dated August 16, 

2011, the Board affirmed an August 3, 2010 OWCP decision, finding appellant’s application for reconsideration was 

untimely filed and failed to demonstrate clear evidence of error. Docket No. 10-2378 (issued August 16, 2011). By 

decision dated February 5, 2013, the Board affirmed a June 21, 2012 OWCP decision, again finding appellant’s 

reconsideration request was untimely filed and failed to demonstrate clear evidence of error. Docket No. 12-1749 

(issued February 5, 2013). The Board in a November 24, 2014 decision, affirmed a June 4, 2014 OWCP decision 

finding that appellant’s reconsideration request was untimely filed and failed to demonstrate clear evidence of error.

Docket No. 14-1589 (issued November 24, 2014). 
3

In the most recent appeal, by decision dated June 10, 2016, the Board affirmed a 

February 16, 2016 nonmerit OWCP decision, finding that appellant’s reconsideration request was 

untimely filed and failed to demonstrate clear evidence of error.7

On January 19, 2017 OWCP received appellant’s January 11, 2017 request for 

reconsideration of OWCP’s April 22, 2002 decision. In support of the reconsideration request, 

appellant’s representative submitted a letter dated January 11, 2017. She provided a history of the 

case. Appellant’s representative argued that appellant did not sufffer a new injury on 

August 9, 2000. Rather, appellant’s employment injury of May 3, 2000 was made worse by the 

events of August 9, 2000. Appellant’s representative contended that fact of injury evidence and 

medical evidence which diagnosed appellant with an acute AC strain and ligament damage as a 

result of the August 9, 2000 injury was not considered. References to appellant’s October 14, 

2000 statement as well as the employing establishment’s statement on the Form CA-1 were noted. 

Copies of the referenced material were submitted along with a copy of OWCP’s April 22, 2002 

decision.

By decision dated September 28, 2017, OWCP denied appellant’s request for 

reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error. 

On appeal appellant’s representative reiterated her arguments on reconsideration. 

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.8 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.9 Timeliness is determined by the document receipt date (i.e., the “received date”

in OWCP’s Integrated Federal Workers’ Compensation System).

10

 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.11

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 demonstrates clear evidence of 

error.12 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for 

 

7 Docket No. 16-0871 (issued June 10, 2016). 

8 20 C.F.R. § 10.607(a).

9 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).

10 Id. at Chapter 2.1602.4(b) (February 2016).

11 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

12 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).
4

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 demonstrates clear evidence of error on the part of OWCP.13

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.14

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.15 

The Board makes an independent determination of whether a claimant has demonstrated clear 

evidence of error on the part of OWCP.16

ANALYSIS

OWCP’s procedures provide that the one-year time limitation for requesting 

reconsideration begins on the date of the original decision.17 A right to reconsideration within one 

year also accompanies any subsequent merit decision.18 The last decision on the merits of this 

case was OWCP’s April 22, 2002 decision, finding that the medical evidence of record was 

insufficient to establish that the diagnosed conditions were causally related to the August 9, 2000

employment incident. Appellant’s January 11, 2017 request for reconsideration was received by 

OWCP almost 15 years after the April 22, 2002 decision, well in excess of the one-year time 

limitation, and thus is untimely. Therefore, he must demonstrate clear evidence of error by 

OWCP.19

 

13 Id. at § 10.607(b); supra note 8 at Chapter 2.1602.5(a) (February 2016).

14 Robert G. Burns, 57 ECAB 657 (2006).

15 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 8 at Chapter 2.1602.5(a) (February 2016).

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

17 20 C.F.R. § 10.607(a).

18 See Robert F. Stone, 57 ECAB 292 (2005).

19 20 C.F.R. § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).
5

On reconsideration, appellant, through his representative, argued that he did not suffer a 

new injury on August 9, 2000. Rather, his employment injury of May 3, 2000 was made worse 

by the events of August 9, 2000. Appellant’s representative contended that fact of injury evidence 

and medical evidence which diagnosed appellant with an acute AC strain and ligament damage as 

a result of the August 9, 2000 injury was not considered. References to appellant’s October 14, 

2000 statement as well as the employing establishment’s statement on the Form CA-1 were noted. 

Copies of the referenced material were submitted along with a copy of OWCP’s April 22, 2002 

decision. 

Appellant’s arguments on reconsideration, however, fail to establish that OWCP erred 

when issuing its April 22, 2002 decision. OWCP denied the claim as the medical evidence of 

record did not relate an accurate history of the August 9, 2000 employment incident and did not 

provide detailed medical rationale explaining how the diagnosed conditions were causally related 

to August 9, 2000 employment incident. Specifically, it found that the evidence reflected that, on 

August 9, 2000, appellant had incurred a “tap” on the shoulder by a coworker, not a hit. The 

medical evidence appellant referenced was previously of record and considered by OWCP.20

Thus, appellant has not raised an argument or submitted any evidence that shows on its 

face that OWCP committed an error in denying his claim, nor has he provided evidence of 

sufficient probative value to raise a substantial question as to the correctness of OWCP’s decision. 

Thus, OWCP properly determined that appellant’s untimely request for reconsideration fails to 

demonstrate clear evidence of error.21

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.

 

20 See A.M., Docket No. 17-1434 (issued January 2, 2018); see also A.M., Docket No. 10-0526 (issued November 8, 

2010) (appellant did not sufficiently explain how largely duplicative evidence raised a substantial question as to the 

correctness of OWCP’s decision).

21 See S.M., Docket No. 18-0075 (issued April 11, 2018); see also M.B., Docket No. 17-1505 (issued 

January 9, 2018).
6

ORDER

IT IS HEREBY ORDERED THAT the September 28, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 6, 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