United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.Y., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Sunnyvale, CA, Employer

__________________________________________

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Docket No. 18-1772

Issued: April 9, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 13, 2018 appellant filed a timely appeal from a March 22, 2018 nonmerit 

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

has elapsed from OWCP’s last merit decision, dated November 7, 2016, 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 this case.

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from March 22, 2018, the date of OWCP’s last decision was 

September 18, 2018. Since using September 19, 2018, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is September 13, 2018, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

2 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether OWCP properly denied appellant’s March 20, 2018 request for 

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

FACTUAL HISTORY

On June 28, 2014 appellant, then a 59-year-old city letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on June 4, 2014, she sustained sciatica after lifting magazines 

from the bottom of a mail hamper while in the performance of duty. She stopped work on 

June 12, 2014. On the reverse side of the claim form, the employing establishment controverted 

the claim noting that the date of injury specified on the Form CA-1 conflicted with that provided 

on the medical reports.

By decision dated August 13, 2014, OWCP denied appellant’s traumatic injury claim. It 

found that she had not factually established the occurrence of the alleged June 4, 2014 employment 

incident, noting that the medical evidence indicated differing dates of injury.

Appellant, on August 21, 2014, requested an oral hearing before an OWCP hearing 

representative.

Following a December 3, 2014 hearing, by decision dated February 6, 2015, OWCP’s

hearing representative affirmed the August 13, 2014 decision as modified to find that appellant 

had established the occurrence of the June 4, 2014 employment incident. He found, however, that 

appellant failed to establish a medical diagnosis in connection with the accepted June 4, 2014 

employment incident.

Appellant, on February 2, 2016, authorized John Casey to represent her before OWCP. On 

February 3, 2016 appellant, through her then-representative, requested reconsideration. 

By decision dated May 9, 2016, OWCP modified its February 6, 2015 decision to find that 

appellant established both the factual and medical components of fact of injury. However, it 

denied her traumatic injury claim, finding that she failed to establish causal relationship.

On August 11, 2016 appellant, through her then-representative, again requested 

reconsideration. 

Appellant, on August 17, 2016, provided written notice to OWCP that John Casey was no 

longer her representative. She specified Alan Apfelbaum as her then-representative. On 

August 22, 2016 appellant withdrew all other representative designations and advised that

Mr. Apfelbaum was her sole representative in matters regarding her OWCP claim. 

By decision November 7, 2016, OWCP denied modification of its May 9, 2016 decision. 

It found that appellant had not submitted reasoned medical evidence establishing causal 

relationship between a diagnosed condition and the accepted June 4, 2014 employment incident.
3

Mr. Casey, on November 28, 2017, indicated that he had submitted a request for 

reconsideration on behalf of appellant on November 6, 2017.

3

 On December 20, 2017 he inquired 

about the status of that reconsideration request.

OWCP, in a January 4, 2018 response, informed Mr. Casey that it was unable to 

communicate with him as appellant had not designated him as her authorized representative. It 

enclosed instructions regarding how to designate a representative before OWCP.

On February 22, 2018 appellant again authorized Mr. Casey as her representative before 

OWCP. 

By letter dated March 8, 2018, OWCP advised Mr. Casey that it had not received a request 

for reconsideration subsequent to its November 7, 2016 decision. 

Mr. Casey, on March 20, 2018, provided a copy of the November 6, 2017 letter requesting 

reconsideration. The November 6, 2017 request for reconsideration was signed by Mr. Casey. He 

further enclosed a certified mail receipt indicating that an envelope had been mailed to OWCP on 

November 6, 2017.

In support of appellant’s request for reconsideration, Mr. Casey submitted an October 20, 

2017 report from Dr. Peter Wu, who specializes in family medicine. Dr. Wu found that she had 

continued limitations from a June 4, 2014 employment injury. He indicated that appellant’s work 

activities on June 4, 2014 had aggravated her underlying lumbar condition. Dr. Wu noted that a 

magnetic resonance imaging (MRI) scan study showed a bulging disc. He opined that appellant 

had continued limitations and disability resulting from her June 4, 2014 employment injury.

By decision dated March 22, 2018, OWCP denied appellant’s March 20, 2018 request for 

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

It noted that Mr. Casey was not her authorized representative at the time that he may have 

requested reconsideration by letter dated November 6, 2017. OWCP further found that the 

medical evidence from Dr. Wu was insufficient 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.4 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.5 Timeliness is determined by the document receipt date of 

the request for reconsideration as indicated by the received date in the integrated Federal 

 

3 The Board notes that the record does not show that a November 6, 2017 request for reconsideration was received 

prior to March 20, 2018. 

4 5 U.S.C. § 8128(a); Y.S., Docket No. 08-0440 (issued March 16, 2009).

5 20 C.F.R. § 10.607(a).
4

Employees’ Compensation System (iFECS).6 Imposition of this one-year 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 request for reconsideration is untimely filed, it must nevertheless undertake a limited 

review to determine whether it demonstrates clear evidence of error.8 If a request for 

reconsideration demonstrates clear evidence of error, OWCP will reopen the case for merit 

review.9

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 shift the weight of the 

evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s 

decision.10

OWCP’s 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.11 

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

evidence of error on the part of OWCP.12

 

6 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

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

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

9 M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 6 at Chapter 

2.1602.5 (February 2016).

10 J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

11 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 6 at Chapter 2.1602.5(a) (February 2016).

12 D.S., Docket No. 17-0407 (issued May 24, 2017).
5

ANALYSIS

The Board finds that OWCP properly denied appellant’s March 20, 2018 request for 

reconsideration13 as it was untimely filed and failed to demonstrate clear evidence of error.

An application for reconsideration must be received within one year of the date of OWCP’s 

decision for which review is sought.14 As appellant’s request for reconsideration was not received 

by OWCP until March 20, 2018, more than one year after the issuance of its November 7, 2016 

decision, it was untimely filed. Consequently, she must demonstrate clear evidence of error by 

OWCP in its November 7, 2016 decision.15

The Board further finds that appellant has not demonstrated clear evidence of error on the 

part of OWCP in its November 7, 2016 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 November 7, 2016 decision.16 OWCP 

denied her claim as she failed to submit medical evidence sufficient to establish that she had 

sustained a diagnosed condition causally related to the accepted June 4, 2014 employment 

incident. In a report dated October 20, 2017, Dr. Wu opined that appellant had aggravated an 

underlying lumbar condition at work on June 4, 2014. He indicated that she continued to 

experience limitations resulting from her claimed June 4, 2014 employment injury. While Dr. Wu 

diagnosed an aggravation of a lumbar condition due to a June 4, 2014 employment injury, as 

previously noted, clear evidence of error is intended to represent a difficult standard.17 Even the 

submission of a detailed, well-rationalized report which, if submitted before the denial was issued, 

would have created a conflict in medical opinion requiring further development, does not 

constitute clear evidence of error.18 It is not enough to show that evidence could be construed so 

as to produce a contrary conclusion.19 Instead, the evidence must shift the weight in appellant’s 

 

13 With the March 20, 2018 reconsideration request, J.C. enclosed a request for reconsideration he had signed and 

dated November 6, 2017. He provided a certified mail receipt showing that an envelope was mailed to OWCP on that 

date. Mr. Casey, however, was not appellant’s authorized representative as of November 6, 2017. OWCP’s 

implementing regulations clearly provide that for a representative to be recognized by OWCP, the claimant must 

submit a signed written notice to OWCP appointing the representative. Appellant advised OWCP in writing on 

August 17, 2016 that Mr. Casey was no longer her authorized representative. She instead had designated

Mr. Apfelbaum as her representative. Appellant signed an authorization form on February 22, 2018 again designating

Mr. Casey as her authorized representative before OWCP. There is no evidence that Mr. Casey was appellant’s 

authorized representative at the time the November 6, 2017 letter was submitted. Consequently, the November 6, 

2017 correspondence is not a request for reconsideration of OWCP’s November 7, 2016 decision as it was not signed 

by appellant or her authorized representative. See 20 C.F.R. § 10.700(a).

14 20 C.F.R. § 10.607(a).

15 Id. at § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

16 See R.M., Docket No. 18-1393 (issued February 12, 2019).

17 W.R., Docket No. 18-1042 (issued February 12, 2019).

18 E.K., Docket No. 18-0422 (issued August 22, 2018).

19 Id. 
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favor.20 The Board finds that the October 20, 2017 report from Dr. Wu does not rise to the level 

of clear evidence of error.21

Appellant has not raised an argument or submitted any evidence that manifests on its face 

that OWCP committed an error in denying her claim. She has not provided evidence of sufficient 

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

the evidence is insufficient to establish clear evidence of error.22

CONCLUSION

The Board finds that OWCP properly denied appellant’s March 20, 2018 request for 

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

ORDER

IT IS HEREBY ORDERED THAT the March 22, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 9, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

20 R.S., Docket No. 18-0505 (issued July 24, 2018).

21 See E.B., Docket No. 18-1091 (issued December 28, 2018).

22 See M.B., Docket No. 17-1505 (issued January 9, 2018).