United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Columbia Falls, MT, Employer

__________________________________________

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Docket No. 18-1689

Issued: April 4, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 6, 2018 appellant filed a timely appeal from a March 19, 2018 nonmerit 

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

have elapsed from the last merit decision, dated December 8, 2016, 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 this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on 

appeal. Id.
2

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.

FACTUAL HISTORY

On November 4, 2014 appellant, then a 56-year-old rural carrier, filed an occupational 

disease claim (Form CA-2) alleging that she developed a herniated disc in her neck and disc bulges 

in her neck and back as a result of her repetitive employment duties. She noted that she first 

became aware of the claimed condition and its relationship to factors of her federal employment

on December 28, 2013. On the reverse side of the claim form the employing establishment 

indicated that appellant had stopped work on January 2, 2014, first reported her condition to her 

supervisor on November 4, 2014, and had not returned to work.

In a letter dated November 7, 2014, the employing establishment challenged appellant’s 

occupational disease claim. It contended that she had failed to provide the evidence required to 

support her claim, including a detailed description of the factors of employment believed to be 

responsible for her condition, a history of her condition, and a comprehensive medical report from 

her physician. 

By development letter dated November 10, 2014, OWCP acknowledged receipt of 

appellant’s claim and informed her that the evidence submitted was insufficient to establish her 

claim. It provided a factual questionnaire for her completion and requested medical evidence in 

support of her claim. OWCP afforded appellant 30 days to submit the necessary evidence. 

In a work capacity evaluation form (OWCP-5c) dated July 22, 2014, Dr. Allen M. Weinert, 

Board-certified in physical medicine and rehabilitation, noted appellant’s restrictions, which he 

reported were permanent. He concluded that appellant would not be able to perform her usual 

work duties. 

In response to the November 10, 2014 development letter, appellant indicated that, while 

working on December 28, 2013, she had just finished casing her mail when her back froze and she 

could not turn to the right. She noted that she was unable to see her doctor until January 2, 2014. 

In her completed questionnaire, appellant indicated that casing mail, pulling packages out of a tub, 

and bending to lift heavy packages all contributed to her condition.

By decision dated December 30, 2014, OWCP denied appellant’s claim. It noted that she 

had established that the employment factors occurred as described. However, OWCP found that 

appellant had not submitted medical evidence containing a diagnosis in connection with her 

alleged condition. 

In a report dated January 15, 2015, Dr. Camden Kneeland, Board-certified in 

anesthesiology and pain medicine, diagnosed chronic pain syndrome, myofascial pain, and 

cervicogenic migraine. 

In a report dated March 17, 2015, Dr. Kneeland examined appellant and diagnosed thoracic 

myofascial strain (chronic), a strain of her neck, and chronic pain syndrome.
3

In a report dated February 20, 2014, received by OWCP on June 2, 2015, Dr. Patrick 

McDonnell, a diagnostic radiology specialist, related that a magnetic resonance imaging (MRI) 

scan revealed degenerative changes of appellant’s cervical spine along with the presence of 

vertebral and facet joint arthrosis and a small right posterolateral disc protrusion at the T9-10 level 

without significant neural impingement. 

OWCP also received a report dated March 12, 2014, wherein Dr. William Benedetto, 

Board-certified in diagnostic radiology, reviewed a cervical spine MRI scan and indicated that 

appellant had multilevel spondylosis with disc space narrowing, anterior and posterior osteophytes 

and posterior disc protrusions, a faint elevated T2 signal at the C5-6 level within the cord itself, 

broad-based disc/osteophyte at C4-5 with moderate central canal narrowing, moderate left and 

mild-moderate right foraminal narrowing, moderate broad-based C5-6 disc/osteophyte complex 

with moderate central canal stenosis with moderate right and moderate-severe left foraminal 

narrowing, mild C6-7 central canal narrowing with mild left foraminal narrowing, and a small far 

lateral/foraminal C7-T1 disc extrusion. 

On June 2, 2015 appellant requested reconsideration of OWCP’s December 30, 2014 

decision. 

In a report dated June 23, 2015, Dr. Kneeland examined appellant and again diagnosed 

chronic pain syndrome. 

By decision dated September 9, 2015, OWCP modified its December 30, 2014 decision to 

find that appellant had established a medical diagnosis, but denied her claim because the medical 

evidence of record did not relate her diagnosed conditions to any specific duties of her 

employment. It noted that appellant had neither provided medical documentation that contained 

specific employment duties/activities nor a physician’s opinion supported by medical explanation 

as to how those duties in federal employment caused, contributed to, or aggravated her medical 

conditions.

In a letter dated September 8, 2016, Dr. Kneeland opined that appellant’s chronic 

myofascial pain syndrome was the result of a combination of her December 28, 2013 injury and 

repetitive upper extremity, neck, and upper back use during her years in federal employment. He 

noted that her chronic condition was exacerbated by the December 28, 2013 injury. Dr. Kneeland

opined that her chronic pain syndrome and her cervicogenic headaches were primarily the result 

of chronic myofascial neck and upper back pain. He related that appellant’s duties were restricted 

so not to include repetitive upper extremity, upper back, and neck movements. 

On September 13, 2016 appellant requested reconsideration of OWCP’s September 9, 

2015 decision. 

By decision dated December 8, 2016, OWCP denied modification of the September 9, 

2015 decision. It found that the evidence provided did not establish a correlation between the 

diagnosed conditions of strain of neck and thoracic myofascial strain and specific employment 

factors. OWCP noted that appellant had not provided a rationalized medical opinion establishing 

causal relationship. 
4

In a report dated June 26, 2017, Dr. Dustin Carpenter, a family medicine specialist, 

examined appellant and diagnosed myofascial pain dysfunction syndrome. He noted that appellant 

had fallen recently and injured her ribs. 

In a letter dated December 7, 2017, Dr. Kneeland indicated that appellant’s chronic pain 

was due to her repetitive work duties. He noted that her federal employment activities resulted in 

a chronic myofascial pain syndrome. Dr. Kneeland related that appellant’s duties as a mail carrier 

directly resulted in her chronic myofascial pain, and that the pain had not resolved.

On December 19, 2017 OWCP received appellant’s reconsideration request of its 

December 8, 2016 decision.

By decision dated March 19, 2018, OWCP denied appellant’s request for reconsideration, 

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

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.3 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.4 One such limitation is that for merit decisions issued on or 

after August 29, 2011, the request for reconsideration must be “received” by OWCP within one 

year of the date of the 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 Employees’ Compensation System (iFECS).6 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.7

OWCP will consider an untimely request for reconsideration only if the request 

demonstrates “clear evidence of error” on the part of OWCP in its “most recent merit decision.”

8

 

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

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

apparent on its face that OWCP committed an error.10 Evidence that does not raise a substantial 

 

3 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).

4 20 C.F.R. § 10.607.

5

Id. at § 10.607(a). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 

2.1602.4 (February 2016).

6

Id. at Chapter 2.1602.4b.

7 See M.P., Docket No. 17-0367 (issued March 12, 2018); Thankamma Mathews, 44 ECAB 765 (1993).

8 20 C.F.R. § 10.607(b).

9

Id.

10 Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).
5

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

evidence of error.11 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 shift the weight of the evidence in favor of the claimant and raise a substantial 

question as to the correctness of OWCP’s decision.12

The Board notes that clear evidence of error is intended to represent a difficult standard.13 

Evidence that does not raise a substantial question concerning the correctness of OWCP’s decision 

is insufficient to demonstrate clear evidence of error.14 It is not enough merely to establish that 

the evidence could be construed so as to produce a contrary conclusion.15 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.16 The Board makes an independent determination as to whether 

a claimant has demonstrated clear evidence of error on the part of OWCP.17 Where a request is 

untimely and fails to demonstrate clear evidence of error, OWCP will deny the request for 

reconsideration without reopening the case for a review on the merits.18

ANALYSIS

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. Appellant had one year from 

the date of OWCP’s December 8, 2016 decision to timely request reconsideration. One year from 

December 8, 2016 fell on Friday, December 8, 2017. OWCP received appellant’s reconsideration 

request on Tuesday, December 19, 2017. As OWCP did not receive appellant’s reconsideration 

request until December 19, 2017, 11 days past the one-year deadline from the December 8, 2016

merit decision, it was untimely filed. Consequently, appellant must demonstrate clear evidence of 

error by OWCP in the denial of her claim.19

The Board finds that appellant has failed to demonstrate clear evidence of error on the part 

of OWCP in issuing its prior merit decision dated December 8, 2016. In support of her request, 

appellant submitted a report dated June 26, 2017 from Dr. Carpenter, who diagnosed myofascial 

pain dysfunction syndrome after appellant sought treatment for a fall and injury to her ribs. This 

report refers to an incident unrelated to the occupational disease claim at issue in this case. 

 

11 R.C., Docket No. 17-0198 (issued January 28, 2019); see Jesus D. Sanchez, 41 ECAB 964 (1990).

12 R.C., id.; Thankamma Mathews, supra note 7.

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

14 R.L., Docket No. 18-0496 (issued January 9, 2019); Jimmy L. Day, 48 ECAB 652 (1997).

15 Id.

16 Id.

17 R.L., supra note 14; Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, supra note 7.

18 20 C.F.R. § 10.608(b).

19 Id. at § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).
6

Appellant also submitted a letter from Dr. Kneeland dated December 7, 2017, which indicated that 

appellant’s chronic pain was “likely related” to her repetitive work duties. Dr. Kneeland noted 

that her federal employment activities resulted in a chronic myofascial pain syndrome. However,

his opinions were largely repetitive from a letter dated September 8, 2016, which was submitted 

prior to the December 8, 2016 decision. Repetitive or cumulative evidence is insufficient to prima 

facie shift the weight of the evidence in favor of the claimant.20

The term clear evidence of error is intended to represent a difficult standard.21 Even a 

detailed, well-rationalized medical report, which would have created a conflict in medical opinion 

requiring further development if submitted prior to issuance of the denial decision, does not 

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

to produce a contrary conclusion. Instead, the evidence must shift the weight in appellant’s favor.22

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

manifests on its face that OWCP committed an error in its December 8, 2016 decision denying her 

claim for an employment-related back and neck condition.23 The evidence and argument 

submitted in connection with her untimely reconsideration request did not raise a substantial 

question concerning the correctness of OWCP’s prior decision.

As the evidence and argument submitted are of insufficient probative value to prima facie

shift the weight in favor of appellant and raise a substantial question as to the correctness of 

OWCP’s last merit decision, appellant has failed to demonstrate clear evidence of error.24

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 M.P., Docket No. 17-0367 (issued March 12, 2018). 

21 See L.C., Docket No. 18-1407 (issued February 14, 2019). 

22 Id.

23 See supra note 10.

24 J.W., Docket No. 18-0703 (issued November 14, 2018); see W.A., Docket No. 18-0297 (issued July 18, 2018).
7

ORDER

IT IS HEREBY ORDERED THAT the March 19, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 4, 2019

Washington, DC

Christopher J. Godfrey, 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