United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Clovis, CA, Employer 

__________________________________________ 

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Docket No. 17-1169 

Issued: September 19, 2017 

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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 8, 2017 appellant filed a timely appeal from an April 11, 2017 nonmerit decision 

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

from October 7, 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.2

 

ISSUE 

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

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

of error. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted additional evidence on appeal, after OWCP rendered its April 11, 

2017 decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of 

its final decision. Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. 

20 C.F.R. § 501.2(c)(1). 
2

On appeal appellant argues that he submitted his request for reconsideration in a timely 

manner. 

FACTUAL HISTORY 

On August 27, 2013 appellant, then a 61-year-old rural route carrier, filed an 

occupational disease claim (Form CA-2) alleging that he sustained bilateral hand, joint, and knee 

pain, along with left shoulder pain, as a result of duties of his federal employment. On 

October 24, 2013 OWCP accepted his claim for right carpal tunnel syndrome, left calcifying 

tendinitis of the shoulder, and bilateral enthesopathy of the wrist and carpus. Appellant received 

compensation payments on the supplemental rolls for intermittent disability commencing 

October 19, 2013 and on periodic rolls for temporary total disability commencing 

March 25, 2014. 

On December 4, 2013 OWCP referred appellant to Dr. Ernest Miller, a Board-certified 

orthopedic surgeon, for a second opinion examination to determine appellant’s current diagnoses 

and the status of his accepted conditions. In a report dated January 22, 2014, Dr. Miller 

diagnosed appellant with hypertension, gout, and elevated cholesterol. He found no evidence of 

carpal tunnel syndrome or impingement of the shoulder. Dr. Miller noted that appellant’s 

treating physician had not provided any objective findings to support continued residuals of 

appellant’s accepted conditions. He also noted that appellant’s current symptoms were related to 

gout, and that there was no justification for his temporary total disability starting 

August 17, 2013. On physical examination, Dr. Miller found that appellant had full range of 

motion of the neck, shoulders, and upper extremities. Palpation of the upper extremities 

exhibited marked swelling of the olecranon bursa, consistent with gout. 

In a report dated April 21, 2014, Dr. Sanagaram Shantharam, a Board-certified 

orthopedic surgeon, noted on examination of appellant’s left shoulder that he had a mildly 

positive impingement test with pain in the biceps tendon area and normal range of motion. He 

diagnosed appellant with adhesive capsulitis of the shoulder and carpal tunnel syndrome. 

Dr. Shantharam did not include objective findings. 

By letter dated November 17, 2014, Dr. Francisco Unguez, a Board-certified surgeon 

responded to Dr. Miller’s report of January 22, 2014 and OWCP’s inquiries for additional 

medical evidence. Dr. Unguez indicated that he did not have the capacity to write “rebuttal 

papers” and requested that OWCP allow him to refer appellant to orthopedic surgeons or 

rheumatologists in order to prepare a rebuttal. He noted that Dr. Shantharam’s office had also 

declined to write such a report. 

On July 27, 2015 OWCP proposed to terminate appellant’s wage-loss compensation and 

medical benefits, based on the report of Dr. Miller, which found that he had no residuals related 

to his accepted conditions. It noted that the weight of medical evidence rested with Dr. Miller. 

On October 7, 2015 OWCP finalized its decision to terminate appellant’s wage-loss 

compensation and medical benefits. 

On October 4, 2016 OWCP received a document from appellant wherein he requested 

that OWCP review his medical records. Appellant also noted his disagreement with Dr. Miller’s 
3

report, and his disagreement with “the basis for decision.” He also submitted a number of 

medical reports to the record dating from 2013 through September 13, 2016. 

On January 25, 2017 appellant requested reconsideration of OWCP’s October 7, 2015 

termination decision. He did not submit any evidence with his request for reconsideration. 

By decision dated April 11, 2017, OWCP denied appellant’s request for reconsideration, 

finding that it 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

 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.4

OWCP may not deny an application for review solely because the application was 

untimely 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.5 

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 demonstrates clear evidence of error on the part of OWCP.6

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

issue which was decided by OWCP.7 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.8 Evidence which does not raise a 

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

demonstrate clear evidence of error.9 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.10 This entails a limited review by OWCP of 

 3

 20 C.F.R. § 10.607(a). 

4

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

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

6

 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.” 

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

8

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

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

10 See Leona N. Travis, supra note 8. 
4

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.11

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.12 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.13

ANALYSIS 

In its April 11, 2017 decision, OWCP 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 original decision.14 The last merit decision 

in this case was on October 7, 2015. The request for reconsideration considered by OWCP in its 

April 11, 2017 decision was received on January 25, 2017 which was over one year later. 

However, appellant had previously submitted an undated request, received by OWCP on 

October 4, 2016, putting forward an argument that Dr. Miller’s report was inconsistent and 

requesting that OWCP review his medical records. Along with the request appellant submitted a 

number of medical reports. OWCP, in its April 11, 2017 decision, does not reference the 

presence of this earlier request in the case record. 

The Board finds that the undated request, received on October 4, 2016, qualified as a 

request for reconsideration. OWCP procedures note that the request does not have to be 

submitted on the appeal request form; letter format is acceptable and the word reconsideration 

does not need to be stated in the request for it to be considered valid, but sufficient detail should 

be provided to discern the decision being contested.15 Appellant submitted an argument with 

regard to Dr. Miller’s report and requested that OWCP review his medical records. As 

October 4, 2016 was less than one year after the original decision of October 7, 2015, this 

request for reconsideration was timely. 

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

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

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

14 20 C.F.R. § 10.607(a). 

15 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(a)(1-2) 

(February 2016). See Jack D. Johnson, 57 ECAB 593 (2006) (the Board has held that there may be a request for 

reconsideration in situations where a letter does not contain the word reconsideration). See also E.R., Docket No. 

13-1800 (issued February 21, 2014). 
5

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

was untimely filed. The decision of April 11, 2017 will be set aside and the case remanded to 

OWCP for application of the proper legal standard for reviewing timely reconsideration requests. 

CONCLUSION 

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

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

of error. 

ORDER 

IT IS HEREBY ORDERED THAT the April 11, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision. 

Issued: September 19, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board