United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

South Wales, NY, Employer 

__________________________________________ 

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Docket No. 17-0318 

Issued: March 29, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 28, 2016 appellant filed a timely appeal from a June 7, 2016 nonmerit 

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

elapsed from the last merit decision, dated March 6, 2015, 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 over the merits of this case.2

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted additional evidence after OWCP rendered its February 9, 2016 

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

decision. Therefore the Board lacks jurisdiction to review this additional evidence on appeal. 20 C.F.R. 

§ 501.2(c)(1). 
2

On appeal appellant contends that his request for reconsideration was timely filed based 

on tracking documents from the U.S. Postal Service. 

FACTUAL HISTORY 

On January 20, 2015 appellant, then a 62-year-old rural letter carrier, filed a traumatic 

injury claim (Form CA-1) alleging that he slipped on icy steps on January 14, 2015 injuring his 

neck, lower back, right arm, and shoulder. An employing establishment customer, at whose 

residence the incident occurred, reported that he heard appellant fall and helped him up. 

Appellant advised the customer that he would likely be sore the next day, but would continue 

with his route. 

Appellant submitted notes dated January 26, and 30, 2015 from Dr. David F. Ratliff, a 

Board-certified orthopedic surgeon, diagnosing a right shoulder condition. 

In a February 3, 2015 letter, OWCP noted that when appellant’s claim was received it 

appeared to be for a minor injury that resulted in minimal or no lost time from work. It 

administratively approved a limited amount of medical expenses without formally considering 

the merits of the claim. OWCP informed appellant of the additional factual and medical 

evidence needed to establish his claim and allowed him 30 days to respond. 

Dr. Priscilla Dale, a Board-certified internist, examined appellant on January 25 and 

February 12, 2015. She noted that appellant had slipped on stairs at work on January 14, 2015 

while delivering a package. Appellant injured his neck, right shoulder, and lower back. He 

reported that he was holding onto the stair railing when he fell and pulled his shoulder. Dr. Dale 

diagnosed right shoulder joint pain, cervicalgia, sprains and strains of the neck, and back 

contusion. She checked a box marked “yes” indicating that the incident appellant described was 

the competent medical cause of his injury. 

In a February 6, 2015 note, Dr. Frederick B. McAdam, a Board-certified physiatrist, 

reported that appellant slipped on icy steps, landing on his back hitting his head. Appellant 

experienced immediate neck, low back, and right shoulder pain. Dr. McAdam examined 

appellant and diagnosed back pain, neck pain, shoulder pain, lumbar stenosis, rotator cuff 

sprain/strain, right shoulder degenerative joint disease, cervical spondylosis, osteoarthritis of the 

knees and hip, ossification of the posterior longitudinal ligament in the cervical region, and 

ankylosing spondylitis. He checked a box marked “yes” to the question of whether the incident 

appellant described was the competent medical condition of his injuries. 

Appellant completed a factual statement on February 18, 2015 and noted that while he 

was descending steps he slipped and fell down two to three steps hurting his neck, lower back, 

and right shoulder. He noted that, as he slipped, his body turned and he struck his head causing 

his neck injury. 

By decision dated March 6, 2015, OWCP denied appellant’s traumatic injury claim, 

finding that he had failed to submit rationalized medical evidence establishing causal relationship 

between his diagnosed conditions and the accepted employment injury. 
3

Following the March 6, 2015 decision, appellant submitted additional medical evidence. 

Dr. Dale completed a note on January 19, 2015 opining that appellant had sustained a workers’ 

compensation injury as he fell down stairs at work on January 14, 2015 while delivering a 

package. Appellant injured his neck, right shoulder, and lower back. He noted that he pulled his 

right shoulder when he was holding onto the railing and falling. Dr. Dale diagnosed shoulder 

joint pain, cervicalgia, neck sprains and strains, and back contusion. She checked the box 

marked “yes” to the question of whether the incident appellant described was the competent 

medical cause of his injury. 

Dr. Ratliff completed a January 28, 2015 form report provided by the State of New 

York’s Workers’ Compensation Board. He noted that appellant fell down stairs and injured his 

right shoulder on January 14, 2015. Dr. Ratliff diagnosed rotator cuff sprain and strain. He 

checked a box marked “yes” to the question of whether the incident that appellant described was 

the competent medical cause of his injury. In a March 9, 2015 form report, Dr. Ratliff opined 

that appellant sustained a right shoulder injury on January 14, 2015 associated with a fall at 

work. He diagnosed right shoulder pain. Dr. Ratliff again checked the box marked “yes” to 

indicate that the incident that appellant described was the competent medical cause of his injury. 

On December 24, 2015 Dr. McAdam completed a form report diagnosing lumbago, 

cervicalgia, pain in the shoulder joint, and lumbosacral spondylosis. He also checked the box 

marked “yes” to the question of whether he was of the opinion that appellant’s incident was the 

competent medical cause of his injury. Appellant submitted treatment notes from his physical 

therapist and from physician assistants. 

Appellant’s request for reconsideration of OWCP’s March 6, 2015 decision was received 

by OWCP on March 10, 2016. In support of this request, he submitted additional medical 

evidence, notes from physical therapy, notes from a physician assistant and a note dated 

February 29, 2016 from Dr. McAdam opining that appellant’s condition was the result of his 

January 14, 2015 work accident. An undated note from Dr. McAdam described appellant’s 

lower back pain, as well as his right arm and shoulder pain. He noted that appellant slipped and 

fell on icy steps after delivering a parcel. Dr. McAdam reported, “While holding onto railing 

with right arm, slipped and fell with sufficient force to tear right rotator cuff. As he continued 

down steps on back injuring lower back while slipping on steps. Further down the steps the 

patient’s body spun around hitting his head on house and pushing his head into his neck. Patient 

is over 300 pounds and had sufficient force to do injury.” 

By decision dated June 7, 2016, OWCP denied appellant’s request for reconsideration of 

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

LEGAL PRECEDENT 

Section 8128(a) of FECA3

 does not entitle a claimant to a review of an OWCP decision 

as a matter of right.4 This section vests OWCP with discretionary authority to determine whether 

 3

 5 U.S.C. § 8128(a). 

4 Thankamma Mathews, 44 ECAB 765, 768 (1993). 
4

it will review an award for or against compensation.5 OWCP, through regulations, has imposed 

limitations on the exercise of its discretionary authority. One such limitation is that OWCP will 

not review a decision denying or terminating a benefit unless the application for review is timely. 

In order to be timely, a request for reconsideration must be received by OWCP within one year 

of the date of OWCP’s merit decision for which review is sought. Timeliness is determined by 

the document receipt date of the reconsideration request.6 The Board has found that the 

imposition of this one-year time limitation does not constitute an abuse of the discretionary 

authority granted OWCP under 5 U.S.C. § 8128(a).7

In those cases where requests for reconsideration are untimely filed, the Board has held 

that OWCP must nevertheless undertake a limited review of the case to determine whether there 

is clear evidence of error pursuant to the untimely request.8

 OWCP’s procedures state that 

OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year filing 

limitation set forth in OWCP’s regulations, if the claimant’s request for reconsideration shows 

“clear evidence of error” on the part of OWCP.9

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

which was decided by OWCP.10 The evidence must be positive, precise and explicit and must be 

manifest on its face that OWCP committed an error.11 Evidence which does not raise a 

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

clear evidence of error.12 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.13 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.14 To show 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 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 The Board must make an independent 

 5 Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990). 

6

 20 C.F.R. § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) 

(February 2016). G.F., Docket No. 15-1053 (September 11, 2015). 

7 Supra note 4 at 769; Jesus D. Sanchez, supra note 5 at 967. 

8 Supra note 4 at 770. 

9 See supra note 6 at Chapter 2.1602.5 (February 2016). 

10 Supra note 4. 

11 Leona N. Travis, 43 ECAB 227, 241 (1991). 

12 Jesus D. Sanchez, supra note 5 at 968. 

13 Supra note 11. 

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

15 Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989). 
5

determination of whether a claimant has submitted clear evidence of error on the part of OWCP 

such that OWCP abused its discretion in denying merit review in the face of such evidence.16

ANALYSIS 

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

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

OWCP found in its March 6, 2015 decision that appellant had failed to meet his burden 

of proof to establish his traumatic injury claim as he had failed to submit medical evidence 

sufficient to establish causal relationship between the accepted employment incident and his 

diagnosed conditions. Appellant requested reconsideration through a letter received by OWCP 

on March 10, 2016. As noted above, a timely reconsideration request must be received by 

OWCP within one year of the merit decision. Timeliness is determined by the document receipt 

date of the reconsideration request (the received date in the Integrated Federal Employees’ 

Compensation System (iFECS)).17 If the request for reconsideration has a document received 

date greater than one year, the request must be considered untimely.18 Because appellant’s 

reconsideration request was not received until March 10, 2016, it was untimely filed. 

As an untimely reconsideration request, appellant must demonstrate clear evidence of 

error by OWCP. The Board finds that the reconsideration request and the evidence do not 

demonstrate clear evidence of error in this case. In support of his untimely request for 

reconsideration, appellant submitted additional medical evidence from Drs. McAdam, Ratliff, 

and Dale. These physicians submitted new reports which continued to support a causal 

relationship between appellant’s condition and his employment. Dr. McAdam’s undated report 

noted that due to appellant’s weight his slip and fall while holding a hand rail generated 

sufficient force to cause a rotator cuff tear. While this evidence supports appellant’s claim, it is 

insufficient to demonstrate clear evidence of error which is intended to be a difficult standard. 

The Board has held that evidence is insufficient to demonstrate clear evidence of error even if it 

is of sufficient probative value to create a conflict in medical opinion or establish a clear 

procedural error.19 In order to demonstrate clear evidence of error, the evidence 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.20 The medical 

evidence submitted by appellant does not have sufficient probative value to shift the weight of 

the evidence in favor of appellant. 

Appellant also submitted documents from his physical therapist and physician assistants. 

These notes are immaterial as physical therapists and physician assistants are not considered 

 16 Nancy Marcano, 50 ECAB 110 (1998). 

17 Supra note 6 at Chapter 2.1602.4(b) (February 2016). 

18 R.Y., Docket No. 16-1301 (issued December 15, 2016); T.E., Docket No. 16-0574 (issued August 18, 2016). 

19 D.G., 59 ECAB 455 (2008). 

20 See supra note 15. 
6

physicians under FECA.21 Their reports and opinions do not constitute probative medical 

evidence to establish error by OWCP.22 

On appeal appellant disagrees with OWCP’s regulations and contends that his 

reconsideration request should have been received by OWCP in a timely manner. 

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. 

ORDER 

IT IS HEREBY ORDERED THAT the June 7, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: March 29, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 21 R.S., Docket No. 15-0988 (issued August 12, 2015) . 

22 5 U.S.C. § 8101(2); see also G.G., 58 ECAB 389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J. 

Williams, 40 ECAB 649 (1989); Jane A. White, 34 ECAB 515 (1983).