United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Coldwater, MI, Employer

__________________________________________

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Docket No. 18-0505

Issued: July 24, 2018

Appearances: Case Submitted on the Record

Capp P. Taylor, Esq., for the appellant1

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 January 8, 2018 appellant, through counsel, filed a timely appeal from a July 19, 2017 

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

days has elapsed from the last merit decision dated January 13, 2016, to the filing of this appeal, 

the Board lacks jurisdiction to review the merits of her claim pursuant to the Federal Employees’

Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.

 

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.
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 July 17, 2015 appellant, then a 44-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that she sustained severe disc desiccation at L5-S1, bilateral 

neural foraminal narrowing, and a tear at L4-5 on the right side causally related to factors of her 

federal employment. She attributed her condition to lifting, carrying, and falls at work, including 

a fall that resulted in a fractured pelvis. Appellant stopped work on July 17, 2015.

A June 25, 2015 magnetic resonance imaging (MRI) scan study revealed severe L5-S1 

degenerative disc disease, mild foraminal narrowing, and a right foraminal annular tear at L4-5.

In a July 15, 2015 work excuse, Dr. Charles Whitaker, who is Board-certified in family 

practice, found that appellant could not work pending a neurosurgery consultation.

By decision dated September 15, 2015, OWCP denied appellant’s occupational disease 

claim. It found that she had not established a diagnosed medical condition causally related to the 

accepted work factors.

On October 5, 2015, appellant requested reconsideration and submitted a form report dated 

September 10, 2015 from Dr. Hunter Brumblay, a Board-certified neurosurgeon. Dr. Brumblay 

diagnosed lumbar degenerative disc disease, severe at L5-S1, a loss of disc height, and neural 

foraminal narrowing. He indicated that appellant’s symptoms began a couple of years earlier after 

a fall, and found that she was totally disabled from work from August 19 to October 21, 2015.3 

By decision dated January 13, 2016, OWCP denied modification of its September 15, 2015 

decision. It found that the medical evidence submitted was insufficient to establish that appellant 

sustained a diagnosed condition or disability as a result of the identified work factors.

Dr. Brumblay, on June 27, 2017, described appellant’s job duties and noted that she 

fractured her pelvis in 2014. He discussed the findings on the June 25, 2015 MRI scan study of 

the lumbar spine. Dr. Brumblay opined that the degeneration at L5-S1 was too significant to be 

attributable to age-related changes. He found that appellant’s extensive walking, climbing stairs, 

bending, and lifting while performing her work duties “would certainly have contributed at the site 

of L5-S1 and the foraminal narrowing bilaterally.” Dr. Brumblay opined that she was disabled 

from her usual employment for the period September 2, 2015 until March 31, 2016.

On July 13, 2017 appellant, through counsel, requested reconsideration. Counsel asserted 

that the newly submitted June 27, 2017 medical report from Dr. Brumblay clearly explained how 

the diagnosed conditions were related to employment factors. 

 

3 Appellant also submitted a form report completed by a nurse practitioner.
3

By decision dated July 19, 2017, OWCP denied appellant’s request for reconsideration as 

it was untimely filed and failed to demonstrate clear evidence of error. It found that she had not 

submitted evidence sufficient to raise a substantial question regarding the correctness of its denial 

of her occupational disease claim. 

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 by OWCP within one year of the date of 

OWCP’s decision for which review is sought.5 Timeliness is determined by the document receipt 

date (i.e., the “received date” in OWCP’s Integrated Federal Employees’ Compensation System).

6

 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.

7

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.8 If an 

application 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,

10 is positive, precise, and explicit and manifests on its face that 

OWCP committed an error.11 The evidence must not only be of sufficient probative value to create 

a conflict in the medical opinion or demonstrate a clear procedural error, but must also shift the 

weight of the evidence in favor of the claimant and raise a substantial question as to the correctness 

of OWCP’s decision for which review is sought.

12

Evidence that does not raise a substantial question as to the correctness of OWCP’s 

decision is insufficient to demonstrate clear evidence of error. It is not enough merely to show 

that the evidence could be construed so as to produce a contrary conclusion. A determination of 

whether the claimant has demonstrated clear evidence of error entails a limited review of how the 

evidence submitted with the reconsideration request bears on the evidence previously of record.13

 

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

5 20 C.F.R. § 10.607(a).

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

7 E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

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

9

Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.1602.5(a) (February 2016).

10 See A.M., Docket No. 17-1434 (issued January 2, 2018); Dean D. Beets, 43 ECAB 1153 (1992).

11 See D.D., Docket No. 17-1750 (issued March 8, 2018); Leona N. Travis, 43 ECAB 227 (1991).

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

13 See J.S., Docket No. 10-0385 (issued September 15, 2010); B.W., Docket No. 10-0323 (issued 

September 2, 2010).
4

ANALYSIS

The Board finds that OWCP properly determined that appellant failed to file a timely 

request for reconsideration. OWCP’s regulations14 and procedures15 establish a one-year time 

limit for requesting reconsideration, which begins on the date of the original OWCP decision. The 

most recent merit decision was issued by OWCP on January 13, 2016. Appellant had one year 

from the date of this decision to make a timely request for reconsideration. Since OWCP did not 

receive her request until July 13, 2017, it was filed outside of the one-year time period and, thus,

untimely filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in 

the denial of her claim.

16

The Board finds that appellant has not demonstrated clear evidence of error by OWCP in 

its January 13, 2016 decision. OWCP denied her occupational disease claim after finding that the 

medical evidence of record was insufficient to establish a diagnosed condition causally related to 

the accepted work factors.

Appellant did not submit the type of positive, precise, and explicit evidence which 

manifests on its face that OWCP committed an error in its January 13, 2016 decision.17 In a report 

dated June 27, 2017, Dr. Brumblay attributed her extensive disc degeneration at L5-S1 in part to 

her work duties, and found that she was disabled from September 2, 2015 until March 31, 2016. 

While Dr. Brumblay’s opinion provides some support for causal relationship, it is insufficient to 

raise a substantial question as to the correctness of OWCP’s decision.18 The submission of 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, does not constitute clear 

evidence of error.19 It is not enough to show that evidence could be construed so as to produce a 

contrary conclusion.20 Instead, the evidence must shift the weight in appellant’s favor.21 The 

Board finds that the evidence submitted does not rise to the level of clear evidence of error.

On appeal counsel asserts that Dr. Brumblay’s June 27, 2017 report is sufficient to meet 

the standard of proof imposed by an untimely request for reconsideration. As discussed, however, 

 

14 See supra note 4; see Alberta Dukes, 56 ECAB 247 (2005).

15 Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.1602.4 (February 2016); see also Veletta C. 

Coleman, 48 ECAB 367, 370 (1997).

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

17 See D.F., Docket No. 17-0745 (issued March 14, 2018).

18 See A.M., Docket No. 17-1900 (issued February 22, 2018).

19 See D.D., supra note 11; D.G., 59 ECAB 455 (2008).

20 See D.D., supra note 11.

21 See M.N., Docket No. 15-0758 (issued July 6, 2015).
5

this report is not sufficient to shift the weight of the evidence in her favor and raise a substantial 

question as to the correctness of OWCP’s January 13, 2016 decision.22 

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

that OWCP committed an error in denying her claim. The evidence, consequently, is insufficient 

to demonstrate clear evidence of error.23

On appeal counsel contends that the June 27, 2017 report from Dr. Brumblay is sufficiently 

detailed and rationalized to meet the standard of proof imposed by an untimely request for 

reconsideration. As explained above, the Board finds that the evidence submitted with the 

untimely reconsideration request is insufficient to meet appellant’s burden of proof.

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 July 19, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 24, 2018

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

 

22 See A.M., supra note 18; see also J.P., Docket No. 17-1024 (issued December 27, 2017).

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