United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Miami, FL, Employer

__________________________________________

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Docket No. 18-0494

Issued: July 9, 2018

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 January 9, 2018 appellant filed a timely appeal from a September 25, 2017 nonmerit 

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

elapsed from OWCP’s last merit decision, dated March 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 over the merits of the claim.

ISSUE

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

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

FACTUAL HISTORY

On November 30, 2010 appellant, then a 51-year-old clerk, filed an occupational disease 

claim (Form CA-2) alleging that she sustained injury to both shoulders due to the repetitive lifting 

 

1 5 U.S.C. § 8101 et seq.
2

and pulling required by her job. She indicated that she first became aware of her claimed condition 

on June 1, 2010 and first realized on November 30, 2010 that it was caused or aggravated by her

federal employment. Appellant did not stop work.

After development of the evidence and denial of her claim by decisions dated March 23, 

2011, May 3, 2012, and March 15, 2013, OWCP accepted in April 2014 (under File No.

xxxxxx746) that appellant sustained bilateral complete ruptures of the rotator cuffs of her

shoulders.2 It paid her disability on the daily rolls for time lost from work in May, August, and 

September 2014 when she attended treatment sessions for her accepted employment injury. 

On November 20, 2015 appellant filed a claim for compensation (Form CA-7) seeking a 

schedule award due to her accepted employment injury. 

In a December 18, 2015 development letter, OWCP requested that appellant submit a 

report from her attending physician containing a rating of upper extremity permanent impairment 

derived in accordance with the standards of the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3

Appellant submitted a November 19, 2015 report from Dr. Thesselon W. Monderson, an 

attending Board-certified orthopedic surgeon, who detailed the findings of the physical 

examination he conducted on that date. Dr. Monderson noted that appellant complained of left 

shoulder pain and he reported normal results upon inspection and palpation of the 

skin/subcutaneous tissue of the left shoulder. He diagnosed primary osteoarthritis of the left 

shoulder and indicated that a corticosteroid joint injection would be provided for that region. 

By decision dated March 8, 2016, OWCP denied appellant’s claim for a schedule award. 

It found that she failed to submit a rating of upper extremity permanent impairment derived in 

accordance with the standards of the sixth edition of the A.M.A., Guides.

On March 9, 2017 appellant requested reconsideration of the March 8, 2016 decision. She

noted that Dr. Monderson had left the country and she discussed her attempts to obtain a report 

containing a rating of her upper extremity permanent impairment.

Appellant submitted a document memorializing her rescheduling of a physical therapy 

session originally scheduled for May 12, 2016.

By decision dated March 16, 2017, OWCP denied appellant’s request for reconsideration 

of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence and argument 

submitted by appellant was irrelevant or immaterial to the underlying schedule award issue.4

 

2 The record also contains documents showing that in October 2002 OWCP had accepted (under File No.

xxxxxx987) that appellant sustained bilateral carpal tunnel syndrome.

3 A.M.A., Guides (6th ed. 2009).

4 OWCP indicated that appellant’s reconsideration request was untimely filed, but noted that she was “given the 

benefit of doubt due to inclement weather on the East Coast.”
3

In an undated letter received on September 14, 2017, appellant again requested 

reconsideration of OWCP’s March 8, 2016 decision. She indicated that her attending physician 

advised her that he could only provide an impairment rating for her if she visited him as a workers’

compensation patient. Appellant requested that OWCP send her for a “proper” examination or 

allow her attending physician to see her as a workers’ compensation patient. 

Appellant submitted a copy of a January 19, 2011 OWCP development letter5 on which a 

person with an illegible signature made handwritten notations. The individual provided 

examination and test results, a diagnosis of bilateral rotator cuff tears, and a summary of the work 

duties that appellant believed caused the diagnosed condition. Appellant also submitted a portion 

of OWCP’s March 16, 2017 decision with handwritten notations by an unidentified individual.

By decision dated September 25, 2017, OWCP denied appellant’s request for 

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

that her request for reconsideration was untimely filed because it was not received until 

September 14, 2017, more than one year after issuance of its March 8, 2016 merit decision. OWCP 

further found that the evidence and argument appellant submitted in connection with her untimely 

reconsideration request failed to demonstrate clear evidence of error in its March 8, 2016 decision 

denying her schedule award claim.

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation. The Secretary of Labor may review an award 

for or against payment of compensation at any time on his own motion or on application. The 

Secretary, in accordance with the facts found on review, may end, decrease or increase the 

compensation awarded; or award compensation previously refused or discontinued.6

OWCP, through regulations, has imposed limitations on the exercise of its discretionary 

authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the implementing 

regulations provide that an application for reconsideration must be received within one year of the 

date of OWCP’s decision for which review is sought.7 However, OWCP will reopen a claimant’s 

case for merit review, notwithstanding the one-year filing limitation, if the claimant’s application 

for review demonstrates clear evidence of error on the part of OWCP in its most recent merit 

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

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

be manifest on its face that OWCP committed an error.8

 

5 OWCP sent this development letter to appellant in conjunction with the development of the occupational disease 

claim she filed on November 30, 2010. 

6 5 U.S.C. § 8128(a).

7 20 C.F.R. § 10.607(a).

8

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).
4

To demonstrate clear evidence of error, the evidence submitted must not only be of 

sufficient probative value to create a conflicting 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.9 The Board 

notes that clear evidence of error is intended to represent a difficult standard.10 Evidence that does 

not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to 

demonstrate clear evidence of error.11 It is not enough merely to establish that the evidence could 

be construed so as to produce a contrary conclusion.12 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.13 The Board makes an independent determination as to whether a claimant has 

demonstrated clear evidence of error on the part of OWCP.14

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.

The Board initially finds that OWCP properly determined in its September 25, 2017 

decision that appellant had failed to file a timely request for reconsideration. An application for 

reconsideration must be received within one year of the date of OWCP’s decision for which review 

is sought.15 As appellant’s request for reconsideration of its March 8, 2016 merit decision was not 

received by OWCP until September 14, 2017, more than one year after issuance of its March 8, 

2016 merit decision, it was untimely filed. Consequently, she must demonstrate clear evidence of 

error by OWCP in its March 8, 2016 decision.

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

part of OWCP in issuing its March 8, 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 March 8, 2016 decision.16 The evidence 

and argument she submitted did not raise a substantial question concerning the correctness of 

OWCP’s decision. Appellant submitted a statement in which she discussed her unsuccessful 

attempts to obtain a rating of her upper extremity permanent impairment. However, she did not 

 

9 Annie L. Billingsley, 50 ECAB 210 (1998).

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

11 Jimmy L. Day, 48 ECAB 652 (1997).

12 Id.

13 Id.

14 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

15 See supra note 7.

16 See supra note 8.
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explain how this evidence raised a substantial question as to the correctness of OWCP’s March 8, 

2016 decision denying her schedule award claim.

17

Appellant submitted two documents in support of her untimely reconsideration request, a 

copy of a January 19, 2011 OWCP development letter on which a person with an illegible signature 

made handwritten notations and a portion of OWCP’s March 16, 2017 decision with handwritten 

notations by an unidentified individual. Neither of these nonmedical documents show that OWCP 

erred in issuing its March 8, 2016 decision denying her schedule award claim.18

The Board finds that appellant’s application for review does not show on its face that 

OWCP committed error when it denied her schedule award claim in its March 8, 2016 decision.19 

As noted, clear evidence of error is intended to represent a difficult standard20 and appellant has 

not met this standard in this case.

For these reasons, the evidence submitted by appellant does not raise a substantial question 

concerning the correctness of OWCP’s March 8, 2016 decision and OWCP properly determined 

that appellant did not demonstrate clear evidence of error in that decision.

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.

 

17 See supra notes 9 and 11.

18 The Board has held that a report may not be considered as probative medical evidence if there is no indication 

that the person completing the report qualifies as a physician as defined in 5 U.S.C. § 8101(2) and reports lacking 

proper identification do not constitute probative medical evidence. C.B., Docket No. 09-2027 (issued May 12, 2010). 

The Board notes that, even if the document with notations on the January 19, 2011 development letter constituted 

medical evidence, the document does not contain any rating of appellant’s upper extremity permanent impairment, 

which is the underlying issue.

19 See S.F., Docket No. 09-0270 (issued August 26, 2009).

20 See supra note 10.
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ORDER

IT IS HEREBY ORDERED THAT the September 25, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 9, 2018

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