United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.R., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Birmingham, AL, Employer 

__________________________________________ 

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Docket No. 17-0307 

Issued: March 22, 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 November 23, 2016 appellant filed a timely appeal from a May 31, 2016 nonmerit 

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

elapsed from OWCP’s last merit decision, dated October 30, 2007, 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 the case. 

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 May 23, 1977 appellant, then a 28-year-old clerk, filed a traumatic injury claim (Form 

CA-1) alleging that, on that date, she injured her lower left arm in the performance of duty. 

 1

 5 U.S.C. § 8101 et seq. 
2

OWCP accepted the claim for lumbosacral strain and chronic lumbosacral syndrome.2 Appellant 

stopped work on the date of injury and received compensation for intermittent and total 

disability. She returned to modified employment on March 7, 1992, but stopped work on 

March 27, 1992. The employing establishment separated appellant from employment on 

November 22, 1994. 

Appellant, on September 7, 2007, filed a notice of recurrence (Form CA-2a) alleging that 

she sustained a recurrence of disability on March 12, 1992 causally related to her May 23, 1977 

employment injury. She stopped work on March 27, 1992 and returned to private employment 

in February 2001. 

By decision dated October 30, 2007, OWCP found that appellant failed to establish an 

employment-related recurrence of disability beginning March 12, 1992. It determined that she 

had not demonstrated either that the employing establishment withdrew her limited-duty position 

or submitted medical evidence showing that she was unable to perform her work duties. 

In a report dated May 29, 2012, Dr. Joel Melvin, a psychologist, diagnosed dysthymia, 

major depressive episode, and panic disorder without agoraphobia. He found that appellant’s 

condition was “exacerbated by chronic pain which resulted from an occupational injury in 

1977.”3

On September 29, 2015 appellant filed a claim for compensation (Form CA-7) requesting 

compensation from March 31, 1992 to December 31, 2005. In an October 8, 2015 response, 

OWCP advised her that she should follow the appeal rights from the October 30, 2007 decision. 

It further requested that appellant submit medical evidence supporting that she was disabled for 

the period claimed. 

Appellant, on April 15, 2016, requested reconsideration of the October 30, 2007 decision. 

She asserted that due to mental stress she had been unable to timely conduct business with 

OWCP. Appellant related that she tried to resume work because of her financial situation, but 

her pain worsened. She maintained that physicians recommended surgery, but it was not 

approved and that “[s]tress, pain, and incompetence were experiences that affected” her ability to 

work. 

By decision dated May 31, 2016, 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 

raised an argument alleging any error in the prior decision. 

 2

 By decision dated January 19, 1984, OWCP terminated appellant’s compensation after finding that she was no 

longer disabled due to her May 23, 1977 employment injury. In a decision dated July 24, 1984, an OWCP hearing 

representative reversed the January 19, 1984 decision and found that OWCP should reinstate wage-loss 

compensation beginning January 26, 1984. 

3

 On December 5, 2011 appellant telephoned OWCP and advised that she had depression. OWCP noted that it 

had not received medical evidence since 2004 and informed her that she should file a notice of recurrence if she 

believed that she had symptoms resulting from her work injury. On February 16, 2012 appellant requested 

“retirement under workers’ comp[ensation].” OWCP retrieved her case record from the federal records center. 
3

On appeal appellant asserts that she resumed work due to financial hardship, but was 

unable to obtain positions both inside and outside of federal employment due to her back 

condition. 

LEGAL PRECEDENT 

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

authority under 5 U.S.C. § 8128(a) of FECA.4

 As once such limitations, 20 C.F.R. § 10.607 

provides that an application for reconsideration must be sent within one year of the date of the 

OWCP decision for which review is sought.5

 OWCP will consider an untimely application only 

if the application demonstrates clear evidence on the part of OWCP in its most recent merit 

decision. The application must establish, on its face, that such decision was erroneous.6

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 an error (for example, 

proof of a miscalculation in a schedule award). Evidence such as a detailed, well rationalized 

medical report which, if submitted prior to the denial, would have created a conflict in medical 

opinion requiring further development, is not clear evidence of error and would not require a 

review of the case on the Director’s own motion.7

 To demonstrate clear evidence of error, a 

claimant must submit evidence relevant to the issue which was decided by OWCP. The evidence 

must be positive, precise, and explicit and must manifest on its face that it committed an error.8

ANALYSIS 

OWCP properly determined that appellant failed to file a timely request for 

reconsideration. Its procedures provide that the one-year time limitation for requesting 

reconsideration begins on the date of the original OWCP decision.9 A right to reconsideration 

within one year also accompanies any subsequent merit decision on the issues.10 As appellant’s 

April 15, 2016 request for reconsideration was submitted more than one year after October 30, 

2007, the date of the last merit decision, it was untimely filed. Consequently, she must 

demonstrate clear evidence of error by OWCP in denying her claim for compensation.11

 4 Supra note 1. 

5

 20 C.F.R. § 10.607. OWCP procedures changed effective August 29, 2011. Section 10.607 of the new 

regulations provides that the date of the reconsideration request for timeliness purposes was changed from the date 

the request was mailed to the date the request was received by OWCP. 20 C.F.R. § 10.607(a). 

6 Id. at § 10.607. 

7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (February 2016). 

8 Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55 

ECAB 143 (2003). 

9

 20 C.F.R. § 10.607(a). 

10 Robert F. Stone, supra note 8. 

11 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005). 
4

In her April 15, 2016 request for reconsideration, appellant contended that she could not 

comply with time limitation provisions due to mental stress. She did not, however, submit any 

medical evidence supporting that she was mentally incompetent and thus incapable of filing a 

request for reconsideration during the year following October 30, 2007.12

Appellant indicated that she attempted to work due to financial difficulties, but her pain 

worsened. She also alleged that she had experienced stress that negatively impacted her ability 

to work. The relevant issue, however, is whether appellant established a recurrence of disability 

beginning in March 1992 causally related to her May 23, 1977 employment injury. As this issue 

is medical in nature, it can only be resolved through the submission of medical evidence.13 

Appellant’s lay opinion that she could not work is irrelevant as the Board has held that lay 

individuals are not competent to render a medical opinion.14 Consequently, her contentions are 

insufficient to demonstrate clear evidence of error by OWCP. 

The only medical evidence submitted subsequent to the last merit decision of October 30, 

2007 is Dr. Melvin’s May 29, 2012 report. Dr. Melvin diagnosed dysthymia, major depressive 

disorder, and panic disorder without agoraphobia. He advised that chronic pain from a work 

injury aggravated appellant’s condition. Dr. Melvin did not, however, address the relevant issue 

of whether she was unable to work beginning March 1992 due to her May 23, 1977 employment 

injury. In order to demonstrate clear evidence of error, it was appellant’s duty to submit 

evidence relevant to the issue which was decided by OWCP.15 The Board finds that she failed to 

submit such evidence. 

On appeal appellant discusses the findings of physicians who had found her unable to 

work following her injury. She resumed work due to financial hardship, but was unable to obtain 

positions due to her back condition. Again, however, appellant’s lay opinion is irrelevant to the 

medical issue in this case, which can only be resolved through the submission of probative 

medical evidence from a physician.16

In order to demonstrate clear evidence of error, the evidence submitted must be of 

sufficient probative value to raise a substantial question as to the correctness of OWCP’s 

decision.17 The evidence appellant submitted on reconsideration fails to meet this standard. 

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. 

 12 See E.P., Docket No. 16-1402 (issued December 15, 2016); I.F., Docket No. 15-0625 (issued June 2, 2015). 

13 George C. Vernon, 54 ECAB 319 (2003). 

14 Gloria J. McPherson, 51 ECAB 441 (2000). 

15 Howard Y. Miyashiro, 51 ECAB 253 (1999). 

16 See L.G., Docket No. 09-1517 (issued March 3, 2010); supra note 14. 

17 See Veletta C. Coleman, 48 ECAB 367 (1997). 
5

ORDER 

IT IS HEREBY ORDERED THAT the May 31, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 22, 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