United States Department of Labor

Employees’ Compensation Appeals Board

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S.H., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Atlanta, GA, 

Employer

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Docket No. 18-0561

Issued: February 4, 2019

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 16, 20181appellant filed a timely appeal from a July 19, 2017 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).2 As more than 180 days 

elapsed from the last relevant merit decision, dated June 15, 2016, to the filing of this appeal, 

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from the July 19, 2017 decision, was Monday, January 15, 2018, which 

was a federal holiday. As such, appellant had until the close of the next business day (Tuesday, January 16, 2018) to 

timely file her appeal. 20 C.F.R. § 501.3(f)(2). Because using January 23, 2018, the date the appeal was received by 

the Clerk of the Appellate Boards, would result in the loss of appeal rights, the date of the postmark is considered the 

date of filing. The date of the U.S. Postal Service postmark is January 16, 2018, rendering the appeal timely filed. 20 

C.F.R. § 501.3(f)(1).

2 Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). By order dated November 19, 2018, the Board exercised its discretion and denied the request as appellant’s 

arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the 

record. Order Denying Request for Oral Argument, Docket No. 18-0561 (issued November 19, 2018).
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pursuant to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board lacks jurisdiction over the merits of this case.4

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 September 25, 2014 appellant, then a 47-year-old custodian, filed a traumatic injury 

claim (Form CA-1) alleging that she injured her right upper extremity on September 19, 2014 

while attempting to remove heavy trash while in the performance of duty. She stopped work on 

September 22, 2014 and received continuation of pay. On November 19, 2014 OWCP accepted 

the claim for right shoulder/upper arm sprain and paid appellant wage-loss compensation for 

temporary total disability for the period November 11, 2014 through February 1, 2015. Appellant

returned to work on February 2, 2015. OWCP also paid compensation for intermittent wage loss 

for the period May 18 through September 8, 2015.

In April 2016, appellant filed several claims for compensation (Form CA-7) covering the 

period February 20 through April 1, 2016. She claimed compensation for wage loss due to 

attending various medical appointments, as well as temporary total disability from March 21 

through April 1, 2016.

By decision dated June 15, 2016, OWCP awarded compensation for periods of intermittent 

wage loss to attend work-related medical appointments. However, it denied compensation for 

March 10, 2016 (2.87 hours), March 17, 2016 (4 hours), March 18, 2016 (8 hours), and temporary 

total disability for the period March 21 through April 1, 2016.

On January 23, 2017 OWCP expanded the acceptance of appellant’s claim to include right 

shoulder region disorder of the bursae and tendons, other affections of the right shoulder region, 

left shoulder/upper arm strain (muscles, fascia, and tendons), and left shoulder joint derangement. 

It also paid wage-loss compensation for temporary total disability beginning June 24, 2016, and 

placed appellant on the periodic compensation rolls effective January 8, 2017.

On June 16, 2017 appellant requested reconsideration of OWCP’s June 15, 2016 decision. 

She utilized the appeal request form that accompanied OWCP’s decision. Appellant also 

submitted a handwritten letter dated June 14, 2017, which was received by OWCP on 

June 16, 2017. In her letter she noted that OWCP had incorrectly identified her treating physician 

 

3 5 U.S.C. § 8101 et seq.

4 The Board notes that following the July 19, 2017 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
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in its June 15, 2016 decision. Appellant also indicated that her claimed period of disability was 

March 17 through April 29, 2016.

OWCP also received May 31, 2017 progress notes from Dr. Kamal C. Kabakibou, a Boardcertified anesthesiologist specializing in pain medicine. His assessment/diagnoses included 

cervical spondylosis, cervical disc degeneration, low back pain, constipation, and insomnia.

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

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

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.5 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.6 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.7 

OWCP will consider an untimely request for reconsideration only if the request demonstrates clear 

evidence of error on the part of OWCP in its most recent merit decision.8 The request must 

demonstrate on its face that such decision was erroneous.9

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

issue that was decided by OWCP.10 The evidence must be positive, precise, and explicit and it 

must be apparent on its face that OWCP committed an error.11 It is not enough to merely show 

that the evidence could be construed to produce a contrary conclusion. Evidence that does not 

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

demonstrate clear evidence of error.12 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 

 

5 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).

6 20 C.F.R. § 10.607.

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Id. at § 10.607(a). A request for reconsideration must be “received” by OWCP within one year of OWCP decision 

for which review is sought. The one-year period begins on the next day after the date of the original contested decision. 

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

Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the “received 

date” in the integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

8 20 C.F.R. § 10.607(b).

9

Id.

10 See Dean D. Beets, 43 ECAB 1153 (1992).

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

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

Where a request is untimely and fails to demonstrate clear evidence of error, OWCP will 

deny the request for reconsideration without reopening the case for a review on the merits.14

ANALYSIS

The Board finds that OWCP properly determined that appellant’s request for 

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

OWCP issued its decision denying appellant’s claim for compensation on June 15, 2016. 

It received appellant’s request for reconsideration on June 16, 2017, which was more than one year 

after OWCP’s decision. Because appellant’s request was untimely, she must demonstrate clear 

evidence of error on the part of OWCP in denying wage-loss compensation for March 10, 2016 

(2.87 hours), March 17, 2016 (4 hours), March 18, 2016 (8 hours), and March 21 through 

April 1, 2016.15

In her reconsideration request, appellant noted that OWCP had incorrectly identified her 

treating physician. She also noted that she was claiming disability compensation for the period 

March 17 through April 29, 2016. Additionally, appellant submitted Dr. Kabakibou’s May 31, 

2017 progress notes. However, the progress notes do not address the claimed period of disability, 

nor do they pertain to appellant’s accepted right and/or left shoulder conditions. Even the 

submission of a detailed, well-rationalized medical report which, if submitted before the merit 

decision was issued, would have created a conflict in medical opinion requiring further 

development, is not clear evidence of error.16 The Board finds that appellant’s reconsideration 

request and the accompanying medical evidence fail to demonstrate clear evidence of error on the 

part of OWCP in denying wage-loss compensation for the above-noted periods. Appellant did not 

present evidence or argument regarding her attendance at medical appointments on the dates in 

question or that she was temporarily totally disabled from March 21 through April 1, 2016. 

To demonstrate clear evidence of error, it is not sufficient merely to show that the evidence 

could be construed so as to produce a contrary conclusion. The term clear evidence of error is 

intended to represent a difficult standard.17 The Board finds that the evidence submitted does not 

manifest on its face that OWCP committed an error in denying appellant’s claim for wage-loss 

compensation. Appellant has not otherwise submitted evidence of sufficient probative value to 

 

13 Thankamma Mathews, 44 ECAB 765, 770 (1993).

14 20 C.F.R. § 10.608(b).

15 Id. at § 10.607(b).

16 James R. Mirra, 56 ECAB 738 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, 

Chapter 2.1602.5(a) (October 2011).

17 Id. at Chapter 2.1602.5a; see Dean D. Beets, supra note 10.
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raise a substantial question as to the correctness of OWCP’s June 15, 2016 decision. Thus, the 

evidence is insufficient to demonstrate clear evidence of error.

CONCLUSION

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

that 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: February 4, 2019

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