United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Palm Desert, CA, Employer 

__________________________________________ 

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Docket No. 17-0225 

Issued: May 16, 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 9, 2016 appellant filed a timely appeal from a May 19, 2016 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the May 19, 2016 decision. 

ISSUE 

The issue is whether OWCP properly denied appellant’s February 22, 2016 

reconsideration request under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.2 The facts of the case set forth in the 

Board’s prior decision are incorporated herein by reference. The relevant facts are as follows. 

On July 19, 2012 appellant, then a 56-year-old mail carrier, filed an occupational disease 

and claim for compensation (Form CA-2) alleging that she sustained a right shoulder injury 

causally related to repetitive right arm movements in her job duties. In a letter dated July 9, 

2012, she stated she had been a city carrier until October 23, 2010, when she stopped working 

due to an alleged August 23, 2010 employment injury to her back.3

 Appellant stated that in 2010 

she experienced shoulder pain and she discussed her job duties. 

In a report dated July 18, 2012, Dr. Mark Barnhard, an osteopath, provided a history of 

an August 23, 2010 employment incident involving an onset of low back pain after pulling a 

lever. As to the right shoulder, he reported that appellant developed a gradual onset of pain in 

July 2010, but did not see a physician until September 2011. Dr. Barnhard indicated that 

appellant was given an injection in her shoulder by a physician assistant in October 2011. He 

provided results on examination and diagnosed lumbar facet arthropathy and right shoulder 

rotator cuff tendinopathy, stable. 

By decision dated October 16, 2012, OWCP denied appellant’s claim as she had not 

established the factual component of her claim. It indicated that appellant had referred to a 

second opinion report from Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon, but this 

was a referral for his back injury claim and Dr. Swartz did not state appellant had a work-related 

shoulder injury.4

 OWCP found the evidence did not establish an employment-related injury. 

On October 11, 2013 appellant requested reconsideration and submitted a September 27, 

2013 report from Dr. Jacob Tauber, a Board-certified orthopedic surgeon. Dr. Tauber provided a 

history and noted appellant’s job duties. He provided results on examination and diagnosed right 

rotator cuff tear. Dr. Tauber stated that appellant carried out extensive strenuous and repetitive 

motion duties in the course of her employment, noting appellant’s job duties of retrieving and 

casing mail. He stated that she had a rotator cuff tear and the mechanism of injury was a “classic 

repetitive motion due to her impingement.” Dr. Tauber concluded that appellant’s injury should 

be considered work related. 

By decision dated December 19, 2013, OWCP reviewed the case on its merits and 

modified the October 16, 2012 decision to reflect a denial based on another basic element. It 

found the medical evidence was insufficient to establish an injury causally related to the accepted 

employment factors. 

 2

 Docket No. 14-1192 (issued October 17, 2014). 

3

 The record indicates that appellant filed a traumatic injury claim for injury on August 23, 2010. 

4

 The record contains a May 26, 2011 report from Dr. Swartz, who noted that appellant reported pain in her right 

shoulder and appellant stated that it was a repetitive strain injury. 
3

Appellant appealed to the Board on April 28, 2014. The Board affirmed the 

December 19, 2013 OWCP decision on October 17, 2014.5

 The Board found that the medical 

evidence of record was insufficient to establish a right shoulder injury causally related to factors 

of her federal employment. 

On September 15, 2015 appellant again requested reconsideration. She submitted a 

September 11, 2015 letter, arguing that the medical evidence contained rationalized medical 

opinions. Appellant asserted that she had “additional medical reports” and an updated magnetic 

resonance imaging (MRI) scan. 

By letter dated October 2, 2015, OWCP noted that no additional medical evidence had 

been received, and requested that appellant submit any additional evidence within 20 days. On 

October 14, 2015 it received a six-page facsimile (fax) transmission, which included appellant’s 

September 11, 2015 letter. No additional medical evidence was received. 

By decision dated October 28, 2015, OWCP denied appellant’s request for 

reconsideration of the merits of the claim, under 5 U.S.C. § 8128(a) as she had not met any of the 

requirements for merit review. 

On November 3, 2015 OWCP received a fax transmission that included a report dated 

April 7, 2015 from Dr. Tauber. Dr. Tauber provided results on examination and opined that 

appellant had an employment-related shoulder condition. A memorandum of telephone call 

dated November 5, 2015 indicated that appellant asserted that she had attempted to submit 

medical evidence, but the fax transmission did not go through for some reason. The 

memorandum indicated that appellant was advised to request reconsideration. 

On February 22, 2016 appellant again requested reconsideration of her claim. In a letter 

dated November 5, 2015, she again argued the medical evidence was sufficient to establish the 

claim. 

By decision dated May 19, 2016, OWCP reviewed the merits of the claim and denied 

modification of its prior merit decision. It found that if a reconsideration request included new 

and relevant evidence, or an arguable case for error, a merit review should be conducted. In 

reviewing the history of the case, OWCP found that the October 28, 2015 decision had denied 

the claim as there was insufficient evidence to support causal relationship. 

LEGAL PRECEDENT 

5 U.S.C. § 8128(a) provides that OWCP may review an award for or against 

compensation upon application by an employee or on its own motion. The employee shall 

exercise her right through a request to the district office. The request, along with the supporting 

statements and evidence, is called the “application for reconsideration.”6

 5 Supra note 2. 

6

 20 C.F.R. § 10.605 (1999). The regulations provide that OWCP may, on its own motion and without regard to 

whether there is new evidence, review an award for or against payment of compensation. 20 C.F.R. § 10.610. 
4

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

authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that 

an application for reconsideration must be received by it within one year of the date of OWCP’s 

decision for which review is sought. 

OWCP procedures require a review of the file to determine whether the application for 

reconsideration was received within one year of a merit decision. The one-year period begins on 

the date of the original decision. However, a right to reconsideration within one year 

accompanies any subsequent merit decision on the issues. This includes any hearing or review 

of the written record decision, any denial of modification following reconsideration, any merit 

decision by the Board, and any merit decision following action by the Board, but does not 

include prerecoupment hearing decisions.7

 Timeliness is determined by the document receipt 

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

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

greater than one year, the request must be considered untimely.8

 

OWCP will consider an untimely application only if the application demonstrates clear 

evidence of error on the part of it in its most recent merit decision. The application must 

establish, on its face, that such decision was erroneous.9

 The term clear evidence of error is 

intended to represent a difficult standard. If clear evidence of error has not been presented, 

OWCP should deny the application by letter decision, which includes a brief evaluation of the 

evidence submitted and a finding made that clear evidence of error has not been shown.10 

ANALYSIS 

In the present case, OWCP received appellant’s request for reconsideration on 

February 22, 2016. 

The May 19, 2016 decision applied a standard for timely requests and found it was 

sufficient to review the merits of the claim.11

20 C.F.R. § 10.607(a) provides that an application for reconsideration must be received 

by OWCP within one year of the date of OWCP’s decision for which review is sought. A right 

 7

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

8 Id. at Chapter 2.1602.4b (February 2016).

9 D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005). 

10 Supra note 7 at Chapter 2.1602.5(a) (October 2011). 

11 Under 20 C.F.R. § 10.606(b), for a timely reconsideration request, a claimant is entitled to a merit review if the 

request shows that OWCP erroneously applied or interpreted a specific point of law, advances a new and relevant 

legal argument, or submits relevant and pertinent new evidence. 
5

to reconsideration within one year accompanies any subsequent merit decision on the issues,12

including a Board decision.13 

In the May 19, 2016 decision, OWCP described the October 28, 2015 decision as a merit 

review. If the October 28, 2015 decision was a merit review, appellant would have one year 

from that date to timely request reconsideration. The October 28, 2015 decision however, denied 

a review of the merits as appellant had not submitted any medical evidence is support of her 

September 15, 2015 request for reconsideration and failed to meet the criteria for reopening the 

merits of her claim.14

The last merit decision in this case was the Board’s October 17, 2014 decision. Because 

appellant’s reconsideration request was received on February 22, 2016, more than one year after 

the October 17, 2014 decision, it was untimely filed. As an untimely reconsideration request, the 

proper standard of review is clear evidence of error. 

The Board therefore finds that the case should be remanded to OWCP for proper review 

of the February 22, 2016 reconsideration request under the clear evidence of error standard.15 

After such review, OWCP should issue an appropriate decision. 

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s February 22, 2016 

reconsideration request under 5 U.S.C. § 8128(a). 

 12 Id. 

13 See supra note 7. 

14 Even if appellant had submitted a reconsideration request on November 3, 2015, when she submitted medical 

evidence, such a request would have been received more than one year after the October 17, 2014 Board decision. 

15 T.E., Docket No. 16-0574 (issued August 18, 2016); A.B., Docket No. 15-0521 (issued June 13, 2016); R.J., 

Docket No. 15-1797 (issued April 7, 2016); W.L., Docket No. 15-0842 (issued January 14, 2016). 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated May 19, 2016 is set aside and the case is remanded for further 

action consistent with this decision of the Board. 

Issued: May 16, 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