United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.A., Appellant

and

U.S. POSTAL SERVICE, MAIL RECOVERY 

CENTER, Atlanta, GA, Employer

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Docket No. 19-0321

Issued: July 5, 2019

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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 26, 2018 appellant filed a timely appeal from a June 27, 2018 nonmerit 

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

elapsed from the last merit decision dated April 26, 2017 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 this case.

2

 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the June 27, 2018 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.
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 December 8, 2015 appellant, then a 60-year-old clerk, filed an occupational disease 

claim (Form CA-2) alleging that she sustained neck, right shoulder, wrist, and arm conditions due 

to repetitively throwing parcels and packages, reaching above the shoulder, pushing, twisting, 

pulling, bending, and prolonged standing, while in the performance of duty. She did not stop work. 

OWCP accepted the claim for C3-4 and C6-7 cervical disc displacement and right shoulder 

bursitis. 

On August 26, 2016 appellant accepted a modified mail recovery clerk position. 

On March 15, 2017 OWCP received claims for compensation (Form CA-7) requesting 

wage-loss compensation for the periods February 4 to 17, 2017 and February 24 to March 3, 2017. 

In a development letter dated March 16, 2017, OWCP advised appellant that her claim was 

“not payable in its entirety at this time.” It authorized payment of four hours of wage-loss 

compensation for February 17, 2017, four hours for February 24, 2017, and four hours for

March 7, 2017. OWCP informed appellant as to the evidence required to support her claim for 

compensation for the unpaid periods of time claimed and afforded her 30 days to provide additional 

medical evidence. 

In response to OWCP’s request appellant submitted a clinic note indicating that she was 

seen on February 27, 2017 by Mary Charlot, advanced registered nurse practitioner. Ms. Charlot 

noted that appellant was disabled from work at that time, but could return to work on 

March 6, 2017. 

By decision dated April 26, 2017, OWCP authorized payment of four hours of wage-loss 

compensation for February 27, 2017, but denied appellant’s claim for compensation for 36 hours 

of wage loss for the period February 27 to March 3, 2017. It found that she failed to submit any 

medical evidence signed by a licensed physician explaining how her disability for this period of 

time was due to her accepted employment conditions. 

On July 26, 2017 OWCP received a Form CA-7 claiming wage-loss compensation for the 

period February 27 to March 3, 2017. 

By letter dated August 1, 2017, OWCP informed appellant that a decision had previously 

been issued denying her claim for 36 hours of wage-loss compensation for the period February 27 

to March 3, 2017. It informed her that no further action would be taken on her claim for the 

aforementioned period and advised that she may follow the appeal rights that accompanied the 

April 26, 2017 decision if she disagreed with that decision. 

On June 19, 2018 OWCP received appellant’s request for reconsideration of the April 26, 

2017 decision. 
3

In support of her request for reconsideration appellant submitted a November 20, 2017 

report from Dr. Jay Bender, a Board-certified orthopedic surgeon. Dr. Bender related that from 

February 27 through March 3, 2017 she had experienced an acute exacerbation causing total 

disability. He explained that in the days leading up to February 27, 2017 appellant’s repetitive 

employment duties exacerbated her preexisting conditions and that she was diagnosed with a right 

shoulder torn rotator cuff and right carpal tunnel syndrome.

By decision dated June 27, 2018, OWCP denied appellant’s June 19, 2018 reconsideration 

request, finding that it was untimely filed and failed to demonstrate clear evidence of error. 

LEGAL PRECEDENT

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further 

merit review.3 This discretionary authority, however, is subject to certain restrictions. For 

instance, a request for reconsideration must be received within one year of the date of OWCP’s 

decision for which review is sought.4 Timeliness is determined by the document receipt date (i.e.,

the received date in OWCP’s integrated Federal Employees’ Compensation System).

5

 Imposition 

of this one-year filing limitation does not constitute an abuse of discretion.6

When an application for review is untimely, OWCP undertakes a limited review to 

determine whether the application presents clear evidence that OWCP’s final merit decision was 

in error.7 Its procedures state that OWCP will reopen a claimant’s case for merit review, 

notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s 

application for review shows clear evidence of error on the part of OWCP.8 In this regard, OWCP 

will limit its focus to a review of how the newly submitted evidence bears on the prior evidence 

of record.9

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

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

must manifest on its face that OWCP committed an error. Evidence which does not raise a 

 

3 5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

4 20 C.F.R. § 10.607(a).

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

6 G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. 

Faidley, Jr., 41 ECAB 104 (1989).

7 See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4 2018); Charles J. Prudencio, 41 ECAB 

499, 501-02 (1990).

8 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See 

also 20 C.F.R. § 10.607(b); supra note 5 at Chapter 2.1602.5 (February 2016).

9

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006). 

10 S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 5 at Chapter 2.1602.5(a) (February 2016).
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substantial question concerning the correctness of OWCP’s decision is insufficient to establish 

clear evidence of error. It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence 

submitted with the reconsideration request bears on the evidence previously of record and whether 

the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence 

of error, the evidence submitted must not only be of sufficient probative value to create a conflict 

in medical opinion or show 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 decision.11

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’s regulations12 and procedures13 establish a one-year time limitation for requesting 

reconsideration, which begins on the date of the original OWCP merit decision. A right to 

reconsideration within one year also accompanies any subsequent merit decision on the issues.14 

The most recent merit decision was OWCP’s April 26, 2017 decision which found that the 

evidence of record was insufficient to establish that appellant was totally disabled for the period 

alleged. As her request for reconsideration was not received by OWCP until June 19, 2018, more 

than one year after the April 26, 2017 decision, it was untimely filed.15 Because appellant’s request 

was untimely, she must demonstrate clear evidence of error on the part of OWCP in having denied 

total disability compensation for the period alleged.

On reconsideration appellant submitted Dr. Bender’s November 20, 2017 report. 

Dr. Bender explained that in the days leading up to February 27, 2017 she experienced an 

exacerbation of her preexisting condition causing total disability. He also diagnosed additional 

medical conditions. The Board finds that this evidence does not raise a substantial question as to 

the correctness of OWCP’s last merit decision. Clear evidence of error is intended to represent a 

difficult standard. Even the submission of a detailed, well-rationalized medical report which, if 

submitted before the merit decision was issued, would have required further development, is 

 

11 Supra note 9. 

12 F.N., Docket No. 18-1543 (issued March 6, 2019); 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 

247 (2005).

13 Supra note 5 at Chapter 2.1602.4 (February 2016); see Veletta C. Coleman, 48 ECAB 367, 370 (1997).

14 J.W., supra note 9; Robert F. Stone, 57 ECAB 292 (2005).

15 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).
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insufficient to demonstrate clear evidence of error.16 As such, the Board finds that appellant has 

not demonstrated clear evidence of error.17

Accordingly, the Board finds that OWCP properly denied appellant’s reconsideration 

request, as it was untimely filed and failed to demonstrate clear evidence of error. 

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 June 27, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 5, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

16 S.C., supra note 10. 

17 Id.; see also Nancy Marcano, 50 ECAB 110 (1998).