United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.G., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Monroe Township, NJ, Employer

__________________________________________

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Docket No. 18-1038

Issued: January 23, 2019

Appearances: Case Submitted on the Record

Robert D. Campbell, Esq., for the appellant1

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 April 23, 2018 appellant, through counsel, filed a timely appeal from a January 3, 2018 

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

days has elapsed from the last merit decision, dated December 9, 2016, to the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board lacks jurisdiction over the merits of this case.3

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the January 3, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to evidence in the case record that 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.
2

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 January 17, 2015 appellant, then a 51-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained injuries on December 2, 2014 when a garbage truck 

backed into his delivery vehicle while in the performance of duty. He received medical treatment 

on December 8, 2014. Appellant stopped work on December 31, 2014.

By decision dated February 25, 2015, OWCP denied the claim as the factual component of 

fact of injury had not been established. It also noted that the medical evidence of record did not 

contain a physician’s rationalized opinion as to whether and how any of the diagnosed conditions 

were caused or aggravated by the accepted December 2, 2014 employment incident.

Appellant, through counsel, requested reconsideration on December 15, 2015. By decision 

dated March 1, 2016, OWCP affirmed the denial of the claim. It modified its previous decision to 

reflect that appellant had established the factual component of fact of injury, but that his claim 

remained denied because he had not established causal relationship between the claimed 

conditions and the accepted December 2, 2014 employment incident.

On September 26, 2016 appellant, through counsel, requested reconsideration.

By decision dated December 9, 2016, OWCP denied modification of its March 1, 2016 

decision. It found that the medical reports of record did not provide a well-reasoned and 

unequivocal explanation as to how the diagnosed conditions were caused or aggravated by the 

accepted December 2, 2014 employment incident.

Following its December 9, 2016 decision, OWCP received additional medical evidence in 

the form of progress reports from Dr. David Weiss, an osteopath and Board-certified family 

practitioner. In December 1 and 29, 2016 and January 26, March 30, April 27, May 25, June 22, 

July 20, August 24, September 21 and November 2, 2017 progress reports, Dr. Weiss noted that 

appellant was seen in follow-up for a work-related motor vehicle accident of December 2, 2014 

where he sustained injuries to the cervical spine. He provided diagnoses of chronic post-traumatic 

cervical spine strain and sprain, aggravation of preexisting age-related degenerative disc disease 

of cervical spine, aggravation of preexisting cervical spine pathology from a 2007 motor vehicle 

accident, right C5-6 radiculopathy and left C6 radiculopathy, post-traumatic cervical facet joint 

syndrome, and C4-5, C5-6, and C6-7 disc bulges.

On December 12, 2017 OWCP received appellant’s January 31, 2017 letter entitled 

“Relevant New Evidence.” Appellant discussed the effect the December 2, 2014 employment 

incident had on his life. Duplicative medical evidence in support of his request was received along 

with new medical reports.

In a February 14, 2017 report, Dr. Weiss noted that on December 2, 2014 appellant was 

involved in a work-related motor vehicle accident and sustained significant musculoskeletal 

pathology to his cervical spine. He set forth examination findings as well as his review of June 8, 
3

2015 magnetic resonance imaging (MRI) scan of cervical spine. Dr. Weiss diagnosed chronic 

post-traumatic cervical strain and sprain; aggravation of preexisting age-related degenerative disc 

disease and osteoarthritis of the cervical spine; and aggravation of preexisting cervical spine 

pathology (motor vehicle accident in 2007 with documented disc herniations at C4-5, C5-6, and 

C6-7). He concluded that appellant sustained significant musculoskeletal trauma to his cervical 

spine secondary to the December 2, 2014 employment incident. Dr. Weiss also indicated that 

appellant had sustained permanent orthopedic impairment with a permanent disability to his 

cervical spine, either through direct causation or aggravation, with the common factor being his 

December 2, 2014 work-related accident.

In a December 6, 2017 report, Dr. Weiss noted that on December 2, 2014 appellant was in 

his mail truck at a stop when a garbage truck backed into his vehicle. At the time of impact, 

appellant braced himself with his right arm and was thrown backwards and forwards. Dr. Weiss 

indicated that appellant initially injured his cervical spine, right elbow, and right knee. He

indicated that the December 2, 2014 work-related motor vehicle accident released neurogenic 

chemical mediators from cell bodies of the sensory neurons and non-neurogenic mediators from 

tissue which initiated and perpetuated an inflammatory response. Dr. Weiss explained that this 

inflammatory response led to irritated nerve roots and radicular pain, as evinced on a July 28, 2015 

electromyogram/nerve conduction velocity (EMG/NCV) study. He also indicated that appellant’s 

cervical bulging discs and protruding disc at C4-5 increased his vulnerability to trauma as his 

cervical spine was already compromised. Dr. Weiss concluded that the December 2, 2014 workrelated injury was responsible for appellant’s current cervical spine pain symptoms.

A June 18, 2015 cervical spine magnetic resonance imaging (MRI) scan contained 

impressions of degenerative disc and joint disease with multilevel neural foraminal stenosis from 

C4-5 through C6-7 and a nonspecific straightening of the spine. The scan did not demonstrate disc 

herniation or central canal stenosis.

The previously noted July 28, 2015 EMG/NCV study contained handwritten impressions 

of left C6 radiculopathy, active; right C5-6 mild radiculopathy; borderline carpal tunnel syndrome

(CTS), sensory; and left ulnar sensory entrapment.

On December 14, 2017 appellant, through counsel, requested reconsideration.

By decision dated January 3, 2018, OWCP denied appellant’s December 14, 2017 request 

for reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of 

error. It noted that, while appellant had submitted additional medical evidence, he failed to provide 

any explanation as to why OWCP’s December 9, 2016 decision was improperly decided.

LEGAL PRECEDENT

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

authority under section 8128(a) of FECA.4 It will not review a decision denying or terminating a 

 

4 5 U.S.C. § 8101 et seq. The Board has found that the imposition of the one-year limitation does not constitute an 

abuse of the discretionary authority granted OWCP under section 8128(a) of FECA. See J.S., Docket No. 10-0385 

(issued September 15, 2010); Andrew Fullman, 57 ECAB 574 (2006); Adell Allen (Melvin L. Allen), 55 ECAB 

390 (2004).
4

benefit unless the application for review is filed within one year of the date of that decision.5 

Timeliness is determined by the document receipt date (i.e., the received date in OWCP’s 

Integrated Federal Employees’ Compensation System (iFECS)).6 The Board has found that the 

imposition of the one-year limitation does not constitute an abuse of the discretionary authority 

granted OWCP under section 8128(a) of FECA.7

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

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

was in error.8 Its procedures provide 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 demonstrates clear evidence of error on the part of OWCP.9 In this regard, 

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

evidence of record.10

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

issue which was decided by OWCP.11 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.12 Evidence which does not raise a 

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

clear evidence of error.13 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.14 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.15 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 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 

 

5 20 C.F.R. § 10.607; see also E.R., Docket No. 09-1655 (issued March 18, 2010); Debra McDavid, 57 ECAB 149 

(2005); Alan G. Williams, 52 ECAB 180 (2000).

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

7 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

8 B.W., Docket No. 10-0323 (issued September 2, 2010); M.E., 58 ECAB 309 (2007); Leon J. Modrowski, 55 ECAB 

196 (2004); Thankamma Mathews, 44 ECAB 765 (1993); Jesus D. Sanchez, 41 ECAB 964 (1990).

9 See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: OWCP will consider an untimely 

application for reconsideration 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. 20 C.F.R. 

§ 10.607(b).

10 See Nelson T. Thompson, 43 ECAB 919 (1992).

11 See Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992).

12 See Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991).

13 See Leon J. Modrowski, supra note 8; Jesus D. Sanchez, supra note 8.

14 See Leona N. Travis, supra note 12.

15 See Nelson T. Thompson, supra note 10.
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the correctness of OWCP’s decision.16 The Board makes an independent determination of whether 

a claimant has demonstrated clear evidence of error on the part of OWCP such that OWCP abused 

its discretion in denying merit review in the face of such evidence.17

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 last merit decision of record was OWCP’s December 9, 2016 decision. Appellant had 

one year from that decision, i.e., Saturday, December 9, 2017, to request reconsideration. If the 

last day of the one-year time period falls on a Saturday, Sunday, or a legal holiday, OWCP will 

still consider a request to be timely filed if it is received on the next business day.18 Appellant, 

therefore, had until Monday, December 11, 2017 to timely request reconsideration. Timeliness is 

determined by the received date in OWCP’s iFECS.19 As appellant’s request for reconsideration 

was received in iFECS on December 12, 2017, the Board finds that OWCP properly found that 

appellant’s request for reconsideration was untimely filed.20 

The Board further finds that appellant has failed to demonstrate clear evidence of error on 

the part of OWCP. In support of his reconsideration request, appellant submitted his own 

statement which discussed the effect the December 2, 2014 employment incident had on his life. 

The underlying issue in this case, however, was whether the December 2, 2014 employment 

incident caused or aggravated his diagnosed medical conditions. The issue is medical in nature. 

Appellant’s general contention did not demonstrate clear evidence of error as it did not raise a 

substantial question as to the correctness of OWCP’s decision which denied his claim.21 His 

statement was not medical evidence establishing a causal relationship between his diagnosed 

conditions and the accepted December 2, 2014 employment incident. It is, therefore, insufficient 

to demonstrate clear evidence of error.22

Appellant also submitted medical reports from Dr. Weiss and copies of diagnostic testing 

dated June 18 and July 28, 2015. While the medical reports from Dr. Weiss discuss causal 

relationship, OWCP denied the claim as none of the physicians provided a well-reasoned and 

unequivocal explanation as to how the diagnosed conditions were caused or aggravated by the 

December 2, 2014 employment incident. In his February 14, 2017 report, Dr. Weiss concluded 

without any explanation that appellant sustained significant musculoskeletal trauma along with 

 

16 Leon D. Faidley, Jr., 41 ECAB 104 (1989).

17 See George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 

41 ECAB 458 (1990).

18 See supra note 6 at Chapter 2.1602.4 (February 2016); see also C.W., Docket No. 17-0836 (issued 

August 7, 2017).

19 See supra note 6.

20 20 C.F.R. § 10.607(a).

21 See N.S., Docket No. 17-1420 (issued January 23, 2018); see D.W., Docket No. 16-0945 (issued July 27, 2016).

22 See N.S., id.
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permanent orthopedic impairment and disability to his cervical spine secondary to the December 2, 

2014 work incident. While he provided an explanation in his December 6, 2017 report as to how 

the December 2, 2014 work-related motor vehicle accident led to irritated nerve roots and radicular 

pain and how appellant’s cervical bulging discs and protruding disc at C4-5 had increased his 

vulnerability to trauma, this report, which may have required further development if submitted 

prior to OWCP’s denial, it is not manifest on its face that OWCP committed an error in denying 

appellant’s claim. The Board has explained that a detailed, well-rationalized medical report which 

would have required further development if submitted prior to issuance of the denial decision, does 

not demonstrate clear evidence of error.23 Additionally, the diagnostic testing results, are

insufficient to establish that OWCP erred in its denial of appellant’s claim.24 The diagnostic testing 

does not raise a substantial question as to the correctness of OWCP’s December 9, 2016 merit 

decision or demonstrate clear evidence of error as it does not discuss the relevant issue of causal 

relationship.25 These reports therefore do not demonstrate clear evidence of error and would not 

require a review of a case.26 Thus, OWCP properly declined to reopen appellant’s case under 5

U.S.C. § 8128(a).

On appeal counsel contends that OWCP used the wrong dates to calculate the time limit as 

appellant’s request for reconsideration was delivered by Federal Express and duly served on 

OWCP on December 8, 2017 at 11:43 a.m. Proof of the delivery date and time was submitted. 

However, as previously noted, OWCP’s procedures provide that timeliness is determined by the 

received date as recorded in iFECS.27 As the date recorded in iFECS was December 12, 2017, 

more than one year after OWCP’s December 9, 2016 merit decision, appellant’s reconsideration 

request was untimely filed.

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.

 

23 See E.P., Docket No. 17-1086 (issued October 13, 2017). 

24 See G.B., Docket No. 13-1260 (issued December 2, 2013); see also W.R., Docket No. 09-2336 (issued 

June 22, 2010).

25 See G.B., id. 

26 See M.C., Docket No. 16-1135 (issued September 11, 2017); see also G.B., supra note 24. 

27 See supra note 6.
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ORDER

IT IS HEREBY ORDERED THAT the January 3, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 23, 2019

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