United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Bedford, OH, Employer

__________________________________________

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Docket No. 19-1367

Issued: December 19, 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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 10, 2019 appellant filed a timely appeal from January 9 and May 7, 2019 nonmerit 

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

has elapsed since OWCP’s last merit decision, dated February 26, 2018, 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 this case.

ISSUES

The issues are: (1) whether OWCP properly denied appellant’s November 1, 2018 request

for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a); and (2) whether

OWCP properly denied appellant’s April 24, 2019 request for reconsideration, finding that it was

untimely filed and failed to demonstrate clear evidence of error.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On November 5, 2016 appellant, then a 60-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that she injured her right shoulder on that date while in the performance of 

duty. In an employee statement dated November 5, 2016, she noted that, while throwing “Amazon 

parcels,” which were in a high stack with heavy parcels on top, the stack shifted and fell. Appellant

reportedly was not hit by the falling stack, but experienced right shoulder pain when she pushed 

the stack to avoid being hit by it.

Appellant submitted a supervisor statement dated November 5, 2016 from P.A. who 

corroborated her account of the events on that date. In addition she submitted initial treatment 

notes from various providers.

In a November 22, 2016 letter, the employing establishment challenged appellant’s claim, 

contending that she had failed to submit a rationalized medical opinion from a physician 

establishing a valid medical diagnosis causally related to the November 5, 2016 incident.

OWCP, in a development letter dated January 17, 2017, informed appellant of the 

deficiencies of her claim, and requested additional medical evidence, including a well-rationalized 

medical report from a physician, which provided an opinion as to how the reported work incident

caused or aggravated her claimed injury. It also emphasized that pain is not a valid diagnosis, but 

rather a symptom. OWCP afforded appellant 30 days to submit the necessary evidence.

OWCP thereafter received medical notes by Dr. Farrow indicating that appellant had neck 

and shoulder pain caused or aggravated by the reported November 5, 2016 employment incident

and that she could resume light work with restrictions.

By decision dated February 21, 2017, OWCP accepted that the November 5, 2016 

employment incident occurred as alleged. It denied the claim, however, finding that the evidence 

of record failed to establish a medical diagnosis in connection with the accepted November 5, 2016 

employment again explaining that pain is a symptom and not a diagnosis of a medical condition. 

OWCP found that appellant had not satisfied the medical component of fact of injury and, 

therefore, had not met the requirements to establish an injury as defined by FECA.

OWCP subsequently received additional medical evidence by Dr. Farrow indicating that 

appellant had right shoulder pain due to the November 5, 2016 employment incident and 

discussing her physical therapy, work capacity, and work restrictions.

On March 22, 2017 appellant requested a review of the written record by a representative 

of OWCP’s Branch of Hearings and Review regarding the February 21, 2017 decision.

OWCP continued to receive medical evidence, including progress notes dated January 10 

and April 27, 2017 from Dr. Frederick P. Wilson, an attending osteopath specializing in orthopedic

surgery. Dr. Wilson noted a history of the accepted November 5, 2016 employment incident. He 

reported examination findings and provided assessments of somatic dysfunction of the cervical, 

thoracic, and rib cage regions, and cervicalgia.
3

By decision dated June 27, 2017, an OWCP hearing representative affirmed the 

February 21, 2017 decision, finding that the medical evidence of record did not contain a 

rationalized medical opinion establishing that appellant’s right shoulder strain was causally related

to the accepted November 5, 2016 employment incident.

OWCP received additional progress notes dated February 14, May 25, and July 24, 2017 

from Dr. Wilson. Dr. Wilson again noted appellant’s history of injury and his prior assessments 

of somatic dysfunction of the cervical, thoracic, and rib cage regions, and cervicalgia. He also 

provided assessments of right rotator cuff tendinitis and cervical degenerative disc disease.

In a letter received by OWCP on December 26, 2017, appellant requested reconsideration 

of the June 27, 2017 decision. Appellant submitted a medical report by Dr. Farrow who indicated

that she had a right shoulder strain directly related to her November 5, 2016 on-the-job injury.

OWCP, by decision dated February 26, 2018, denied modification of the June 27, 2017 

decision, finding that the medical evidence submitted did not provide medical rationale needed to 

establish causal relationship between appellant’s diagnosed right shoulder and cervical conditions 

and her accepted employment incident of November 5, 2016.

OWCP subsequently received duplicate copies of Dr. Wilson’s January 10 and April 27, 

2017 progress notes.

On November 1, 2018 appellant requested reconsideration of the February 26, 2018 

decision.

By decision dated January 9, 2019, OWCP denied appellant’s request for reconsideration 

of the merits of her claim pursuant to 5 U.S.C. § 8128(a), finding that the evidence submitted was 

repetitious and duplicative.

On April 24, 2019 appellant requested reconsideration of the February 21, 2017 decision. 

She did not submit additional evidence with her request.

OWCP, by decision dated May 7, 2019, denied appellant’s request for reconsideration 

because it was untimely filed and failed to demonstrate clear evidence of error. It noted that she 

had not submitted any evidence to demonstrate clear evidence of error in either its original decision 

of February 21, 2017, or its last merit decision of February 26, 2018.

LEGAL PRECEDENT -- ISSUE 1

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

matter of right.2 OWCP has discretionary authority in this regard and has imposed certain 

 

2 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).
4

limitations in exercising its authority.3 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.4 

A timely request for reconsideration, including all supporting documents, must set forth 

arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.5 When a timely request for reconsideration does not meet at least one of 

the above-noted requirements, OWCP will deny the request for reconsideration without reopening 

the case for a review on the merits.6

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly denied appellant’s November 1, 2018 request for

reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

7

In her timely application for reconsideration, appellant did not establish that OWCP 

erroneously applied or interpreted a specific point of law, nor did she advance a relevant legal 

argument not previously considered by OWCP.8 Consequently, she is not entitled to a review of 

the merits of her claim based on the first and second above-noted requirements under 20 C.F.R. 

§ 10.606(b)(3).9

The underlying issue in this case is whether appellant sustained a right shoulder injury 

causally related to the accepted November 5, 2016 employment incident. That is a medical issue 

which must be addressed by relevant medical evidence not previously considered.10 Appellant 

submitted Dr. Wilson’s January 10 and April 27, 2017 progress notes. However, this evidence is

duplicative of evidence previously submitted and considered by OWCP in its earlier merit

decisions dated June 27, 2017 and February 26, 2018. The Board has held that the submission of

evidence which repeats or duplicates evidence already in the case record does not constitute a basis 

 

3 20 C.F.R. § 10.607.

4

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision for which review is sought. 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.

5

Id. at § 10.606(b)(3).

6

Id. at § 10.608(a), (b).

7 See R.S., Docket No. 19-0312 (issued June 18, 2019); G.Q., Docket No. 18-1697 (issued March 21, 2019).

8 See R.S., id.; T.B., Docket No. 18-1214 (issued January 29, 2019); C.B., Docket No. 08-1583 (issued 

December 9, 2008).

9

Id.

10 See A.M., Docket No. 18-1033 (issued January 8, 2019); see also Bobbie F. Cowart, 55 ECAB 746 (2004).
5

for reopening a case.11 Because appellant’s request for reconsideration did not include relevant 

and pertinent new evidence not previously considered she is not entitled to a review of the merits 

based on the third requirement under section 10.606(b)(3).12

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

LEGAL PRECEDENT -- ISSUE 2

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

merit review.13 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.14 Timeliness is determined by the document receipt date of

the request for reconsideration as indicated by the received date in iFECS.15 Imposition of this

one-year filing limitation does not constitute an abuse of discretion.16

OWCP may not deny a reconsideration request solely because it was untimely filed. When

a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited

review to determine whether it demonstrates clear evidence of error.17 If an application

demonstrates clear evidence of error, it will reopen the case for merit review.18

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 OWCP committed an error. Evidence that does not raise a substantial

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

evidence of error. It is not enough to merely 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

 

11 See A.G., Docket No. 19-0113 (issued July 12, 2019); L.R., Docket No. 18-0400 (issued August 24, 2018); T.B., 

Docket No. 18-0033 (issued May 23, 2018); Eugene F. Butler, 36 ECAB 393, 398 (1984).

12 20 C.F.R. § 10.606(b)(3)(iii); see M.C., Docket No. 18-0841 (issued September 13, 2019); D.P., Docket No. 17-

0290 (issued May 14, 2018).

13 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).

14 Supra note 7.

15 Supra note 4. 

16 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).

17 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).

18 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 4 at Chapter 2.1602.5 (February 2016).
6

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

of error, the evidence submitted 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’s

decision.19

OWCP’s procedures note that 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 that a schedule award was miscalculated). Evidence such as a detailed,

well-rationalized medical report which, if submitted before the denial was issued, would have

created a conflict in medical opinion requiring further development, is not clear evidence of error.20 

The Board makes an independent determination of whether a claimant has demonstrated clear

evidence of error on the part of OWCP.21

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s April 24, 2019 request for

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

OWCP’s regulations22 and procedures23 establish a one-year time limit for requesting

reconsideration, which begins on the date of the last merit decision issued in the case. A right to

reconsideration within one year also accompanies any subsequent merit decision on the issues.24 

The most recent merit decision was OWCP’s February 26, 2018 decision which denied

modification of its prior denial of appellant’s traumatic injury claim. As her request for

reconsideration was not received by OWCP until April 24, 2019, more than one year after the

February 26, 2018 decision, the Board finds that it was untimely filed. Because appellant’s request

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

her traumatic injury claim.

The Board further finds that appellant’s reconsideration request failed to demonstrate clear 

evidence of error on the part of OWCP in its last merit decision. Appellant did not submit any 

evidence in support of her reconsideration of the merits of her claim, therefore, she did not 

demonstrate clear evidence on the part of OWCP in issuing the February 26, 2018 decision.25 

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.

 

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

20 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 4 at Chapter 2.1602.5(a) (February 2016).

21 D.S., Docket No. 17-0407 (issued May 24, 2017).

22 20 C.F.R. § 10.607(a); see J.W., supra note 19; Alberta Dukes, 56 ECAB 247 (2005).

23 Supra note 4 at Chapter 2.1602.4 (February 2016); Veletta C. Coleman, 48 ECAB 367, 370 (1997).

24 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

25 S.J., Docket No. 17-1835 (issued December 19, 2018); C.Z., Docket No. 08-2309 (issued June 10, 2009).
7

CONCLUSION

The Board finds that OWCP properly denied appellant’s November 1, 2018 request for

reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). The Board further finds 

that OWCP properly denied appellant’s April 24, 2019 request for reconsideration, finding that it

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

ORDER

IT IS HEREBY ORDERED THAT the May 7 and January 9, 2019 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: December 19, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board