United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Fajardo, PR, Employer

__________________________________________

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Docket No. 18-1042

Issued: February 12, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On April 24, 2018 appellant filed a timely appeal from a November 30, 2017 nonmerit 

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

elapsed from the last merit decision, dated December 18, 2015, 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.

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.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances as set forth 

in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.

On October 19, 2015 appellant, then a 56-year-old sales associate and distribution clerk, 

filed a traumatic injury claim (Form CA-1) alleging that, on October 9, 2015, she suffered an 

anxiety attack and high blood pressure due to the actions of the postmaster, M.V., and a coworker, 

W.M. She stopped working on the date of injury and returned to work on October 15, 2015. 

By decision dated December 18, 2015, OWCP denied the claim, finding that the factual 

evidence of record failed to establish that the October 9, 2015 employment incident occurred as 

alleged. 

On December 20, 2016 appellant requested reconsideration. In support of her 

reconsideration request, appellant submitted narrative statements dated December 16, 2016 and 

documentation related to an equal employment opportunity (EEO) grievance and settlement dated 

January 30 and December 30, 2016. She also submitted diagnostic test results dated August 17, 

2015 and September 26 and October 3, 2016. In a January 22, 2015 prescription note, it was 

reported by an unidentified health care provider that appellant was a postoperative patient of left 

knee arthroscopic surgery and needed more time to heal. Additionally, it was requested that 

appellant be afforded the use of a chair when knee symptoms such as pain, swelling, or decreased

range of motion appeared. 

Appellant further submitted a December 7, 2016 report from Dr. Gerardo Tejedor, a 

psychiatrist, who diagnosed generalized anxiety disorder. 

In a December 12, 2016 report, Dr. Benjamin R. Velazquez Lopez, a family practitioner, 

noted that he saw appellant on August 25, 2015 and at that visit, she was diagnosed with high 

blood pressure and general anxiety. He further noted that she was prescribed medication and 

educated on taking her blood pressure twice a day. Dr. Lopez also indicated that on March 18, 

2016 he prescribed additional medication and asked for a cardiology evaluation. He noted that in 

May 2016, appellant was evaluated with a psychiatrist and cardiologist.

By decision dated March 7, 2017, OWCP denied appellant’s request for reconsideration 

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

Appellant subsequently filed an appeal with the Board. By decision dated August 7, 2017, 

the Board set aside OWCP’s March 7, 2017 decision as it failed to make findings or provide 

analysis on the issue of whether appellant had demonstrated clear evidence of error. 

By decision dated November 30, 2017, OWCP again denied appellant’s request for 

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

It found that appellant had submitted additional medical evidence, personal statements that 

provided a description of her work-related incidents which she believed contributed to her 

 

2 Docket No. 17-1067 (issued August 7, 2017).
3

condition, and grievance/settlement documents in support of her claim, but had not provided an 

argument in support of her contention that OWCP’s December 18, 2015 merit decision was 

improperly decided. 

LEGAL PRECEDENT

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

matter of right.3 OWCP, through its regulations, has imposed limitations on the exercise of its 

discretionary authority under section 8128(a).4 One such limitation provides that an application 

for reconsideration must be received within one year of the date of OWCP’s decision for which 

review is sought.5 The Board has found that the imposition of this one-year time limitation does 

not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).6

Section 10.607(b) provides that OWCP will consider an untimely request for 

reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit 

decision. 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).7 Imposition of this one-year filing limitation does not constitute an abuse of discretion.8

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

a claimant’s application for review is untimely filed, it must nevertheless undertake a limited 

review to determine whether it demonstrates clear evidence of error.

9

 If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.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 be 

manifest on its face that OWCP committed an error.12 Evidence that 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 

 

3 See Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

4 See Annette Louise, 54 ECAB 783, 789-90 (2003).

5 20 C.F.R. § 10.607(a).

6 See Jesus D. Sanchez, supra note 3; F.R., Docket No. 09-0575 (issued January 4, 2010).

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

8 E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., supra note 3.

9 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

10 M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 7 at Chapter 

2.1602.5 (February 2016).

11 See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992).

12 See Fidel E. Perez, 48 ECAB 663, 665 (1997); M.L., supra note 10.

13 See Richard L. Rhodes, 50 ECAB 259, 264 (1999).
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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 The evidence submitted must 

not only be of sufficient probative value to create a conflict in medical opinion or demonstrate 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’s decision.16 

OWCP 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.17 

The Board makes an independent determination of whether a claimant has submitted 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.18

ANALYSIS

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.

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s March 17, 2017decision because the Board 

considered that evidence in its August 7, 2017 decision and found that OWCP properly determined 

that her request for reconsideration was untimely filed. Findings made in prior Board decisions 

are res judicata absent any further review by OWCP under section 8128 of FECA. In support of 

her reconsideration request, appellant submitted narrative statements and a December 7, 2016 

report from Dr. Tejedor who diagnosed generalized anxiety disorder and a December 12, 2016 

report from Dr. Lopez who diagnosed high blood pressure. Clear evidence of error is intended to 

represent a difficult standard.19 Even a detailed, well-rationalized medical report which would 

have created a conflict in medical opinion requiring further development if submitted prior to 

issuance of the denial decision, does not constitute clear evidence of error.20 It is not enough to 

 

14 See Leona N. Travis, 43 ECAB 227, 241 (1991).

15 See Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992).

16 See Veletta C. Coleman, 48 ECAB 367, 370 (1997).

17 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 7 at Chapter 2.1602.5(a) (February 2016).

18 See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

19 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5.a (February 2016); see 

Dean D. Beets, supra note 11.

20 See D.G., 59 ECAB 455 (2008); L.L., Docket No. 13-1624 (issued December 5, 2013).
5

show that evidence could be construed so as to produce a contrary conclusion. Instead, the 

evidence must shift the weight in appellant’s favor.21 

The narrative statements submitted by appellant merely reiterate the factual history 

previously of record and the medical evidence fails to address the October 9, 2015 work incident. 

Moreover, the Board finds the documentation related to appellant’s EEO grievance/settlement, her 

diagnostic testing results, and the January 22, 2015 note from an unidentifiable healthcare provider 

do not demonstrate clear evidence of error because they do not demonstrate that OWCP committed 

an error in denying appellant’s traumatic injury claim, nor raise a substantial question as to the 

correctness of OWCP’s decision. Thus, the Board finds that the evidence does not demonstrate 

clear evidence of error on the part of OWCP in its December 18, 2015 decision.22 

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.

 

21 See M.N., Docket No. 15-0758 (issued July 6, 2015).

22 See also L.M., Docket No. 14-1738 (issued March 3, 2015) (where the claimant resubmitted medical reports 

previously of record, the Board found that the evidence was duplicative and failed to demonstrate clear evidence of 

error).
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ORDER

IT IS HEREBY ORDERED THAT the November 30, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 12, 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