United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Hobe Sound, FL, Employer

__________________________________________

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Docket No. 18-0126

Issued: May 14, 2019

Appearances: Case Submitted on the Record

Capp Taylor, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 23, 2017 appellant, through counsel, filed a timely appeal from an April 26, 

2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed from OWCP’s last merit decision, dated April 14, 2016, to the filing of 

 

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

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

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 October 10, 2014 appellant, then a 40-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, while in the performance of duty on October 5, 2014, she picked 

up a heavy parcel, which started to fall out of her hand. When she tried to catch it, she pulled her 

back. Appellant did not stop work.

In a separate statement dated October 7, 2014, appellant indicated that she injured her back 

when she tried to lift a box on October 6, 2014. She explained that the box was heavier than she 

thought and when she tried to pick it up it slipped. Appellant noted that she then tried to avoid 

dropping it and that was when she felt pain. She explained that the incident occurred on Monday 

around 12:50 p.m. on her delivery route, but she did not report the incident that same day because 

she did not think that there was a serious injury until she woke up the following morning with 

sharp pains radiating up her back.

In support of her claim, appellant submitted an October 7, 2014 discharge instruction form 

from Dr. Dwight G. Dawkins, Board-certified in family practice, which noted back pain and injury 

with prescription for narcotic medication. She also submitted a State of Florida workers’

compensation report for a work-related injury. The form included bending and lifting restrictions. 

OWCP also received reports dated October 13 and November 3, 2014 from Dr. Daniel 

Husted, a Board-certified orthopedic surgeon, who noted that appellant presented with complaints 

of lumbar spine pain. Dr. Husted advised that she reported an injury had occurred at work on 

October 6, 2014. He related that appellant noted that her symptoms began as a result of bending 

over. Dr. Husted indicated that she described her symptoms as moderate with an aching pain in 

the lower back and right flank. He advised that appellant’s symptoms were aggravated by daily 

activities. Dr. Husted noted that she also complained of pain in the cervical spine. He diagnosed 

cervicalgia and opined that appellant had a lifting injury at work on October 6, 2014 with the onset 

of left-sided neck, trapezial, and thoracic pain and right-sided low back and buttock pain causing 

her to present to the emergency room. Dr. Husted also assessed low back pain and referred her to 

physical therapy. On November 3, 2014 the employing establishment executed an authorization 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that appellant submitted additional evidence on appeal. 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 evidence for the first time 

on appeal. Id.
3

for examination and/or treatment (Form CA-16) which authorized appellant to obtain medical 

treatment. 

On November 4, 2014 Dr. Husted placed appellant off work from November 5 through 

December 5, 2014, until she could be medically cleared. 

In a November 14, 2014 report of a lumbar magnetic resonance imaging (MRI) scan, read 

by Dr. Frederick Hartker, a Board-certified diagnostic radiologist, revealed a right paracentral disc 

extrusion and annular fissure extending minimally up behind the L1 vertebral body and no nerve 

root displacement or stenosis of indeterminate age. It also revealed a two- to three-millimeter 

broad-based left paracentral disc protrusion at L5-S1 and an annual fissure of indeterminate age 

producing slight displacement of the left S1 nerve root without stenosis.

In a November 24, 2014 report, Dr. Husted noted that he examined appellant in follow up 

for her lumbar spine injury for which she presented with pain. He diagnosed cervicalgia,

displacement of lumbar intervertebral disc, and lumbosacral neuritis. Appellant submitted a series 

of physical therapy reports dated from October 30 to November 4, 2014.

In a development letter dated December 10, 2014, OWCP advised appellant that when her 

claim was submitted it appeared to be a minor injury that resulted in minimal or no lost time from 

work and that, based upon these criteria, the employing establishment had not controverted

continuation of pay or challenged the merits of the case, and therefore payment of a limited amount 

of medical expenses had been administratively approved. It noted that the merits of the claim, 

however, had not been formally considered. OWCP explained that appellant’s claim was being 

reopened because the medical bills exceeded $1,500.00. It further explained that the evidence 

submitted was insufficient to establish that she actually experienced the incident or employment 

factor alleged to have caused the injury and requested that she complete an attached questionnaire. 

OWCP also noted that appellant needed to submit a comprehensive narrative medical report from 

her attending physician, as the current record did not include a diagnosis of a medical condition 

associated with her employment incident. It afforded her 30 days to respond. 

OWCP subsequently received a series of physical therapy reports dated November 24 to

December 16, 2014, State of Florida workers’ compensation reports dated October 12 and 

December 12, 2014, and an October 10, 2014 authorization for examination and/or treatment

(Form CA-16) which was completed by appellant and her supervisor.

OWCP received a copy of the October 13, 2014 report from Dr. Husted in which he noted 

that appellant reported continued lumbar and cervical spine pain, but was stable. Dr. Husted 

diagnosed cervicalgia and recommended that she take part in physical therapy. He continued to 

treat appellant and submitted a December 29, 2014 report in which he diagnosed lumbosacral 

neuritis.

By decision dated January 21, 2015, OWCP denied appellant’s traumatic injury claim 

finding that fact of injury had not been established as the evidence submitted did not establish that 

the injury and or event(s) occurred as alleged.

On January 21, 2016 appellant, through counsel, requested reconsideration. Counsel 

argued that the factual component of appellant’s claim was consistent in her statements and the 
4

medical records she had submitted. He also argued that Dr. Husted had sufficiently described the 

work incident and provided an opinion that the condition was work related. Medical reports

already of record were resubmitted.

By decision dated April 14, 2016, OWCP modified the January 21, 2015 decision finding

that fact of injury had been established. However, the claim remained denied because the medical 

evidence of record did not establish that the diagnosed conditions were causally related to the 

accepted “October 6, 2014” employment incident. 

Appellant, through counsel, requested reconsideration on April 17, 2017. In an addendum 

to his request for reconsideration, counsel enclosed an April 12, 2017 report from Dr. Husted in 

which he addressed causation, the mechanism of injury, and restrictions.

In the April 12, 2017 report, Dr. Husted noted that appellant was lifting a box on October 6, 

2014 when she experienced an onset of neck, trapezial, thoracic, and low back and buttock pain 

causing her to go to the emergency room. He advised that he initially saw her on October 13, 2014 

and that she denied a prior history of back pain. Dr. Husted indicated that appellant noted pain in 

any persistent position. He explained that he ordered a Medrol Dosepak along with antiinflammatories and physical therapy. However, appellant’s low back pain persisted with activity, 

including sitting. Dr. Husted also noted that he ordered a lumbar spine MRI scan and that it 

demonstrated herniations at L1-L2 and L5-S1. He opined that the herniated discs could not be 

“aged” and that “more likely than not this injury was secondary to lifting boxes at work.”

Dr. Husted noted no evidence of a degenerative process or a problem that preexisted the injurious 

event. He therefore concluded that, more likely than not, the diagnosis of herniated disc at L1-L2 

and L5-S1 with resultant lumbar radiculopathy was secondary to the lifting incident of 

October 6, 2014.

By decision dated April 26, 2017, OWCP denied appellant’s request for further merit 

review finding that her request 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.4 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.5 Timeliness is determined by the document receipt date of 

the request for reconsideration as indicated by the received date in the integrated Federal 

 

4 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).

5 20 C.F.R. § 10.607(a).
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Employees’ Compensation System (iFECS).6 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.7

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.8 If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.9

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 

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.10

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.11 

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

evidence of error on the part of OWCP.12 

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.

 

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

7 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).

8 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).

9 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 6 at Chapter 2.1602.5 (February 2016).

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

11 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 5 at Chapter 2.1602.5(a) (February 2016).

12 D.S., Docket No. 17-0407 (issued May 24, 2017).
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OWCP’s regulations13 and procedures14 establish a one-year time limitation for requesting 

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

reconsideration within one year also accompanies any subsequent merit decision on the issues.15 

The most recent merit decision was OWCP’s April 14, 2016 decision which found that the 

evidence of record was insufficient to establish causal relationship. As her request for 

reconsideration was not received by OWCP until April 17, 2017, more than one year after the 

April 14, 2016 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 

total disability compensation for the period alleged.

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

the part of OWCP in its last merit decision. OWCP denied her traumatic injury claim as the 

medical evidence of record failed to establish a causal relationship between the diagnosed 

conditions and the accepted October 6, 2014 employment incident. 

In her request for reconsideration, counsel indicated that appellant had established the 

medical component of her claim and submitted an April 12, 2017 report from Dr. Husted. In this 

report, Dr. Husted provided an opinion on causal relationship concluding that “more likely than 

not this injury was secondary to lifting boxes at work.” He noted that there was no evidence that 

[appellant’s] conditions were a degenerative process or a problem that preexisted the injurious 

event. Dr. Husted provided his conclusion that, more likely than not, the diagnosis of herniated 

disc at L1-L2 and L5-S1 with resultant lumbar radiculopathy was secondary to the lifting incident 

of October 6, 2014. 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. The submission of a 

detailed, well-rationalized medical report which, if submitted before the merit decision was issued, 

would have created a conflict in medical opinion requiring further development, is insufficient to 

demonstrate clear evidence of error.16 The Board makes an independent determination of whether 

a claimant has submitted clear evidence of error on the part of OWCP.17 As appellant has not 

submitted such evidence, the Board finds that she has not demonstrated clear evidence of error. 

On appeal counsel asserts that the reconsideration request was timely filed. The Board 

finds, however, that there is no evidence of record as of OWCP’s April 26, 2017 decision that 

supports this assertion.

 

13 J.W., Docket No. 18-0703 (issued November 14, 2018); 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 

247 (2005).

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

15 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

16 James R. Mirra, 56 ECAB 738 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, 

Chapter 2.1602.5(a) (October 2011).

17 Nancy Marcano, 50 ECAB 110 (1998).
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CONCLUSION

The Board finds that OWCP properly determined that appellant’s request for 

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

ORDER

IT IS HEREBY ORDERED THAT the April 26, 2017 decision of the Office of Workers’

Compensation Programs is affirmed. 

Issued: May 14, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board