United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Rocky Point, NC, Employer

__________________________________________

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Docket No. 19-0635

Issued: August 23, 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 January 28, 2019 appellant filed a timely appeal from an August 29, 2018 nonmerit 

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

elapsed since the last merit decision dated December 13, 2016 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.2

 

1 5 U.S.C. § 8101 et seq.

2 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 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 September 3, 2016 appellant, then a 55-year-old rural carrier, filed an occupational 

disease claim (Form CA-2) alleging that she developed various bilateral upper extremity

conditions, neck pain, and cervicalgia due to repetitive gripping, pulling, squeezing, and lifting 

mail for 19 years while in the performance of duty. She indicated that she first became aware of 

her disease and its relationship to factors of her federal employment on July 22, 2016. On the 

reverse side of the claim form the employing establishment noted that appellant was last exposed 

to the conditions alleged to have caused her disease or illness on May 17, 2016, that she stopped 

work on July 22, 2016, and had not yet returned.

In a report dated July 22, 2016, Dr. Joanne Allen, Board-certified in physical medicine and 

rehabilitation, reviewed electromyogram (EMG) and nerve conduction velocity (NCV) studies and 

diagnosed bilateral carpal tunnel syndrome, neck pain, paresthesias of bilateral upper extremities, 

and right shoulder impingement syndrome.

In a development letter dated September 12, 2016, OWCP acknowledged receipt of 

appellant’s claim and informed her that additional evidence was necessary to establish her claim. 

It provided her a questionnaire for completion and afforded her 30 days to submit the necessary 

evidence.

By decision dated December 13, 2016, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish diagnosed medical conditions causally related to 

factors of her federal employment. 

On July 3, 2018 appellant requested reconsideration of OWCP’s December 13, 2016 

decision. She submitted additional evidence with her request including billing statements from 

her health insurance company, diagnostic reports dated February 22, 2018, a case copy request 

dated April 27, 2018, operative reports noting surgery on May 7, 2018, an illegible return to work 

slip, and a referral for physical therapy dated May 22, 2018. 

In a narrative report dated April 12, 2018, Dr. Andre Leonard, a Board-certified internist, 

related that appellant was first evaluated on January 27, 2015 after a fall at work in 

December 2014. He related her physical examination findings regarding her right shoulder and 

cervical spine relative to the December 2014 fall and noted that appellant had returned to work on 

May 17, 2016 with restrictions. 

In a work capacity evaluation (Form OWCP-5c) and duty status report (Form CA-17) dated 

May 22, 2018, Dr. Leonard indicated that appellant underwent carpal tunnel surgery on 

May 7, 2018. He noted that she was unable to perform her regular duties as a rural carrier, and 

could only perform sedentary work. In an attending physician’s report (Form CA-20) of the same 
3

date, Dr. Leonard marked the box “yes” when asked whether appellant’s condition was caused or 

aggravated by an employment activity. 

In a letter dated June 15, 2018, Dr. Leonard noted that appellant had been his patient since 

July 31, 2007, and that she suffered from sciatic pain, right shoulder pain, and left hand carpal 

tunnel pain. He related that she underwent carpal tunnel surgery on May 7, 2018 on her left wrist. 

Dr. Leonard further indicated that appellant’s work restrictions included no grasping, lifting, 

pulling greater than two pounds, climbing, and repetitive wrist movements. 

By decision dated August 29, 2018, OWCP denied appellant’s 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.4 OWCP’s 

regulations5establish 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.6 Timeliness is determined by the 

document receipt date, the received date in OWCP’s integrated Federal Employees’ Compensation 

System (iFECS).7 Imposition of this one-year filing limitation does not constitute an abuse of 

discretion.8

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.9 OWCP 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.10 

 

3 See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-0440 (issued March 16, 2009).

4 20 C.F.R. § 10.607(a).

5 V.G., Docket No. 19-0038 (issued June 18, 2019); J.W., Docket No. 18-0703 (issued November 14, 2018); 20 

C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

6

J.W., id.; Robert F. Stone, 57 ECAB 292 (2005).

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

8 S.T., Docket No. 18-0925 (issued June 11, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. 

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

9 C.V., Docket No. 18-0751 (issued February 22, 2019); 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).

10 See D.G., Docket No. 18-1038 (issued January 23, 2019); Gladys Mercado, 52 ECAB 255 (2001). 
4

In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears 

on the prior evidence of record.11

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

issue which was decided by OWCP.12 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.13 Evidence which does not raise a 

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

clear evidence of error.14 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.15 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.16 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 

the correctness of OWCP’s decision.17 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.18

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.

OWCP’s regulations establish a one-year time limit for requesting reconsideration, which 

begins on the date of the original merit decision. The most recent merit decision was OWCP’s 

December 13, 2016 decision, which denied appellant’s occupational disease claim. OWCP 

received her request for reconsideration on July 3, 2018, which was outside the one-year time limit. 

 

11 V.G., supra note 5; see E.P., Docket No. 18-0423 (issued September 11, 2018); Nelson T. Thompson, 43 ECAB 

919 (1992).

12 S.T., supra note 8; see C.V., supra note 9; Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 

1153 (1992).

13 S.T., supra note 8; see E.P., supra note 11; Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 

ECAB 227 (1991).

14 V.G., supra note 5; see C.V., supra note 9; Leon J. Modrowski, supra note 9; Jesus D. Sanchez, supra note 9.

15 V.G., supra note 5; see E.P., supra note 11; Leona N. Travis, supra note 13.

16 Supra note 11.

17 D.G., supra note 10; Leon D. Faidley, Jr., 41 ECAB 104 (1989).

18 See C.V., supra note 9; George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition 

for recon. denied, 41 ECAB 458 (1990).
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Consequently, appellant must demonstrate clear evidence of error by OWCP in denying her claim 

for compensation.19

The Board finds that the evidence submitted by appellant in support of her request for 

reconsideration does not raise a substantial question as to the correctness of OWCP’s 

December 13, 2018 merit decision or shift the weight of the evidence of record in her favor.

In support of her reconsideration request, appellant submitted billing statements from her 

health insurance company, a diagnostic report dated February 22, 2018, an April 12, 2018 

narrative report from Dr. Leonard in which he related appellant’s treatment for a fall at work in 

December 2014, a case copy request dated April 27, 2018, operative reports noting surgery on 

May 7, 2018, a referral for physical therapy dated May 22, 2018, and various form reports dated 

May 22, 2018 detailing appellant’s work restrictions. She has not explained how this evidence 

raises a substantial question regarding the correctness of OWCP’s initial decision denying her 

claim for bilateral carpal tunnel syndrome.

20

 This evidence does not offer a rationalized medical 

opinion that OWCP’s decision was incorrect and is not 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.21

OWCP also received a narrative report from Dr. Leonard dated June 15, 2018 in which he 

indicated that appellant underwent carpal tunnel surgery on May 7, 2018 and that she had 

restrictions regarding grasping, lifting, and pulling. Dr. Leonard also related that she suffered from 

sciatic pain, right shoulder pain, and left hand carpal tunnel pain. While this evidence contains 

new information, it does not demonstrate that OWCP’s decision was in error at the time that it was 

issued. 

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 insufficient to demonstrate clear evidence of 

error.22 

Appellant has not demonstrated clear evidence of error. The Board finds that the evidence 

appellant submitted on reconsideration is insufficient to shift the weight of the evidence in favor 

of her claim or raise a substantial question that OWCP erred in its December 13, 2016 decision. 

Thus, OWCP properly denied her untimely request for reconsideration.

 

19 20 C.F.R. § 10.607(b).

20 See P.B., Docket No. 18-0265 (issued September 5, 2018).

21 T.S., Docket No. 19-0056 (issued July 1, 2019). 

22 F.A., Docket No. 19-0321 (issued July 5, 2019). 
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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 August 29, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 23, 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