United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., Appellant

and

U.S. POSTAL SERVICE, ROSELAND 

POST OFFICE, Chicago, IL, Employer

__________________________________________

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Docket No. 18-1765

Issued: June 11, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 21, 2018 appellant filed a timely appeal from a March 30, 2018 nonmerit 

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

elapsed from OWCP’s last merit decision, dated December 15, 2006, 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 determined that appellant’s request for 

reconsideration 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 been previously before the Board.2 The facts and circumstances as set forth 

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

follows.

By decision issued December 14, 2015,3the Board affirmed an OWCP decision dated 

June 10, 2015, which denied appellant’s April 8, 2015 request for an oral hearing before an OWCP 

hearing representative. 

In a letter dated November 29, 2016, appellant requested reconsideration with OWCP of 

the Board’s December 14, 2015 decision. She contended that OWCP had erred in denying her 

February 19, 2015 request for reconsideration of a nonmerit February 20, 2014 OWCP decision, 

as she had submitted new, relevant medical evidence meeting the requirements of 20 C.F.R. 

§ 10.606(b)(3).4 Appellant also asserted that the Board had erred by affirming OWCP’s denial of 

her request for an oral hearing. She also argued that OWCP did not develop the medical evidence 

in her claim as she had not been referred for a second opinion examination. Appellant referred 

generally to sections of OWCP’s regulations and procedures, and various Board precedents 

regarding OWCP’s duty to see that justice is done. She did not submit additional evidence in 

support of her November 29, 2016 request. 

By decision dated February 27, 2017, OWCP denied reconsideration, finding that 

appellant’s November 29, 2016 letter was not relevant and pertinent new evidence. It found that 

her assertions were insufficient to warrant reopening her claim for a merit review. Appellant then 

appealed to the Board.

By decision dated January 18, 2018,

5

the Board found that OWCP had erred in applying 

the standards for timely requests for reconsideration as set forth in 5 U.S.C. § 8128(a) and 

20 C.F.R. § 10.606(b)(3) to appellant’s November 29, 2016 request for reconsideration. The 

Board found that it had received appellant’s request on November 29, 2016, more than one year 

after the Board’s last merit decision of record of December 15, 2006. The Board set aside OWCP’s

February 27, 2017 decision and remanded the case to OWCP for issuance of an appropriate 

decision determined under the clear evidence of error standard.

On remand of the case, by decision dated March 30, 2018, OWCP denied appellant’s 

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

 

2 Docket No. 17-1682 (issued January 18, 2018); Docket No. 15-1679 (issued December 14, 2015); Docket No. 09-

2374 (issued June 17, 2010); Docket No. 06-1980 (issued December 15, 2006). 

3 Docket No. 15-1679 id.

4 Appellant had provided a January 29, 2015 letter from Dr. Christian Altman, a treating anesthesiologist, 

pulmonary function test results, and a pulmonary imaging study.

5 Docket No. 17-1682 supra note 2.
3

evidence of error. It found that appellant’s reconsideration request did not constitute relevant 

evidence as it merely reiterated the factual history of her claim and recited OWCP procedures.

LEGAL PRECEDENT

To be entitled to a merit review of an OWCP decision denying or terminating a benefit, an 

application for reconsideration must be received by OWCP within one year of the date of OWCP’s 

decision for which review is sought.6 Timeliness is determined by the document receipt date (i.e., 

the “received date” in OWCP’s integrated Federal Employees’ Compensation System.7 The Board 

has found that the imposition of the one-year time limitation does not constitute an abuse of the 

discretionary authority granted OWCP under section 8128(a) of FECA.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. 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 that is relevant to 

the issue that was decided by OWCP,10 is positive, precise, and explicit, and is manifest on its face 

that OWCP committed an error.11 The evidence must not only be of sufficient probative value to 

create a conflict in medical opinion or establish a clear procedural error, but must also shift the 

weight of the evidence in favor of the claimant and raise a substantial question as to the correctness 

of OWCP’s decision for which review is sought. Evidence that does not raise a substantial 

question is insufficient to demonstrate clear evidence of error. It is not enough merely to show 

that the evidence could be construed so as to produce a contrary conclusion. A determination of 

whether the claimant has demonstrated clear evidence of error entails a limited review of how the 

evidence submitted with the reconsideration request bears on the evidence previously of record.12

ANALYSIS

The Board finds that OWCP properly determined that appellant’s November 29, 2016 

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

 

6 20 C.F.R. § 10.607(a).

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

8 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 

9 F.N., Docket No. 18-1543 (issued March 6, 2019); 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) (the term clear evidence of error is intended 

to represent a difficult standard).

10 See F.N., id.; A.F., Docket No. 18-0645 (issued October 26, 2018); Dean D. Beets, 43 ECAB 1153 (1992). 

11 See F.N., supra note 9; A.F., id.; Leona N. Travis, 43 ECAB 227 (1991). 

12 J.S., Docket No. 10-0385 (issued September 15, 2010); B.W., Docket No. 10-0323 (issued September 2, 2010). 
4

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

submitted prior to the issuance of OWCP’s June 10, 2015 decision because the Board considered 

that evidence in its December 14, 2015 decision. Findings made in prior Board decisions are res 

judicata absent any further review by OWCP under section 8128 of FECA.13

OWCP’s regulations14 and procedures15 establish 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.16 

The most recent merit decision was the Board’s December 15, 2006 decision which affirmed 

OWCP’s May 22, 2006 decision denying appellant’s occupational disease claim as causal 

relationship was not established. As her request for reconsideration was not received by OWCP 

until November 29, 2016, more than one year after the Board’s December 15, 2006 decision, it 

was untimely filed.17 Because appellant’s request was untimely, she must demonstrate clear 

evidence of error on the part of OWCP in having denied her occupational disease claim.

18

OWCP denied appellant’s occupational disease claim as the medical evidence of record 

failed to establish a causal relationship between occupational exposures and claimed respiratory 

conditions. In her November 29, 2016 request for reconsideration, appellant asserted that medical 

evidence received by OWCP on February 19, 2015 was sufficient to establish causal relationship. 

The Board finds that this argument fails to demonstrate clear evidence of error as it is insufficient 

to demonstrate that evidence could be construed so as to produce a contrary conclusion.19 

Appellant also protested the denial of her request for an oral hearing and contended that OWCP 

failed to refer her for a second opinion examination. These arguments are irrelevant to the 

underlying issue of causal relationship and fail to demonstrate clear evidence of error in OWCP’s 

denial of appellant’s occupational disease claim.20

The Board finds that appellant’s arguments in the untimely request for reconsideration do 

not raise a substantial question as to the correctness of the final merit decision and are therefore 

insufficient to demonstrate clear evidence of error. The underlying issue in appellant’s claim is 

medical in nature with respect to establishing causal relationship. The Board notes that the term 

 

13 See J.L., Docket No. 17-1460 (issued December 21, 2018).

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

247 (2005).

15 FECA Procedure Manual, supra note 7 at Chapter 2.1604.4 (February 2016); see Veletta C. Coleman, 48 ECAB 

367, 370 (1997).

16 F.N., supra note 9; J.W., supra note 14; Robert F. Stone, 57 ECAB 292 (2005).

17 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

18 F.N., supra note 9.

19 Id., J.S., supra note 12; B.W., supra note 12.

20 F.N., supra note 9; see M.N., Docket No. 15-0758 (issued July 6, 2015).
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clear evidence of error is intended to represent a difficult standard.21 Even a detailed, wellrationalized medical report, which would have created a conflict in medical opinion requiring 

further development if submitted prior to issuance of the denial decision, is insufficient to 

demonstrate clear evidence of error.22 It is not enough to show that evidence could be construed 

so as to produce a contrary conclusion. Instead, the evidence must shift the weight in appellant’s 

favor.23

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. 

On appeal, appellant contends that OWCP erred in its March 30, 2018 decision by failing 

to address all relevant evidence she had submitted in her claim, citing to the Board’s order in J.A.

24

 

Additionally, she sets forth multiple grievances with the claims process which are passionate, but 

irrelevant. As set forth above, OWCP properly found that appellant’s November 29, 2016 request 

for reconsideration failed to demonstrate clear evidence of error.

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.

 

21 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011); see 

Dean D. Beets, supra note 10.

22 F.N., supra note 9; see D.G., 59 ECAB 455 (2008).

23 F.N., supra note 9; see M.N., supra note 20.

24 Docket No. 12-1902 (issued March 12, 2013) (where the Board set aside OWCP’s August 2, 2012 decision and 

remanded the case for additional development as OWCP had failed to fully consider the medical evidence of record).
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ORDER

IT IS HEREBY ORDERED THAT the March 30, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 11, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board