United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Indianapolis, IN, Employer

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Docket No. 18-0579

Issued: September 14, 2018

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 24, 2018 appellant filed a timely appeal from an August 31, 2017 nonmerit 

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

lapsed from the last merit decision, dated June 3, 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. 

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 March 4, 2015 appellant, then a 58-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging that, on that date, he sustained a left ring finger, right thigh, and right knee 

 

1 5 U.S.C. § 8101 et seq.
2

injury when he caught himself from falling while delivering mail. He stopped work on 

March 5, 2015. OWCP accepted the claim for right quadriceps tendon tear, right knee medial 

meniscus tear, and left hand finger sprain of the fourth digit.

Appellant sought treatment with Dr. Nikhil G. Pandhi, a Board-certified orthopedic 

surgeon. On July 1, 2015 he underwent an OWCP-approved right knee arthroscopy. In an 

August 20, 2015 report, Dr. Pandhi reported that appellant was doing much better following his 

right knee arthroscopy. Appellant returned to work on August 25, 2015. 

On February 22, 2016 appellant filed a claim for a schedule award (Form CA-7). 

By development letter dated March 17, 2016, OWCP requested that appellant submit a 

report from his attending physician addressing his work-related condition, the date of maximum 

medical improvement (MMI), objective findings, subjective complaints, and an impairment rating 

rendered according to the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides).2 It afforded appellant 30 days to provide 

the requested information. 

In a May 3, 2016 medical report, Dr. Pandhi reported that appellant was doing well and 

could return to his full work activities. He provided physical examination findings and a review 

of diagnostic testing. Dr. Pandhi noted that the right knee did not have symptoms of instability, 

but that appellant had occasional discomfort along the medial joint line which was manageable. 

By decision dated June 3, 2016, OWCP denied appellant’s claim for a schedule award, 

finding that the evidence submitted was insufficient to establish that he sustained permanent 

impairment of a scheduled member or function of the body. 

On June 7, 2017 appellant requested reconsideration of the June 3, 2016 decision. He

contended that his physician failed to provide him with the relevant medical evaluation despite 

numerous requests. 

In support of reconsideration, appellant submitted an April 20, 2017 narrative report from

Dr. Pandhi. Dr. Pandhi explained that appellant was originally evaluated on March 6, 2015 for a 

March 4, 2015 injury to his right thigh. Appellant suffered a right quadriceps muscle rupture and 

right knee medial meniscus tear. Dr. Pandhi noted that the quadriceps injury healed uneventfully,

but that the right knee required surgery. On July 1, 2015 appellant underwent a right knee 

arthroscopy with partial medial meniscectomy and lateral partial meniscectomy without 

complication. Dr. Pandhi reported that postoperatively, appellant developed prepatellar bursitis

which was treated with a cortisone injection on August 20, 2015. He released appellant to full 

duty on May 3, 2016. Dr. Pandhi evaluated him once again on February 28, 2017 and reiterated 

the need for long-term core, hip, quadriceps, and hamstring strengthening. His July 1, 2015 

operative report was also submitted detailing findings from appellant’s right knee arthroscopy. 

 

2 A.M.A., Guides (6th ed. 2009).
3

By decision dated August 31, 2017, OWCP denied appellant’s reconsideration request, 

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

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.3 Timeliness is determined by the document receipt date (i.e., 

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS).

4

 

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

the discretionary authority granted OWCP under section 8128(a) of FECA.5

OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year filing 

limitation, if the claimant’s application for review demonstrates clear evidence of error on the part 

of OWCP in its most recent merit decision. To demonstrate clear evidence of error, a claimant 

must submit evidence relevant to the issue decided by OWCP. The evidence must be positive, 

precise, and explicit and it must manifest on its face that OWCP committed an error.6

To demonstrate clear evidence of error, the evidence submitted must not only be of 

sufficient probative value to create a conflicting 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.7

Evidence that does not raise a substantial question concerning the correctness of OWCP’s 

decision is insufficient to demonstrate clear evidence of error.8 It is not enough merely to show 

that the evidence could be construed so as to produce a contrary conclusion.9 This entails a limited 

review by OWCP of the evidence previously of record and whether the new evidence demonstrates 

clear error on the part of OWCP.10 The Board makes an independent determination as to whether 

a claimant has submitted clear evidence of error on the part of OWCP.11

 

3 20 C.F.R. § 10.607(a).

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

5 See M.P., Docket No. 17-0367 (issued March 12, 2018); Thankamma Mathews, 44 ECAB 765 (1993).

6 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7 Annie L. Billingsley, 50 ECAB 210 (1998).

8

Jimmy L. Day, 48 ECAB 652 (1997).

9

Id.

10 Id.

11 Cresenciano Martinez, 51 ECAB 322 (2000).
4

ANALYSIS

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

reconsideration was untimely filed within the one-year time limitation period set forth in 20 C.F.R.

§ 10.607.

In its August 31, 2017 decision, OWCP determined that appellant failed to file a timely 

application for review. An application for reconsideration must be received within one year of the 

date of OWCP’s merit decision.12 OWCP issued its most recent merit decision, denying 

appellant’s schedule award claim, on June 3, 2016. A request for reconsideration must be received 

by OWCP within one year of the date of OWCP’s decision for which review is sought.13 

Therefore, appellant had one year from June 3, 2016 to submit a timely request for 

reconsideration.14 Appellant’s request for reconsideration was received on June 7, 2016, more 

than one year after the date of the last merit decision of record on June 3, 2016. Thus, the request 

for reconsideration was untimely filed.

15

 

Appellant may request a schedule award or increased schedule award at any time based on 

evidence of a new exposure or medical evidence showing progression of an employment-related 

condition resulting in permanent impairment or increased impairment.16 The Board has explained

that if appellant has requested reconsideration, and has submitted new and relevant evidence with 

respect to a permanent impairment or an increased permanent impairment, then a claimant will be 

entitled to a merit decision on the issue,

17 but when a claimant does not submit any relevant 

evidence with respect to a permanent impairment or increased permanent impairment, then OWCP 

will properly consider the request under the standards for reconsideration. As appellant’s request 

for reconsideration was untimely he must demonstrate clear evidence of error by OWCP in 

denying his claim.18

 

12 20 C.F.R. § 10.607.

13 Supra note 4.

14 In computing the time for requesting reconsideration, the date of the event from which the designated time period 

begins to run shall not be included when computing the time period. However, the last day of the period shall be 

included unless it is a Saturday, a Sunday, or a legal holiday. The time for requesting reconsideration of OWCP’s 

June 3, 2016 decision began to run on June 4, 2016, and ended on June 3, 2017. The Board notes, however, that 

June 3, 2017 fell on a Saturday. It is well established that when a time limitation expires on a nonbusiness day, the 

limitation is extended to include the next business day. Therefore, because the time limitation for filing a request for 

reconsideration fell on Saturday, the time period for filing a request for reconsideration did not expire until the next 

business day, which was Monday, June 5, 2017. See M.H., Docket No. 13-1901 (issued January 8, 2014); Debra 

McDavid, 57 ECAB 149, 150 (2005); Angel M. Lebron, Jr., 51 ECAB 488, 490 (2000); Gary J. Martinez, 41 ECAB 

427, 427-28 (1990). 

15 P.R., Docket No. 14-0300 (issued May 12, 2014).

16 See C.H., Docket No. 17-0226 (issued June 26, 2018). 

17 See Linda T. Brown, 51 ECAB 115 (1999).

18 See Debra McDavid, 57 ECAB 149 (2005).
5

Appellant submitted a July 31, 2017 note from Dr. Pandhi releasing him from his care. 

This evidence is immaterial to his schedule award claim and fails to demonstrate clear evidence of 

error. The only other medical evidence submitted were Dr. Pandhi’s July 1, 2015 operative report 

and his April 20, 2017 narrative report. Dr. Pandhi provided a summary of injury, course of 

treatment, surgery, postoperative evaluation, and reported that appellant was released to full duty 

on May 3, 2016. This evidence did not provide a permanent impairment rating. It did not raise a 

substantial question as to the correctness of OWCP’s decision.19 Rather, these reports were 

substantially similar to Dr. Pandhi’s May 3, 2016 report which was reviewed by OWCP in its 

June 3, 2016 decision. This evidence was not positive, precise, and explicit in manifesting on its 

face that OWCP committed an error in denying his schedule award claim.

20

 The Board notes that 

clear evidence of error is intended to represent a difficult standard. Evidence, such as a detailed 

well-rationalized medical report, which if submitted before the merit denial might require 

additional development of the claim, is insufficient to demonstrate clear evidence of error.21 This 

evidence, however, is insufficient to establish that OWCP erred in its denial of appellant’s claim.22 

Appellant did not submit the type of positive, precise, and explicit evidence that manifests 

on its face that OWCP committed an error.23 Thus, he did not demonstrate clear evidence of error 

in the denial of his schedule award claim.24

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.

 

19 J.J., Docket No. 13-1363 (issued November 6, 2013).

20 See A.C., Docket No. 18-0201 (issued June 29, 2018); see also G.B., Docket No. 13-1557 (issued 

October 29, 2013).

21 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (February 2016).

22 See W.R., Docket No. 09-2336 (issued June 22, 2010).

23 J.T., Docket No. 10-0313 (issued February 24, 2010).

24 B.B., Docket No. 08-0232 (issued August 7, 2008).
6

ORDER

IT IS HEREBY ORDERED THAT the August 31, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 14, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board