United States Department of Labor

Employees’ Compensation Appeals Board

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C.Y., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Scotch Plains, NJ, Employer

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Docket No. 18-0693

Issued: December 7, 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 February 13, 2018 appellant filed a timely appeal from a January 9, 2018 nonmerit 

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

elapsed from the last merit decision, dated December 21, 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 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.
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FACTUAL HISTORY

On June 15, 2016 appellant, a 27-year-old mail carrier, filed a traumatic injury claim (Form 

CA-1) alleging that she sustained a right foot injury at approximately 3:00 p.m. that day when she 

was descending steps while in the performance of duty. 

In a June 29, 2016 letter, OWCP advised appellant of the deficiencies of her claim and 

afforded her 30 days to submit additional evidence and to respond to its inquiries. 

In response, appellant submitted a series of physical therapy reports dated May 24 through 

July 22, 2016.

Appellant further submitted reports dated July 11 and 18, 2016 from Dr. Richard Schaller, 

a Board-certified emergency medicine specialist, who diagnosed acute right ankle pain and acute 

pain of right knee.

By decision dated August 10, 2016, OWCP accepted that the June 15, 2016 employment 

incident occurred as alleged, but denied the claim because the medical evidence of record was 

insufficient to establish causal relationship between appellant’s diagnosed right ankle and right 

knee contusions and the accepted June 15, 2016 employment incident. 

On October 12, 2016 appellant requested reconsideration and submitted additional medical 

evidence in support of her claim, including a September 14, 2016 report from Dr. Liza Rodriguez, 

a Board-certified anesthesiologist, who diagnosed right ankle tendinitis and concluded that 

appellant was injured after a near fall off stairs while delivering mail.

By decision dated December 21, 2016, OWCP denied modification of its prior decision

because the medical evidence of record was insufficient to establish that appellant’s right ankle 

tendinitis was causally related to the accepted June 15, 2016 employment incident. 

Appellant requested reconsideration on December 26, 2017 as recorded in the Integrated

Federal Employees’ Compensation System (iFECS). 

By decision dated January 9, 2018, OWCP denied appellant’s request for reconsideration, 

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

LEGAL PRECEDENT

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

matter of right.2 OWCP, through its regulations, has imposed limitations on the exercise of its 

discretionary authority under section 8128(a).3 One such limitation provides that an application 

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

 

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

3 See Annette Louise, 54 ECAB 783, 789-90 (2003).
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review is sought.4 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).5

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

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

decision. The reconsideration request must establish that OWCP’s decision was, on its face, 

erroneous.6

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

issue which was decided by OWCP.7 The evidence must be positive, precise, and explicit and 

must be manifest on its face that OWCP committed an error.8 Evidence that does not raise a 

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

clear evidence of error.9 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.10 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.11

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 prima facie shift the weight of the evidence in 

favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.12 

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.13

ANALYSIS

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

reconsideration was untimely filed. OWCP’s regulations and procedures establish a one-year time 

limitation for requesting reconsideration, which begins on the date of the original OWCP 

 

4 20 C.F.R. § 10.607(a).

5 See Jesus D. Sanchez, supra note 2; F.R., Docket No. 09-575 (issued January 4, 2010).

6 20 C.F.R. § 10.607(b).

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

8 See Fidel E. Perez, 48 ECAB 663, 665 (1997); M.L., Docket No. 09-956 (issued April 15, 2010).

9 See Richard L. Rhodes, 50 ECAB 259, 264 (1999).

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

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

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

13 See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).
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decision.14 The Board has held that for OWCP decisions issued on or after August 29, 2011, the 

date of the application for reconsideration is the “received date” as recorded in iFECS.15 The most 

recent merit decision was OWCP’s December 21, 2016 decision denying appellant’s traumatic 

injury claim. Appellant had one year from the date of that decision to make a timely request for 

reconsideration. Because appellant’s request was not received by OWCP until December 26, 

2017, it was filed outside the one-year time period and is therefore untimely. Consequently, 

appellant must demonstrate clear evidence of error by OWCP in the denial of her claim.16

In its December 21, 2016 decision, OWCP denied appellant’s traumatic injury claim, 

finding that the medical evidence of record was insufficient to establish causal relationship 

between her diagnosed right ankle tendinitis and the accepted June 15, 2016 employment incident. 

To demonstrate clear evidence of error, it is not sufficient merely to show that the evidence could 

be construed so as to produce a contrary conclusion. The term clear evidence of error is intended 

to represent a difficult standard.17 Herein, the Board finds that appellant did not submit additional 

evidence along with her untimely request for reconsideration. Without the submission of 

additional evidence, appellant has not met her burden of proof to demonstrate clear evidence of 

error.

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.

 

14 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

15 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016); see 

supra note 12.

16 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

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

Dean D. Beets, supra note 7.
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ORDER

IT IS HEREBY ORDERED THAT the January 9, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 7, 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