United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Eau Clair, WI, Employer

__________________________________________

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Docket No. 18-0385

Issued: September 4, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 15, 2017 appellant filed a timely appeal from a November 1, 2017 nonmerit 

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

elapsed from the last merit decision dated May 16, 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 the claim.

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 21, 2014 appellant, then a 51-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that she injured her right shoulder on February 20, 2014 while performing 

 

1 5 U.S.C. § 8101 et seq.
2

continuous reaching and stretching in the course of her federal employment. OWCP accepted the 

conditions of right complete rotator cuff rupture and right sprain of shoulder, upper arm, and 

rotator cuff.2

Appellant stopped work in April 2014 when Dr. John Drawbert, a Board-certified 

orthopedic surgeon, performed surgical repair of a right rotator cuff tear. OWCP paid her wageloss compensation and placed her on the periodic compensation rolls in June 2014.

Appellant returned to modified duty on July 31, 2014 and gradually increased her work 

hours. On October 30, 2014 OWCP accepted a recurrence of disability (Form CA-2a). Appellant 

returned to part-time modified duty in November 2014 and continued to receive intermittent wageloss compensation.

Under OWCP File No. xxxxxx214, on January 28, 2015, OWCP accepted left rotator cuff 

tear and left impingement syndrome.

On February 27, 2015 Dr. Drawbert performed left rotator cuff repair and left carpal tunnel 

release. OWCP again placed appellant on the periodic compensation rolls. She returned to parttime modified duty on June 23, 2015, initially for two hours daily increasing to five hours a day in 

August 2015. Appellant stopped work on October 20, 2015. She filed claims for compensation

(Form CA-7) for total disability for the period October 17 to November 13, 2015. OWCP 

continued to pay compensation for three hours daily. Appellant returned to modified duty for two 

hours daily.3

Under OWCP File No. xxxxxx214, by decision dated January 26, 2016, OWCP denied 

appellant’s claim for compensation in excess of three hours daily on or after October 20, 2015. It 

found her claims for compensation were inconsistent with the medical evidence of record that 

indicated she could work five hours of limited duty daily. OWCP noted that it would reopen File 

No. xxxxxx111 for full adjudication with a written decision.4 Appellant continued to receive 

compensation for three hours daily under OWCP File No. xxxxxx214.

On February 16 and March 28, 2016 appellant requested reconsideration of the January 26, 

2016 OWCP decision under File No. xxxxxx214. In reports dated February 1 and 25, April 1 and

19, and May 2, 2016, appellant’s attending physician, Dr. Joseph T. Hebl, a family physician who 

practices occupational medicine, summarized her upper extremity and back conditions.5 On 

 

2 OWCP assigned File No. xxxxxx214. The record indicates that five of appellant’s claims have been combined 

with the instant case, OWCP File No. xxxxxx214, designated as the master file. Subsidiary files are OWCP File Nos. 

xxxxxx606, xxxxxx111, xxxxxx331, and xxxxxx289.

3 The employing establishment indicated that she received continuation of pay from October 31 through 

December 27, 2015. The record does not indicate when appellant returned to two hours of daily modified duty.

4 Under OWCP File No. xxxxxx111, appellant filed a traumatic injury claim on October 12, 2015 alleging that she 

injured her neck lifting trays of mail on October 9, 2015.

5 Dr. Hebl began treating appellant in March 2014.
3

May 2, 2016 he advised that she could work only two hours of light work daily for five days a 

week due to bilateral shoulder conditions and bilateral carpal tunnel syndrome.

An offer of limited duty was extended by the employing establishment on

December 2, 2015. This indicated that two hours of daily work were offered from 3:00 p.m. to 

5:00 p.m. with duties of answering telephones, customer service, and administrative duties. 

Appellant signed the offer on December 4, 2015.

Under OWCP File No. xxxxxx214, by decision dated May 16, 2016, OWCP reviewed the 

merits of appellant’s claim and denied modification of the decision dated January 26, 2016. It

indicated that it had reviewed a report from Dr. Hebl dated February 1, 2016. OWCP noted that 

even though Dr. Hebl found that she could work for five hours a day due to her shoulder condition, 

he deemed her totally disabled because the neck and back prevented her from all work. It found 

that the evidence submitted was insufficient to support an increase in disability causally related to 

the work injury of February 20, 2014 without an intervening cause.

In a May 2, 2016 report, received by OWCP on May 16, 2016, Dr. Hebl summarized 

appellant’s bilateral upper extremity conditions and described his treatment. He reiterated his 

findings and conclusions, including that appellant could only work two hours of light duty daily

due to her upper extremity conditions.

On June 23, 2016, under OWCP File No. xxxxxx111, OWCP accepted cervical strain.6 

Appellant thereafter filed claims for compensation (CA-7 forms) under OWCP File No. 

xxxxxx111. On July 28, 2016, under OWCP File No. xxxxxx289, OWCP accepted cervical and 

lumbar sprains.

7

Under File No. xxxxxx111, by letter dated August 1, 2016, OWCP informed appellant of 

the medical evidence needed to support causal relationship to establish her claims for wage-loss 

compensation. In correspondence dated August 4 and 22, 2016, appellant informed OWCP that 

she was claiming compensation from November 4, 2015 forward. She noted that she had received 

intermittent compensation under File No. xxxxxx214. In undated correspondence, appellant

indicated that she wanted to be compensated for 40 hours a week since all her injuries were 

employment related. She asked what additional information was needed. Appellant also submitted 

a number of medical reports from Dr. Hebl found in both OWCP File No. xxxxxx111 and in 

OWCP File No. xxxxxx289.

On September 29, 2016 OWCP combined OWCP File Nos. xxxxxx111 and xxxxxx289, 

with the former becoming the master file.

Under File No. xxxxxx111, in October 2016, OWCP referred appellant to Dr. Patrick M. 

Healy, a Board-certified orthopedic surgeon, for a second opinion evaluation. The statement of 

accepted facts (SOAF) provided Dr. Healy included accepted conditions of cervical and lumbar 

 

6 OWCP had initially denied the claim by decision dated March 9, 2016.

7 Under File No. xxxxxx289, appellant filed an occupational disease claim (Form CA-2) on April 1, 2016 alleging 

that her job duties caused neck and back conditions.
4

strain, bilateral rotator cuff tear, right shoulder sprain, left impingement syndrome, and bilateral 

carpal tunnel syndrome. OWCP asked Dr. Healy to provide an opinion on the specific disability 

period due to the accepted cervical sprain.

In an October 26, 2016 report, Dr. Healy noted his review of the record and described 

physical examination findings. He indicated that appellant continued to have residuals of the 

accepted cervical strain including persistent areas of low-grade spasm and persistent pain and 

weakness, and that she also had enough disability in her right shoulder that would prevent her 

return to a normal rural carrier route. Dr. Healy opined that it would be difficult to identify a 

specific period of disability.

On a work capacity evaluation (OWCP Form 5c) dated November 22, 2016, Dr. Hebl 

advised that due to ongoing neck and shoulder spasm, weakness, and decreased range of motion, 

appellant could only work restricted duty for up to three hours a day.

In a case doubling memorandum found in OWCP File No. xxxxxx111, on December 14, 

2016, OWCP indicated that it had combined File Nos. xxxxxx214, xxxxxx111, xxxxxx606, and 

xxxxxx331, with File No. xxxxxx214 becoming the master file.8 It informed appellant of the case 

doubling in a letter dated December 14, 2016. A duplicate of the case doubling memorandum, 

dated July 17, 2017, is found in OWCP File No. xxxxxx214.

Appellant continued to submit additional medical evidence from Dr. Hebl, contained in

OWCP File Nos. xxxxxx111 and xxxxxx289. OWCP File No. xxxxxx214 also contains medical 

evidence submitted subsequent to OWCP’s May 16, 2016 merit decision.

On August 31, 2017, under OWCP File No. xxxxxx214, appellant requested 

reconsideration. She maintained that her claim should be compensated fully since her cases had 

been combined with additional accepted conditions.

New evidence submitted in support of her reconsideration request included work and offwork capability forms from Dr. Hebl dated October 21, 2015 to June 28, 2016. On October 27, 

2015 Dr. Hebl advised that appellant could not work due to symptom flare-up caused by an 

October 9, 2015 employment injury. On October 27, 2015 he advised that appellant could return 

to light duty only for three hours daily, on November 4, 2015 he placed her off work again, and 

on December 17, 2015 he advised that she could return to light duty for two hours a day. Dr. Hebl

continued these restrictions through June 28, 2016. On November 29, 2016 he indicated that 

appellant could work three hours daily. Appellant also submitted treatment notes from Dr. Hebl 

dated June 28, 2016 through September 27, 2017. In each of these reports he discussed appellant’s 

condition and treatment up to that date.9

In the September 27, 2017 report, Dr. Hebl reported that beginning on October 9, 2015 

appellant had worsening radiating cervical pain and stiffness which continued. He indicated that 

 

8 The accepted conditions under the subsidiary files include bilateral carpal tunnel syndrome (OWCP File No. 

xxxxxx606), cervical strain (OWCP File No. xxxxxx111), backache (OWCP File No. xxxxxx331), and cervical and 

lumbar spine sprains (OWCP File No. xxxxxx289).

9 OWCP File Nos. xxxxxx111 and xxxxxx289 also contain evidence submitted on August 31, 2017.
5

beginning on December 29, 2016, after OWCP combined all her claims, he evaluated all 

appellant’s work injuries, and that he continued to see appellant on a monthly basis. Dr. Hebl 

noted in reports dated February 27, March 27, April 24, May 24, June 22, July 21, August 23, and 

September 27, 2017 that she reported increased neck and shoulder pain and stiffness with further 

loss of range of motion, and that she was struggling to work three hours a day. Physical 

examination demonstrated spasm and multiple areas of trigger point tenderness of the neck; 

significant weakness and positive Tinel’s and Phalen’s signs at the right wrist; and tenderness and 

spasm in the upper and lower back with pain at extreme range of motion. Dr. Hebl’s diagnoses 

included: chronic myofascial pain disorder of the cervical spine with cervicalgia; chronic 

myofascial pain disorder of the thoracic spine; right shoulder pain, weakness, and loss of range of 

motion, with clinical evidence of impingement syndrome, rule-out rotator cuff tear; bilateral hand 

paresthesias and dysesthesias with increased symptoms on the left; and worsening left shoulder 

pain, weakness, and loss of range of motion. He advised that all diagnosed conditions were 

causally and directly related to the repetitive activities of her job duties as a rural mail carrier. 

Dr. Hebl concluded that, due to worsening problems with her neck and shoulders, appellant could 

not work beyond three hours of light duty daily.

By decision dated November 1, 2017, OWCP denied appellant’s reconsideration request 

because it was untimely filed and failed to demonstrate clear evidence of error on the part of 

OWCP. It noted that appellant submitted medical reports dated October 21, 2015 to November 29, 

2016 and indicated that they were insufficient to demonstrate clear evidence of error. OWCP 

advised that if appellant felt her disability after October 9, 2015 was the result of that employment

injury, she should submit a claim for wage-loss compensation under File No. xxxxxx111.

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.10 When determining the one-year period for requesting 

reconsideration, the last day of the period should be included unless it is a Saturday, Sunday, or a 

federal holiday.11 Timeliness is determined by the document receipt date, i.e., the “received date”

in OWCP’s Integrated Federal Employees’ Compensation System.12 The Board has found that the 

imposition of the one-year time limitation does not constitute an abuse of discretionary authority 

granted OWCP under section 8128 of FECA.13

OWCP may not deny an application for review solely because the application was not 

timely filed. When an application for review is untimely filed, it must nevertheless undertake a 

 

10 20 C.F.R. § 10.607(a).

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

also M.A., Docket No. 13-1783 (issued January 2, 2014).

12 Federal (FECA) Procedure Manual, id. at Chapter 2.1602.4(b) (February 2016).

13 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).
6

limited review to determine whether the application demonstrates clear evidence of error.14 

OWCP’s regulations and 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(a), if the 

claimant’s application for review demonstrates clear evidence of error on the part of OWCP.15

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 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.16

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.17 

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

evidence of error on the part of OWCP.18

ANALYSIS

The Board finds that appellant has demonstrated clear evidence of error.

In its November 1, 2017 decision, OWCP properly determined that appellant’s request for 

reconsideration of the May 16, 2016 merit decision under OWCP File No. xxxxxx214 was 

untimely filed. Its regulations provide that the one-year time limitation period for requesting 

reconsideration begins on the date of the last merit decision.19 The last merit decision under that 

claim file was dated May 16, 2016. Because appellant’s request for reconsideration was received 

on August 31, 2017, more than one year after the May 16, 2016 merit decision, issued under 

 

14 See 20 C.F.R. § 607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

15 20 C.F.R. § 607(b); Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.1602.5(a) (February 2016).

16 Robert G. Burns, 57 ECAB 657 (2006).

17 Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.1602.5(a) (February 2016); J.S., Docket No. 16-

1240 (issued December 1, 2016).

18 See D.S., Docket No. 17-0407 (issued May 24, 2017).

19 20 C.F.R. § 10.607(a).
7

OWCP File No. xxxxxx214, OWCP properly determined that this request was untimely filed.20 

Therefore, appellant must demonstrate clear evidence of error on the part of OWCP with regard to 

the May 16, 2017 decision.

Appellant has continued to receive three hours of wage-loss compensation benefits daily 

under OWCP File No. xxxxxx214. She, however, only worked two or three hours daily, leaving 

a deficit in pay/compensation of two or three hours. Appellant has continued to claim 

compensation for the additional hours under several of the combined OWCP files in this case. 

On the day OWCP issued the last merit decision under OWCP File No. xxxxxx214, 

May 16, 2016, appellant submitted a May 2, 2016 report from Dr. Hebl. It is well established that 

when OWCP is adjudicating a claim, it is obligated to consider all evidence properly submitted by 

a claimant and received prior to the issuance of its final decision.21 When OWCP fails to properly 

consider relevant evidence submitted, it raises a substantial question as to the correctness of the 

decision and demonstrates clear evidence of error.22 As OWCP did not properly review this 

evidence, the Board finds that appellant demonstrated clear evidence of error in this case.23

Following OWCP’s May 16, 2016 merit decision, under OWCP File Nos. xxxxxx111 and 

xxxxxx289, it accepted cervical and lumbar strains. Appellant thereafter submitted a number of 

claims for compensation and additional medical evidence under OWCP File No. xxxxxx111. Even 

though OWCP File No. xxxxxx111 and other files were combined, there is no indication in the 

November 1, 2017 decision that OWCP considered those records, which were then part of the 

instant record, OWCP File No. xxxxxx214, to determine if they were sufficient to demonstrate 

clear evidence of error. As the Board found in the case of M.W., OWCP shall review the evidence 

submitted and arguments raised in support of the request and determine whether such evidence is 

sufficient to demonstrate error in its prior decision and shall then issue a decision containing

findings of fact and conclusions of law.24 In the case at hand, OWCP only indicated that it had 

reviewed medical reports dated October 21, 2015 through November 29, 2016. It did not reference

Dr. Hebl’s September 27, 2017 report or evidence found in File Nos. xxxxxx111 and xxxxxx289, 

submitted prior to the request for reconsideration on August 31, 2017.

The Board finds that appellant demonstrated clear evidence of error. OWCP combined 

appellant’s files. It should have determined if the evidence in any of the combined files 

demonstrated clear evidence of error. The decision dated November 1, 2017 is therefore reversed, 

and the case is remanded to OWCP. After such development deemed necessary, OWCP shall 

issue an appropriate decision.

 

20 Id. at § 10.607(a).

21 See J.H., Docket No. 15-0280 (issued November 18, 2015) (the Board found that OWCP is required to review 

all evidence submitted by a claimant and received by it prior to the issuance of its final decision, including evidence 

received on the date of the decision and a failure to do so demonstrates clear evidence of error).

22 Id.

23 A.D., Docket No. 16-1366 (issued April 6, 2017).

24 Docket No. 18-0111 (issued May 9, 2018).
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CONCLUSION

The Board finds that appellant demonstrated clear evidence of error.

ORDER

IT IS HEREBY ORDERED THAT the November 1, 2017 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: September 4, 2018

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