United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Madison, WI, Employer 

__________________________________________ 

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Docket No. 17-0302 

Issued: June 26, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 November 28, 2016 appellant, through counsel, filed a timely appeal from a 

November 1, 2016 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). The most recent merit decision was an October 9, 2015 decision of the Board, which 

became final after 30 days of issuance.2

 OWCP has not issued a merit decision since the Board’s 

October 9, 2015 merit decision. As the November 1, 2016 decision is the only decision issued 

within 180 days of this appeal, pursuant to the Federal Employees’ Compensation Act3

 (FECA) 

and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 20 C.F.R. § 501.6(d); see R.M., Docket No. 14-1213 (issued October 15, 2014). 

3

 5 U.S.C. § 8101 et seq.
2

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration as it 

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

FACTUAL HISTORY 

This case has previously been before the Board.4

 The facts of the case as presented in the 

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

On August 25, 2014 appellant, then a 52-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on July 25, 2014 she sustained an injury to her right knee when 

she was walking and her knee gave out, causing her to fall on her right knee. She stopped work 

on August 8, 2014 and returned on August 12, 2014.5

Dr. Timothy P. Vanderbilt, a Board-certified orthopedic surgeon, treated appellant. In an 

April 8, 2013 progress report, he related appellant’s complaints of persistent left knee and right 

knee pain. Dr. Vanderbilt explained that appellant felt she was putting more stress on her right 

knee in order to protect her left knee when she began to work 12-hour days. Upon examination 

of the bilateral lower extremities, he observed no joint swelling and full range of motion. 

Dr. Vanderbilt also noted tenderness to palpation at the right knee lateral joint and left knee 

medial joint. He indicated that appellant had “early arthritic changes, with overuse secondary to 

her job as a mail carrier, being on her feet for 12 hours a day, 6 days a week.” 

In an April 8, 2013 x-ray of the right knee, Dr. Jason W. Stephenson, a Board-certified 

diagnostic radiologist, reported no acute fracture or subluxation. He opined that appellant had 

mild patellofemoral joint and medial compartment osteophyte formation without joint space 

narrowing. 

On August 11, 2014 Mary Evenson, a physician assistant, noted that appellant was unable 

to work from August 9 through 10, 2014. 

By letter dated August 25, 2014, OWCP advised appellant that the evidence submitted 

was insufficient to establish her traumatic injury claim. It requested additional factual evidence 

to substantiate the factual elements of her claim and medical evidence to demonstrate that she 

sustained a diagnosed condition causally related to the July 25, 2014 employment incident. No 

additional evidence was received. 

OWCP denied appellant’s claim in a decision dated September 29, 2014 finding that 

appellant failed to establish fact of injury. It determined that the evidence of record was 

 4

 Docket No. 15-1438 (issued October 9, 2015). 

5

 The record reveals that appellant had a previously accepted claim under OWCP File No. xxxxxx501 for an 

August 21, 2009 employment injury to her left knee. Her claim was accepted for aggravation of osteoarthritis of the 

left knee. OWCP reviewed the medical evidence from OWCP File No. xxxxxx501 and copied pertinent medical 

evidence into this present claim. 
3

insufficient to substantiate that the July 25, 2014 incident occurred as alleged or that she had 

sustained a medical condition causally related to the alleged work incident. 

Dr. Geoffrey S. Baer, a Board-certified orthopedic surgeon, began to treat appellant. In 

reports dated November 10, 2014 to February 2, 2015, he related appellant’s complaints of 

continued pain localized to the lateral and medical aspects of her right knee. Dr. Baer noted that 

appellant currently worked with restrictions as a letter carrier for the employing establishment. 

Upon examination of appellant’s right lower extremity, he observed tenderness over the medial 

joint line and medial and lateral patellar facets. Sensation was normal to light and patellar 

apprehension and firm endpoint were negative. Dr. Baer reviewed an October 27, 2014 

magnetic resonance imaging (MRI) scan report of appellant’s right knee, which revealed a 

posterior root tear of the medial meniscus with multifocal cartilage loss along the central and 

posterior weight bearing surfaces of the medial and lateral patellofemoral articular surfaces. He 

opined that appellant had an “aggravation of right tricompartmental degenerative knee joint 

disease (DJD) with underlying medial meniscus tear.” In a February 2, 2015 work restriction 

note, Dr. Baer indicated that appellant should remain off work beginning January 31, 2015 due to 

worsening knee pain. 

On February 17, 2015 OWCP received appellant’s request for reconsideration. She 

resubmitted her Form CA-1, the physician assistant notes dated January 3 to September 24, 

2014, and Dr. Baer’s reports. 

OWCP received appellant’s response to its August 25, 2014 development letter on 

February 23, 2015. Appellant related that on July 25, 2014 she felt her right knee give out when 

she went down some steps while delivering mail. She indicated that she did not work the next 

day and stayed off her feet over the weekend. Appellant indicated that she went to the doctor’s 

office on August 8, 2014 and submitted her claim the next day. She reported that she had a 

previous job-related knee injury when she fell onto both her knees. Appellant also submitted an 

authorization for examination and/or treatment (Form CA-16), which was mostly illegible. 

Appellant continued to receive medical treatment from Dr. Baer. In progress notes dated 

February 12 and March 5, 2015, Dr. Baer indicated that he treated appellant for tricompartmental 

DJD of the right knee. He related that appellant had undergone physical therapy treatments and 

cortisone injections, but still complained of her knee giving out and getting stuck periodically. 

Dr. Baer provided examination findings and diagnosed right knee tricompartmental DJD with 

mechanical symptoms. 

In a March 5, 2015 preoperative evaluation, Leslie L. Goodavish, a physician assistant, 

discussed appellant’s history and conducted an examination. She observed tenderness over the 

medial line and pain on the patella. Ms. Goodavish diagnosed right knee medial meniscus tear. 

On March 16, 2015 appellant underwent right knee surgery. 

By decision dated April 9, 2015, OWCP affirmed the September 29, 2014 denial decision 

with modification. It accepted that the July 25, 2014 employment incident had occurred as 

alleged, but denied the claim finding insufficient medical evidence to establish that she sustained 

a right knee condition causally related to the accepted incident. 
4

Appellant appealed to the Board. By decision dated October 9, 2015, the Board affirmed 

the April 9, 2015 OWCP decision finding that appellant failed to meet her burden of proof to 

establish her traumatic injury claim. It found that the medical evidence of record was 

insufficient to establish that appellant sustained a right knee condition causally related to the 

July 25, 2014 employment incident.6

On January 6, 2016 appellant filed a claim for wage-loss compensation (Form CA-7) for 

the period March 16 to June 15, 2015. In a letter dated January 12, 2016, OWCP advised 

appellant that her Form CA-7 claim was not payable because her initial traumatic injury claim 

was denied in a decision dated September 29, 2014, which was upheld by reconsideration 

decision dated April 29, 2015 and by the Board on October 9, 2015. 

On October 24, 2016 OWCP received appellant’s request, through counsel, for 

reconsideration in a letter dated October 19, 2016. He alleged that OWCP committed clear error 

because it never considered evidence that was submitted after the April 9, 2015 OWCP decision 

and failed to fully develop appellant’s claim. Counsel observed that the Board had noted this 

evidence in its decision of October 9, 2015. He asserted that this new evidence established 

appellant’s traumatic injury claim. Counsel cited to and included copies of ECAB decisions I.C., 

Docket No. 14-170 (issued June 3, 2014) and A.B., Docket No. 10-1070 (issued March 8, 2011). 

By decision dated November 1, 2016, OWCP denied appellant’s October 24, 2016 

reconsideration request because it was untimely filed and failed to demonstrate clear evidence of 

error. It determined that the Board’s October 9, 2015 decision was the last merit review of the 

case and appellant’s reconsideration request was received on October 24, 2016. The request for 

reconsideration was not made within one year of the last merit decision and was therefore 

untimely. OWCP further found that appellant’s reconsideration request and evidence submitted 

failed to demonstrate clear evidence that OWCP’s most recent merit decision was in error. It 

specifically noted that, despite appellant’s attorney’s allegations, no new medical evidence was 

received after OWCP’s April 9, 2015 decision and before the Board’s October 9, 2015 decision. 

LEGAL PRECEDENT 

OWCP regulations provide that to be entitled to a merit review of an OWCP decision, an 

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

for which review is sought.7

 The one-year period begins on the date of the original decision. 

However, a right to reconsideration within one year accompanies any subsequent merit decision 

on the issues. This includes any hearing or review of the written record decision, any denial of 

modification following reconsideration, any merit decision by the Board, and any merit decision 

following action by the Board.8

 6 Supra note 4. 

7

 20 C.F.R. § 10.607(a). 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 U.S.C. § 8128(a); Leon D. 

Faidley, Jr., 41 ECAB 104, 111 (1989). 

8

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(a) (February 2016). 
5

OWCP, however, may not deny an application for review solely because the application 

was untimely filed. It may consider an untimely application for reconsideration if the evidence 

or argument contained in the reconsideration request demonstrates clear evidence of error on the 

part of OWCP.9

 In this regard, OWCP will conduct a limited review of how the newly submitted 

evidence bears on the prior evidence of record.10 Evidence that does not raise a substantial 

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

evidence of error.11 

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.12 It is not enough merely to show that 

the evidence could be construed so as to produce a contrary conclusion.13 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.14 The Board has held that even a report such as a detailed, well-rationalized 

medical report which, if submitted before the denial was issued, would have created a conflict in 

medical evidence requiring further development is insufficient to demonstrate clear evidence of 

error.15 OWCP procedures further provide that the term clear evidence of error is intended to 

represent a difficult standard.16 If clear evidence of error has not been presented, OWCP should 

deny the application by letter decision, which includes a brief evaluation of the evidence 

submitted and a finding made that clear evidence of error has not been shown.17

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

clear evidence of error on the part of OWCP such that it abused its discretion in denying merit 

review in the face of such evidence.18 

 9 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 

10 See 20 C.F.R. § 10.607(b); Nelson T. Thompson, 43 ECAB 919 (1992). 

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

12 20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997). 

13 See Leona N. Travis, 43 ECAB 227, 240 (1991). 

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

15 A.R., Docket No. 15-1598 (issued December 7, 2015). 

16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.5a (October 2011). 

17 Id.

18 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993). 
6

ANALYSIS 

The last merit decision in this case was the Board’s October 9, 2015 decision, which 

affirmed the denial of appellant’s traumatic injury claim. On October 24, 2016 OWCP received 

appellant’s request for reconsideration. In a decision dated November 1, 2016, it denied 

appellant’s request for reconsideration because it was untimely filed and failed to demonstrate 

clear evidence of error. 

The Board finds that OWCP properly determined that appellant failed to file a timely 

application for review. The one-year time limitation runs from the last merit decision of the 

case.19 Appellant therefore had one year from the Board’s October 9, 2015 decision to request 

reconsideration before OWCP. OWCP received appellant’s latest request for reconsideration on 

October 24, 2016, which was outside the one-year time limit.20 Consequently, appellant must 

demonstrate clear evidence of error by OWCP in denying her traumatic injury claim.21

The Board has reviewed the record and finds that the evidence submitted in the untimely 

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

last merit decision and is therefore insufficient to demonstrate clear evidence of error. 

Appellant’s traumatic injury claim was denied because the medical evidence of record 

failed to establish that appellant sustained a right knee condition causally related to the July 25, 

2014 employment incident. Counsel asserted that OWCP committed error because it did not 

consider evidence that was submitted after the April 9, 2015 OWCP decision. He provided 

copies of the ECAB decisions, which he asserted supported his argument that OWCP should 

further review appellant’s case. 

The Board finds that this evidence does not demonstrate clear evidence of error. 

Although counsel asserted that OWCP failed to consider medical evidence, a review of the 

record demonstrates that no medical evidence was received by OWCP after the April 9, 2015 

reconsideration decision and before the Board’s October 9, 2015 decision. The Board finds that 

the argument submitted by appellant in support of her reconsideration does not raise a substantial 

question as to the correctness of OWCP’s decision and is insufficient to demonstrate clear 

evidence of error. The underlying issue is a medical one, and had to be established through the 

submission of medical evidence. Appellant did not submit any additional medical evidence in 

support of her request for reconsideration of the April 9, 2015 decision. All of the evidence of 

record had been considered and reviewed by OWCP and the Board in the prior merit decisions. 

Appellant’s request for reconsideration does not demonstrate on its face that OWCP’s merit 

 19 Supra note 7. 

20 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602(4) (October 2011). 

For decisions issued on or after August 29, 2011, the one-year period begins on the date of the original decision, and 

the application for reconsideration must be received by OWCP within one year of the date of its decision for which 

review is sought. 

21 Supra note 8; Debra McDavid, 57 ECAB 149 (2005). 
7

decision was erroneous.22 Consequently, the reconsideration request is insufficient to establish 

clear error by OWCP with respect to her traumatic injury claim. 

The Board has found that the term “clear evidence of error” is intended to represent a 

difficult standard.23 It is not enough merely to show that the evidence could be construed so as 

to produce a contrary conclusion.24 The evidence submitted 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.25

On appeal, counsel alleges that OWCP’s decision was contrary to fact and law. As stated 

above, the Board finds that appellant has failed to support her reconsideration request with 

evidence or argument demonstrating that OWCP’s decision denying her traumatic injury claim 

was clearly erroneous. 

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. 

 22 See E.T., Docket No. 16-1912 (issued March 6, 2017). 

23 James R. Mirra, 56 ECAB 738 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, 

Chapter 2.1602.5(a) (October 2011). 

24 Supra note 12. 

25 Supra note 13. 
8

ORDER 

IT IS HEREBY ORDERED THAT the November 1, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 26, 2017 

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