United States Department of Labor

Employees’ Compensation Appeals Board

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J.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Modesto, CA, Employer

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Docket No. 18-0066

Issued: May 13, 2019

Appearances: Case Submitted on the Record 

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 10, 20171appellant filed a timely appeal from an April 10, 2017 nonmerit 

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

elapsed from OWCP’s last merit decision, dated January 8, 2016, to the filing of this appeal, 

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from April 10, 2017, the date of OWCP’s last decision was October 7, 

2017, a Saturday; consequently, the period for filing the appeal ran to the next business day, Tuesday, October 10, 

2017. See 20 C.F.R. § 501.3(f)(2). Since the appeal was received by the Clerk of the Appellate Boards on October 10, 

2017 is considered timely filed. See 20 C.F.R. § 501.3(f).
2

pursuant to the Federal Employees’ Compensation Act2(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 of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On August 30, 1984 appellant, then a 29-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on August 1, 1984, he felt a sharp pain from the left side of his 

lower back which radiated down the back side of his leg to his calf when carrying both a mailbag 

and a second bundle of letters on his shoulder while in the performance of duty. He explained that 

the sharp pain caused him to fall from his jeep to the sidewalk/curb. Appellant stopped work on 

the date of injury.

OWCP accepted the claim for displacement of lumbar intervertebral disc without 

myelopathy and sprain of lumbosacral joint ligament. It paid appellant wage-loss compensation 

on the periodic rolls.

On March 25, 2015 OWCP referred appellant for a second opinion examination with

Dr. Aubrey M. Swartz, a Board-certified orthopedic surgeon, to determine the status of his 

accepted conditions and resultant disability.

In a May 7, 2015 report, Dr. Swartz noted his review of a statement of accepted facts and 

discussed appellant’s history of injury and treatment. He performed a physical examination which 

concluded that appellant had no residuals or disability causally related to the August 1, 1984 

employment injury. Dr. Swartz explained that the lumbar strain had improved and resolved by 

December 31, 1992. He opined that appellant was capable of returning to his date-of-injury job 

with modifications due solely to his age. Dr. Swartz advised that no further treatment was needed. 

On June 11, 2015 OWCP issued a notice of proposed termination of compensation. It

advised appellant that his wage-loss compensation and medical benefits would be terminated 

because he had no ongoing residuals of disability related to his accepted employment injury. 

OWCP indicated that the weight of the medical evidence, as demonstrated by the opinion of

Dr. Swartz, established that appellant’s work injury had resolved. It afforded appellant 30 days to 

submit additional evidence or argument. No response was received.

By decision dated July 16, 2015, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective that same date.

On October 20, 2015 appellant, through counsel, requested reconsideration and submitted 

additional evidence.

 

2 5 U.S.C. § 8101 et. seq.
3

In a July 20, 2015 report, Dr. David Broderick, specializing in orthopedic surgery, noted

appellant’s history of injury and treatment. He diagnosed chronic lumbosacral strain with left 

lower extremity radiculitis and opined that the August 1, 1984 employment injury had aggravated 

appellant’s symptomatology to the point that he could not continue with his work activities. 

Dr. Broderick further opined that appellant had chronic back symptomatology due to undergoing 

two previous back surgeries and a work injury 31 years prior. He explained that it was unlikely 

that he would be able to resume his former work activities without significant risk for flare up of 

symptomatology or reinjury and, thus, remained disabled from work.

In an August 26, 2015 supplemental report, Dr. Broderick explained that Dr. Swartz’s 

opinion varied wildly from those of other physicians who had examined appellant throughout the 

years. He noted that appellant had been unable to work for many years due to back pain. 

Dr. Broderick opined that appellant “certainly would not be able to perform the activities suggested 

by Dr. Swartz.” He opined that it would be difficult “for an individual in the prime of his health 

without a history of two back surgeries and chronic sciatica.”

By decision dated January 8, 2016, OWCP denied modification of its July 16, 2015

decision. 

On January 10, 2017 appellant requested reconsideration of the January 8, 2016 decision. 

He submitted a statement, in which he disagreed with the termination of his wage-loss 

compensation and medical benefits. Appellant also submitted a statement from his wife, who 

noted her observations of appellant’s disability status and argued that Dr. Swartz was biased. 

Appellant also provided copies of evidence previously of record, including a copy of a 

July 9, 2015 affidavit from appellant, a November 6, 1992 report from his treating physician

Dr. Robert England, a general surgeon, medical reports from 2003 and 2013, an August 16, 2015 

letter from appellant to the employing establishment requesting to be reinstated, an October 15, 

2015 request for reconsideration, and various other letters regarding the status of appellant’s claim 

dated 2009, 2010, 2013, and 2015.

By decision dated April 10, 2017, OWCP denied appellant’s request for reconsideration.

LEGAL PRECEDENT 

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further 

merit review.3 This discretionary authority, however, is subject to certain restrictions. For 

instance, a request for reconsideration must be received within one year of the date of OWCP’s 

decision for which review is sought.4 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.5 Timeliness is determined by the document receipt date of the request for 

 

3 5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

4 20 C.F.R. § 10.607(a).

5 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).
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reconsideration as indicated by the received date in the integrated Federal Employees’

Compensation System (iFECS).6 Imposition of this one-year filing limitation does not constitute 

an abuse of discretion.7

OWCP may not deny a reconsideration request solely because it was untimely filed. When 

a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited 

review to determine whether it demonstrates clear evidence of error.8 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 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.10

OWCP’s 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.11 

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

evidence of error on the part of OWCP.12

 

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

7 G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. 

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

8 See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4 2018); Charles J. Prudencio, 41 ECAB 

499, 501-02 (1990).

9 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See 

also 20 C.F.R. § 10.607(b); supra note 6 at Chapter 2.1602.5 (February 2016).

10 J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

11 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 6 at Chapter 2.1602.5(a) (February 2016).

12 D.S., Docket No. 17-0407 (issued May 24, 2017).
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ANALYSIS

The Board finds that this case is not in posture for decision.

The most recent merit decision of OWCP was the January 8, 2016 decision. One year from 

January 8, 2016 was January 8, 2017. As that date fell on a Sunday, appellant had until Monday, 

January 9, 2017 to timely request reconsideration.13 As OWCP received appellant’s 

reconsideration request on Tuesday, January 10, 2017, more than one year after the January 8, 

2016 decision, the request was untimely filed. 

The proper standard of review for an untimely reconsideration request is the clear evidence 

of error standard. In denying appellant’s reconsideration request, OWCP applied the standard of 

review for timely requests for reconsideration.14 As OWCP applied the incorrect standard of 

review to the untimely request for reconsideration, the Board will set aside OWCP’s April 10, 

2017 decision and remand the case for proper review under the clear evidence of error standard as 

required by regulations.15

CONCLUSION

The Board finds that this case is not in posture for decision.

 

13 Supra note 5.

14 See L.W., Docket No. 16-1202 (issued January 25, 2018); H.L., Docket No. 13-2077 (issued March 20, 2014).

15 See 20 C.F.R. § 10.607(b).
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ORDER

IT IS HEREBY ORDERED THAT the April 10, 2017 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further action consistent with 

this decision.

Issued: May 13, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy 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