United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Port Richey, FL, Employer

__________________________________________

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Docket No. 19-0200

Issued: June 14, 2019

Appearances: Case Submitted on the Record

Kathryn Pedretty, for the appellant1

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 November 7, 2018 appellant, through his representative, filed a timely appeal from an 

August 16, 2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days has elapsed from the last merit decision, dated March 9, 2017, to the filing 

of this appeal, 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.3

 

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 5 U.S.C. § 8101 et seq.

3 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on 

appeal. Id.
2

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 January 12, 2017 appellant, then a 56-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on January 11, 2017, he sustained a “strange sensation and bump 

in upper right groin” while “transferring tray of mail from rear to front” while in the performance 

of duty. On the reverse side of the claim form, the employing establishment related that it could 

not determine whether he was injured in the performance of duty.

In an undated statement received by OWCP on January 19, 2017, appellant’s supervisor, 

M.G., indicated that, on January 11, 2017, appellant informed her that he may have a hernia. She 

indicated that appellant had related that he picked up a large parcel and felt a pop.

In a development letter dated January 23, 2017, OWCP advised appellant that the evidence 

submitted was insufficient to establish his claim. It provided a factual questionnaire for his 

completion and requested medical evidence in support of his claim. OWCP afforded appellant 30 

days to submit the necessary evidence. No response was received within the time allotted.

By decision dated March 9, 2017, OWCP denied appellant’s claim, finding that the 

evidence submitted was insufficient to establish that the January 11, 2017 incident occurred in the 

performance of duty as alleged. It concluded, therefore, that the requirements had not been met to 

establish an injury as defined by FECA.

In a report dated January 17, 2017, received by OWCP on March 10, 2017, Dr. Allan M. 

Spiegel, a neurology specialist, indicated that he examined appellant for right groin pain. He noted 

that appellant was carrying a 30-pound tray of mail from the rear to the front of his truck, and, 

when appellant leaned into the rear of his truck, he felt a twinge of pain in the right inguinal area 

which subsequently became swollen. Dr. Spiegel diagnosed inguinal hernia based on a physical 

examination and related that the diagnosis was a direct result of appellant’s employment-related 

duties on January 11, 2017. He requested authorization for an ultrasound of appellant’s groin.

In an ultrasound scan report dated July 28, 2017, Dr. R. Marvin Freedy, a Board-certified 

diagnostic radiologist, indicated impressions of suspected right inguinal hernia, identified on 

upright scanning.

In a report dated August 4, 2017, Dr. Spiegel reviewed the ultrasound and noted an 

impression of suspected right inguinal hernia. He referred appellant to a general surgeon for 

further assessment.

On March 12, 2018 appellant requested reconsideration of OWCP’s March 9, 2017 

decision. He submitted additional evidence along with his request.

In reports dated October 31, 2017 and February 6, 2018, Dr. David S. Mason, a Boardcertified colon and rectal surgeon, indicated in the “history of present illness” section that appellant 

suffered from an inguinal hernia on both sides. He noted an impression of bilateral inguinal hernia 
3

and related that appellant wished to proceed with laparoscopic bilateral inguinal hernia repair with 

mesh. 

By decision dated April 2, 2018, OWCP denied appellant’s request for reconsideration, 

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

appellant did not submit factual evidence along with his request for reconsideration.

In a report dated March 5, 2018, received by OWCP on April 10, 2018, Dr. Mason 

indicated that he performed a laparoscopic bilateral hernia repair with mesh, and related pre- and 

postoperative diagnoses of bilateral inguinal hernias. 

On April 10, 2018 appellant resubmitted three previously submitted medical reports dated 

January 17, July 28, and August 4, 2017. 

On April 10, 2018 appellant requested reconsideration of OWCP’s April 2, 2018 decision. 

He submitted additional evidence and argument along with his reconsideration request. Appellant 

indicated that he was “injured on the job” on January 11, 2017, that he submitted medical evidence 

in support of his claim, and did not receive any further correspondence. He further related that 

after being notified of OWCP’s initial denial dated March 9, 2017, he mailed in his reconsideration 

request by Express Mail, and was signed for by an OWCP employee on March 9, 2018. Appellant 

argued that he submitted his request for reconsideration within the one-year time frame. 

Appellant resubmitted March 5, 2018 hospital records signed by Dr. Mason, which 

diagnosed bilateral inguinal hernia and noted that a laparoscopic transabdominal preperitoneal 

inguinal hernia repair had been performed.

By decision dated August 16, 2018, OWCP denied appellant’s request for reconsideration,

finding that it was untimely filed and failed to establish clear evidence of error in the denial of his 

claim. 

LEGAL PRECEDENT

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

matter of right.4 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.5 One such limitation is that for merit decisions issued on or 

after August 29, 2011, the request for reconsideration must be received by OWCP within one year 

of the date of the decision for which review is sought.6 Timeliness is determined by the document 

receipt date of the request for reconsideration as indicated by the received date in the integrated 

Federal Employees’ Compensation System (iFECS).7 The Board has found that the imposition of 

 

4 This section provides in pertinent part: the Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).

5 20 C.F.R. § 10.607.

6

Id. at § 10.607(a). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 

2.1602.4 (February 2016).

7

Id. at Chapter 2.1602.4b.
4

the one-year limitation does not constitute an abuse of the discretionary authority granted OWCP 

under section 8128(a) of FECA.8

OWCP will consider an untimely request for reconsideration only if the request 

demonstrates “clear evidence of error” on the part of OWCP in its “most recent merit decision.”

9

 

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

was decided by OWCP.10 The evidence must be positive, precise, and explicit and it must be 

apparent on its face that OWCP committed an error.11 Evidence that does not raise a substantial 

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

evidence of error.12 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 shift the weight of the evidence in favor of the claimant and raise a substantial 

question as to the correctness of OWCP’s decision.13

The Board notes that clear evidence of error is intended to represent a difficult standard.14 

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

is insufficient to demonstrate clear evidence of error.15 It is not enough merely to establish that 

the evidence could be construed so as to produce a contrary conclusion.16 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.17 The Board makes an independent determination as to whether 

a claimant has demonstrated clear evidence of error on the part of OWCP.18 Where a request is 

untimely and fails to demonstrate clear evidence of error, OWCP will deny the request for 

reconsideration without reopening the case for a review on the merits.19

ANALYSIS

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

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

 

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

9 20 C.F.R. § 10.607(b).

10 Id.

11 Supra note 9; Fidel E. Perez, 48 ECAB 663, 665 (1997).

12 R.C., Docket No. 17-0198 (issued January 28, 2019); see Jesus D. Sanchez, 41 ECAB 964 (1990).

13 R.C., id.; Thankamma Mathews, supra note 8.

14 R.K., Docket No. 16-0355 (issued June 27, 2016).

15 R.L., Docket No. 18-0496 (issued January 9, 2019); Jimmy L. Day, 48 ECAB 652 (1997).

16 Id.

17 Id.

18 R.L., supra note 15; Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, supra note 8.

19 20 C.F.R. § 10.608(b).
5

Appellant had one year from the date of OWCP’s March 9, 2017 merit decision to timely 

request reconsideration. As OWCP did not receive appellant’s reconsideration request until 

April 10, 2018, more than one year after the March 9, 2017 merit decision, it was untimely filed. 

Consequently, appellant must demonstrate clear evidence of error by OWCP in the denial of his

claim.20

The Board has reviewed the record and finds that appellant has not demonstrated clear 

evidence of error.

In its most recent merit decision of March 9, 2017, OWCP found that the evidence 

submitted was insufficient to establish that the event occurred as appellant described. Therefore 

the underlying merit issue on reconsideration is factual in nature. With his reconsideration request, 

appellant resubmitted medical reports dated January 17, July 28, August 4, 2017, and 

March 5, 2018. The Board notes that the submission of evidence that does not address the 

particular issue involved does not constitute a basis for reopening a case.21 Appellant has not 

sufficiently explained how the submission of this evidence raises a substantial question concerning 

the correctness of OWCP’s decision.22

As previously noted, clear evidence of error is intended to represent a difficult standard.23 

It is not enough to show that evidence could be construed so as to produce a contrary conclusion.24 

Instead, the evidence must shift the weight in appellant’s favor.25

Appellant also submitted argument along with his reconsideration request. He argued that 

he was “injured on the job” on January 11, 2017, that he submitted medical evidence in support of 

his claim, and did not receive any further correspondence. The Board finds that this argument is 

duplicative. Therefore it does not raise a substantial question as to the correctness of OWCP’s 

decision or shift the weight of the evidence in his favor.26

Thus, the Board finds that appellant has failed 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.

 

20 Supra note 9; see Debra McDavid, 57 ECAB 149 (2005).

21 See D.L., Docket No. 18-1007 (issued November 28, 2018); Alan G. Williams, 52 ECAB 180 (2000);

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

22 Id.

23 W.R., Docket No. 18-1042 (issued February 12, 2019).

24 Id.

25 R.S., Docket No. 18-0505 (issued July 24, 2018).

26 See G.B., Docket No. 18-1629 (issued April 15, 2019); J.W., Docket No. 18-0703 (issued November 14, 2018).
6

ORDER

IT IS HEREBY ORDERED THAT the August 16, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 14, 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