United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Birmingham, AL, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-1689

Issued: February 21, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 6, 2019 appellant filed a timely appeal from a May 6, 2019 nonmerit decision 

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

OWCP’s last merit decision, dated November 2, 2017, 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.

FACTUAL HISTORY

On September 12, 2017 appellant, then a 49-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on September 9, 2017 she sustained an injury to her right lower 

 

1 5 U.S.C. § 8101 et seq.
2

back while in the performance of duty. She explained that, after placing a package on a customer’s 

porch, she felt a sharp pain on the right side of her lower back. On the reverse side of the claim 

form appellant’s supervisor noted that it was “unknown” whether she was injured while in the 

performance of duty. Appellant stopped work on September 9, 2017 at 7:00 a.m. and returned on 

September 10, 2017.

In a September 11, 2017 medical note, Deldra Bolton, a nurse practitioner, provided that 

appellant was seen that day and could return to work on September 14, 2017.

In a September 12, 2017 statement, appellant indicated that on September 9, 2017 she was 

delivering a package that she placed on a customer’s front porch, when she felt a sharp pain on the 

lower right side of her back. She slowly made her way back to her long-life vehicle (LLV) and 

took a couple of minutes to adjust before completing the remaining three hours of her deliveries. 

When she returned to the station, appellant clocked out as there were only two minutes remaining 

in her shift and she was told she had to be off by 7:00 p.m. She used over-the-counter medication

to alleviate her pain, but indicated that it did not help her condition. Appellant noted that she 

sought treatment on September 11, 2017 where x-rays were performed and she was informed that 

she had a slipped disc on a top nerve that was causing her pain.

In an authorization for examination and/or treatment (Form CA-16) of even date, 

appellant’s customer services manager, A.R., checked a box to indicate there was doubt as to 

whether her condition was caused by an injury in the performance of duty.

In a September 22, 2017 diagnostic report, Dr. Clint Waggoner, Board-certified in 

diagnostic radiology, performed a magnetic resonance imaging (MRI) scan of appellant’s lumbar 

spine. The MRI scan revealed multilevel discogenic degenerative changes, most significant at L5-

S1 with right paracentral disc herniation that effaces the existing S1 nerve root on the right. In a 

medical note of even date, Dr. Perry Savage, a Board-certified orthopedic surgeon, diagnosed 

appellant with other intervertebral disc displacement in the lumbar region and identified 

September 9, 2017 as the date of injury. He provided that she was unable to return to work.

In a development letter dated October 2, 2017, OWCP informed appellant that the evidence 

of record was insufficient to establish her traumatic injury claim. It noted that the evidence of 

record was insufficient to establish that she actually experienced the incident alleged to have 

caused her injury and no diagnosis of any condition related to her injury was provided. OWCP 

provided a questionnaire seeking further information related to the September 9, 2017 employment 

incident. It afforded appellant 30 days to submit the necessary evidence.

OWCP received additional evidence. In a September 16, 2017 medical note, Dr. Savage,

indicated that appellant could return to work with restrictions consistent with light work and sitting 

50 percent of her shift. He also noted that she was unable to deliver mail.

In medical reports dated September 18 and 22, 2017, Dr. Savage noted that appellant 

presented with pain in the lower back due to a September 9, 2017 injury at work where she placed 

a package on a porch and felt a sharp pain in her right lower back as she bent over and raised up. 

He observed tenderness around her midline and paraspinal area and limited lumbar flexion, 

extension, and rotation on examination. Dr. Savage also noted that a review of appellant’s 
3

diagnostic studies revealed a right-sided disc herniation and provided an impression of an 

intervertebral disc displacement in her lumbar region.

By decision dated November 2, 2017, OWCP denied appellant’s traumatic injury claim, 

finding that the evidence submitted was insufficient to establish the factual component of fact of 

injury because she failed to provide the time the employment incident occurred as she did not 

respond to the questionnaire. It explained that, although she reported the date and place of the 

alleged injury, “[t]he time the incident happened was needed to determine whether or not [she] 

was in the performance of duty on the date and time the incident actually occurred.” OWCP

concluded, therefore, that the requirements had not been met to establish an injury as defined under 

FECA.

OWCP continued to receive evidence. In a September 12, 2017 statement, the supervisor,

A.R., explained that appellant reported that she had an incident on September 9, 2017. She asked 

appellant if she delivered the package by squatting at the knees or if she bent over at the waist and 

that appellant replied that she bent at the waist. A.R. also indicated that an onsite investigation 

was not performed because the incident was not reported at the time it occurred.

In a September 14, 2017 investigation interview form, appellant indicated that she was 

injured lifting the back door of her LLV to take a package to a back porch. She also explained that 

she did not report the incident on September 9, 2017 because her supervisor was rushing everyone 

out of the office when she returned.

A September 18, 2017 x-ray of appellant’s lumbosacral spine showed narrowing with 

degenerative changes of the facet joints at multiple levels with an impression of other intervertebral 

disc displacement in her lumbar region.

In an October 5, 2017 e-mail, A.R. again recounted the history of appellant reporting her 

alleged September 9, 2017 injury. She indicated that, per appellant’s response to a question, she 

did not use the proper bending/squatting techniques when delivering the package. A.R. also 

provided information indicating that the weight of the package in question weighed two pounds 

and three ounces and was delivered at 3:08 p.m. central time (CT).

In a November 6, 2017 medical report, Dr. Savage again noted appellant’s lower back pain 

and explained appellant’s options for further treatment.

In a February 14, 2018 letter, A.M., a postal service health and resource management 

specialist, controverted appellant’s claim, noting that appellant provided two different causes of 

injury. She explained that appellant’s Form CA-1 and medical records provided that she injured 

herself placing a package on a customer’s front porch. However, in appellant’s investigation 

interview she provided that she injured herself when she took the box out of the back of her LLV 

by lifting its back door.

In a February 15, 2018 medical report, Dr. Savage provided procedure notes detailing his 

administration of an interlaminar epidural steroid injection at L5-S1 in order to treat appellant’s 

lumbar spondylosis and degenerative disc disease.
4

In a March 17, 2019 letter, received by OWCP on March 18, 2019, appellant requested 

reconsideration of OWCP’s November 2, 2017 decision. She explained that, since her injury, she 

has not been able to lift over 15 pounds and has experienced pain and numbness in her lower back 

and legs. Attached to her reconsideration request, appellant provided medical reports dated from 

February 9, 2018 to January 25, 2019 from Dr. Savage detailing his treatment of her for lower 

back conditions.

In an April 11, 2019 statement, appellant noted that she was not made aware of the reason 

her claim was denied until March 27, 2019. She explained that the box she delivered on 

September 9, 2017 was very large and heavy and that she could not remember if the delivery was 

scanned properly after nearly two years. Appellant provided that she did not remember making a 

statement in her investigation interview that she delivered the package to a back porch or that the 

package was two pounds. She also provided that the reason she did not report her injury the same 

day was because no one was at the supervisor’s desk when she returned to the station.

By decision dated May 6, 2019, OWCP denied appellant’s request for reconsideration,

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

LEGAL PRECEDENT

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

merit review.2 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.3 The one-year period for requesting reconsideration begins 

on the date of the original OWCP decision, but the right to reconsideration within one year also 

accompanies any subsequent merit decision on the issues, including any merit decision by the 

Board.4 Timeliness is determined by the document receipt date (i.e., the “received date” in 

OWCP’s integrated Federal Employees’ Compensation System [iFECS]).5 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.6

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 

limited review to determine whether the application demonstrates clear evidence of error.7 OWCP 

regulations and procedures provide that OWCP will reopen a claimant’s case for merit review, 

 

2 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).

3 20 C.F.R. § 10.607(a).

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

5

Id. at Chapter 2.1602.4(b) (February 2016).

6 See R.L., Docket No. 18-0496 (issued January 9, 2019).

7 See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019).
5

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.8

To demonstrate clear evidence of error, 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.9 The Board 

notes that clear evidence of error is intended to represent a difficult standard.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 It is not enough merely to establish that the evidence could 

be construed so as to produce a contrary conclusion.12 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.13 In this regard, the Board will limit its focus to a review of how the newly 

submitted evidence bears on the prior evidence of record.14 The Board makes an independent 

determination as to whether a claimant has demonstrated clear evidence of error on the part of 

OWCP.15

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.

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

decision for which review is sought.16 As appellant’s March 17, 2019 request for reconsideration 

was not received until March 18, 2019, more than one year after the issuance of OWCP’s last merit 

decision dated November 2, 2017, it was untimely filed. Consequently, she must demonstrate 

clear evidence of error by OWCP in its November 2, 2017 decision.17

The Board further finds that appellant’s reconsideration request failed to demonstrate clear 

evidence of error on the part of OWCP in its last merit decision. On appeal appellant explained 

 

8

Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.1602.5(a) (February 2016).

9 G.G., supra note 7.

10 M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., supra note 6.

11 E.B., Docket No. 18-1091 (issued December 28, 2018).

12 J.W., Docket No. 18-0703 (issued November 14, 2018).

13 P.L., Docket No. 18-0813 (issued November 20, 2018).

14 D.G., 59 ECAB 455 (2008); A.F., 59 ECAB 714 (2008).

15 W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

16 20 C.F.R. § 10.607(a).

17 Id. at § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).
6

that she was not made aware of the reason her claim was denied until March 27, 2019. However, 

the record reflects that the November 2, 2017 notice of decision was mailed to the correct address 

of record and was not returned as undeliverable.18 The Board has held that, in the absence of 

evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business 

is presumed to have been received. This is known as the mailbox rule.19 Accordingly, without 

evidence to the contrary, the November 2, 2017 notice of decision is presumed to have arrived at 

appellant’s mailing address.

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.20 The remaining evidence and argument appellant submitted failed to raise a 

substantial question concerning the correctness of OWCP’s decision.21 The Board notes that 

OWCP denied her traumatic injury claim on a factual basis, finding that she failed to establish the 

time at which the September 9, 2017 employment incident occurred. Appellant submitted 

statements in which she discussed the incident and discounted the September 14, 2017 

investigation interview.

The Board notes, however, that appellant did not explain how this argument raised a 

substantial question as to the correctness of OWCP’s November 2, 2017 decision. Appellant 

submitted a number of documents, in support of her reconsideration request, including e-mails and 

letters sent by appellant’s manager who discussed issues with her statements and provided 

information concerning the weight of the delivered package and time of delivery. The Board finds 

that, A.R.’s evidence is insufficient to establish clear evidence of error as it does not show that 

OWCP’s denial of the claim on the factual basis was erroneous or raise a substantial question as 

to the correctness of OWCP’s determination that appellant did not establish fact of injury.22 The 

Board has held that the term clear evidence of error is intended to represent a difficult standard.23 

As such, the Board finds that this evidence is insufficient to show clear evidence of error in 

OWCP’s November 2, 2017 decision.

Appellant also submitted medical evidence dated from September 16, 2017 to January 25, 

2019 from Dr. Savage detailing his treatment of appellant for lower back pain. The Board notes, 

however, that the submission of this medical evidence does not establish clear evidence of error in 

OWCP’s November 2, 2017 decision. The underlying issue of this case is not medical in nature. 

 

18 K.F., Docket No. 18-0839 (issued November 19, 2018).

19 See A.J., Docket No. 18-0830 (issued January 10, 2019); see also R.M., Docket No. 14-1512 (issued October 15, 

2014); V.M., Docket No. 06-0403 (issued December 15, 2006).

20 Supra note 9.

21 See P.T., Docket No. 18-0494 (issued July 9, 2018).

22 See P.O., Docket No. 13-0092 (issued April 4, 2013).

23 Supra note 10.
7

Rather, it is factual in nature because appellant’s traumatic injury claim was denied due to her 

failure to establish fact of injury. 

The Board finds that appellant’s request for reconsideration does not show on its face that 

OWCP committed error when it found in its November 2, 2017 decision that appellant failed to 

establish fact of injury. For these reasons, OWCP properly determined that appellant did not 

demonstrate clear evidence of error in that decision.

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the May 6, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 21, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board