United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.T., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Las Vegas, NV, 

Employer

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Docket No. 19-0604

Issued: September 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 January 22, 2018 appellant filed a timely appeal from an August 29, 2018 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit 

decision was a decision of the Board dated May 5, 2017, which became final after 30 days of 

issuance, and is not subject to further review.1 As there was no merit decision issued by OWCP 

within 180 days from 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 over the merits of 

this case.

3

 

1 20 C.F.R. § 501.6(d); see M.S., Docket No. 18-0222 (issued June 21, 2018); J.P., Docket No. 17-0053 (issued 

May 23, 2017); R.M., Docket No. 14-1213 (issued October 15, 2014).

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 

because 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 and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows.

On February 12, 2013 appellant, then a 27-year-old postal support employee clerk, filed a 

traumatic injury claim (Form CA-1) alleging an injury to his left shoulder on September 6, 2012

after lifting and pitching parcels into designated locations while in the performance of duty.

By decision dated March 29, 2013, OWCP denied the claim, finding that, while the 

September 6, 2012 employment incident had occurred as alleged, the medical evidence of record 

was insufficient to establish left shoulder, cervical, and/or thoracic conditions causally related to 

the accepted work incident.

On May 9, 2013 appellant requested reconsideration and submitted additional medical 

evidence. 

By decision dated August 2, 2013, OWCP denied modification of its prior decision, finding

that the medical evidence of record was insufficient to establish causal relationship between his

diagnosed condition and work incident.

On May 20, 2014 appellant requested reconsideration and submitted additional evidence 

in support of his claim. 

By decision dated August 29, 2014, OWCP denied modification of its prior decision. 

Appellant, through counsel, then appealed to the Board.

By decision dated April 16, 2015, the Board affirmed OWCP’s August 29, 2014 decision 

finding that the medical evidence of record was insufficient to establish that appellant’s medical 

conditions were caused or aggravated by the accepted September 6, 2012 employment incident. 

On April 12, 2016 appellant requested reconsideration and submitted additional medical 

evidence. 

By decision dated June 15, 2016, OWCP denied modification of its prior decision. It found 

that the evidence submitted did not explain how the work factors claimed would have resulted in 

the diagnosed conditions. Appellant, through counsel, then appealed to the Board.

In a decision dated May 5, 2017, the Board affirmed OWCP’s June 15, 2016 decision again 

finding that the medical evidence was insufficient to establish causal relationship. 

 

4 Docket No. 15-0256 (issued April 16, 2015); Docket No. 16-1518 (issued May 5, 2017).
3

On August 22, 2017 appellant requested reconsideration. 

By decision dated November 20, 2017, OWCP denied appellant’s request for 

reconsideration finding that the evidence submitted was insufficient to warrant a merit review. 

OWCP subsequently received a March 29, 2018 report from Dr. John Champlin, a Boardcertified family practitioner, who opined that appellant’s diagnosed conditions of a compression 

fracture of the cervical spine, left shoulder anterior labral tear, left shoulder joint derangement, 

acquired deformity of the spine, and left shoulder muscle spasms were causally related to lifting 

and pitching mail at work on September 6, 2012. 

On June 6, 2018 appellant requested reconsideration of the Board’s May 5, 2017 decision. 

By decision dated August 29, 2018, OWCP summarily denied his request for reconsideration 

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

5

LEGAL PRECEDENT

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

merit review.6 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.7 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).8 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.9

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

a claimant’s application for review is untimely filed, it must nevertheless undertake a limited 

review to determine whether it demonstrates clear evidence of error.10 If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.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. Evidence that does not raise a substantial 

 

5 The Board notes that OWCP is not authorized to review Board decisions. Board decisions are not subject to 

review except by the Board and they become final after 30 days. Although the May 5, 2017 Board decision was the 

last merit decision of record, OWCP’s June 15, 2016 denial of modification is the appropriate subject of possible 

modification by OWCP. See 20 C.F.R. § 501.6(d).

6 5 U.S.C. § 8128(a); Y.S., Docket No. 08-0440 (issued March 16, 2009).

7 20 C.F.R. § 10.607(a).

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

9 E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

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

11 M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 8 at Chapter 

2.1602.5 (February 2016).
4

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.12

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.13 

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

evidence of error on the part of OWCP.14

Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact 

and make an award for or against payment of compensation.15 Section 10.126 of Title 20 of the 

Code of Federal Regulations provides that a decision shall contain findings of fact and a statement 

of reasons. The Board has held that the reasoning behind OWCP’s evaluation should be clear 

enough for the reader to understand the precise defect of the claim and the kind of evidence which 

would overcome it.16

ANALYSIS

The Board finds that OWCP properly determined that appellant’s June 6, 2018 request for 

reconsideration was untimely filed. The last merit decision was issued by the Board on May 5, 

2017 and OWCP received appellant’s request for reconsideration on June 6, 2018. As appellant’s 

request for reconsideration was not received by OWCP within the one-year time limitation, 

pursuant to 20 C.F.R. § 10.607(a), his request for reconsideration was untimely. Consequently, he 

must demonstrate clear evidence of error by OWCP in denying his claim.

17

 

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

13 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 8 at Chapter 2.1602.5(a) (February 2016).

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

15 5 U.S.C. § 8124(a).

16 L.M., Docket No. 13-2017 (issued February 21, 2014); D.E., Docket No. 13-1327 (issued January 8, 

2014); L.C., Docket No. 12-0978 (issued October 26, 2012); Federal (FECA) Procedure Manual Part 2 --

Claims, Disallowances Chapter 2.1400.5 (February 2013) (all decisions should contain findings of fact sufficient to 

identify the benefit being denied and the reason for the disallowance).

17 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).
5

The August 29, 2018 OWCP decision found that appellant’s reconsideration request did 

not present clear evidence of error. The Board finds, however, that OWCP did not make any 

findings regarding the evidence submitted in support of the reconsideration request.18

Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact 

and make an award for or against payment of compensation.19 Its regulations at section 10.126 of 

Title 20 of the Code of Federal Regulations provide that the decision of the Director of OWCP 

shall contain findings of fact and a statement of reasons.20 As well, OWCP’s procedures provide 

that the reasoning behind OWCP’s evaluation should be clear enough for the reader to understand 

the precise defect of the claim and the kind of evidence which would overcome it.21

To determine whether appellant has established clear evidence of error, OWCP will review 

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

evidence or argument is sufficient to show error in its prior decision.22 It shall then issue a decision 

containing findings of fact and a statement of reasons. In the instant case, OWCP provided no 

discussion relative to the new medical evidence submitted by appellant from Dr. Champlin. Its 

failure to provide factual findings and explain the basis for its conclusion that appellant did not 

demonstrate clear evidence of error precludes the Board’s review of the decision.23

The Board finds that OWCP failed to properly explain the findings with respect to the issue 

presented. Thus, OWCP, in its August 29, 2018 decision, did not discharge its responsibility to 

set forth findings of fact and a clear statement of reasons explaining the disposition so that 

appellant could understand the basis for the decision, i.e., whether he demonstrated clear evidence 

that OWCP’s last merit decision was incorrect.

The Board will set aside OWCP’s August 29, 2018 decision and remand the case for an 

appropriate decision on appellant’s untimely reconsideration request.

CONCLUSION

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

 

18 See R.C., Docket No. 16-0563 (issued May 4, 2016).

19 5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005).

20 20 C.F.R. § 10.126. M.L., Docket No. 09-0956 (issued April 15, 2010); see also O.R., 59 ECAB 432 (2008).

21 See R.C., supra note 18; Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 

(February 2013).

22 See George C. Vernon, 54 ECAB 313 (2003).

23 See R.C., supra note 18.
6

ORDER

IT IS HEREBY ORDERED THAT the August 29, 2018 decision of the Office of 

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

this decision of the Board.

Issued: September 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