United States Department of Labor

Employees’ Compensation Appeals Board

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R.O., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Seaford, NY, Employer

__________________________________________

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Docket No. 18-1687

Issued: March 26, 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 September 6, 2018 appellant filed a timely appeal from a June 12, 2018 nonmerit 

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

elapsed since the last merit decision, dated September 8, 2015, 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 to review 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 March 6, 2015 appellant, then a 56-year-old city letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on November 6, 2014 his back “gave out” when he was walking 

 

1 5 U.S.C. § 8101 et seq.
2

his delivery route while in the performance of duty. On the reverse side of the claim form the 

employing establishment indicated that appellant stopped work on November 6, 2014 and returned 

to work on December 2, 2014.

In a letter dated March 23, 2015, the employing establishment challenged appellant’s 

claim. It noted that he failed to advise management of an injury occurring on November 6, 2014

and notified management four months later without providing medical documentation supporting 

his claim. The employing establishment also indicated that appellant did not submit any medical 

documentation supporting an injury. It related that there were no witnesses to the incident and,

since the alleged incident, appellant had worked several hours of overtime and had worked extra 

days.

By development letter dated March 27, 2015, OWCP advised appellant that the evidence 

submitted was insufficient to establish his claim. It advised him of the type of factual and medical 

evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30 

days to submit the requested evidence.

OWCP subsequently received additional medical evidence. In a work excuse note dated 

November 6, 2014, Dr. Anthony T. Arcati, Board-certified in family practice, indicated that 

appellant should remain off of work until November 11, 2014.

In a report dated November 12, 2014, Dr. Cono Gallo, Board-certified in diagnostic 

radiology, performed a magnetic resonance imaging (MRI) scan. His impression was that 

appellant suffered from minimal right foraminal disc protrusions at L4-L5 and L5-S1 along with 

facet arthrosis resulting in mild-to-moderate foraminal stenosis.

In a work excuse note dated November 17, 2014, Laura Maroldo, a certified physician 

assistant, related that appellant should remain off of work until November 24, 2014.

In reports dated November 26, 2014 and February 25, 2015, Dr. Edward S. Rubin, an 

interventional pain management specialist, diagnosed lumbar spondylosis with myelopathy and 

lumbosacral radiculitis.

In a report dated December 5, 2014, Dr. Rubin indicated that he had performed a right L4-

L5 and L5-S1 facet joint injection. He diagnosed facet arthropathy.

In a work excuse note dated December 5, 2014, Dr. Rubin indicated that appellant should 

remain off of work from December 5 to 8, 2014, and could return to full-duty work on 

December 9, 2014.

In a letter dated March 31, 2015, Dr. Arcati noted that he examined appellant on 

November 6, 2014, and, at that time, he diagnosed lumbosacral strain and mild osteoarthritis.

In an April 2, 2015 response to the March 27, 2015 development letter, appellant related a 

factual recitation of the employment incident on November 6, 2014. He indicated that, while 

delivering his route, he felt a pain in his back, which worsened throughout the day. Appellant left 

work on November 6, 2014 and saw Dr. Arcati. He noted that he did not return to duty until 

December 9, 2014.
3

By decision dated April 30, 2015, OWCP accepted that the November 6, 2014 employment 

incident occurred, as alleged. However, it denied appellant’s claim because the medical evidence 

did not demonstrate that the claimed medical condition was causally related to the accepted 

employment incident. OWCP noted that appellant’s physician did not provide a medical rationale 

based on a complete and accurate history and supported by objective findings as to how his 

employment incident on November 6, 2014 caused, aggravated, or contributed to his medical 

conditions.

On May 18, 2015 appellant requested an oral hearing before an OWCP hearing 

representative and submitted additional medical evidence. The oral hearing was held on 

July 21, 2015. Appellant testified that he was delivering mail and climbed up on one step with his 

right foot, turned and placed the mail in the receptacle, stepped down onto his right foot, and felt 

a sharp pain in his back. He further testified that he was carrying a 20- to 25-pound mailbag on 

his left shoulder when the incident occurred.

In a report dated August 24, 2015, Dr. Andrew Tarleton, an orthopedic surgeon, examined 

appellant and diagnosed bulging disc, lumbar degenerative disc disease, and osteoarthritis of the 

lumbar spine.

By decision dated September 8, 2015, an OWCP hearing representative affirmed the 

April 30, 2015 decision. She found that appellant had not submitted medical evidence, which 

established causation between the medical diagnoses and the accepted November 6, 2014 

employment incident.

In reports dated February 8, April 11 and 25, and May 11, 2016, Dr. Tarleton reexamined 

appellant and diagnosed lumbago, lumbar radiculopathy, lumbar disc herniation, osteoarthritis of 

the lumbar spine, and lumbar degenerative disc disease. In the February 8, 2016 report, he 

indicated that appellant could return to work with limitations on February 9, 2016. In the May 11, 

2016 report, Dr. Tarleton restricted appellant from lifting more than 20 pounds.

On September 12, 2016 appellant, through counsel, requested reconsideration of OWCP’s 

hearing representative’s September 8, 2015 decision.

On June 12, 2018 OWCP denied appellant’s request for reconsideration, finding that it was 

untimely filed and failed to demonstrate clear evidence of error.

LEGAL PRECEDENT

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

matter of right.2 OWCP, through its regulations, has imposed limitations on the exercise of its 

discretionary authority under section 8128(a).3 One such limitation provides that a request for 

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

 

2 C.Y., Docket No. 18-0693 (issued December 7, 2018); see Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. 

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

3 See Annette Louise, 54 ECAB 783, 789-90 (2003).
4

is sought.4 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).5 The Board has found that the imposition of this one-year time 

limitation does not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. 

§ 8128(a).6

Section 10.607(b) provides that OWCP will consider an untimely request for 

reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit 

decision. The reconsideration request must demonstrate that OWCP’s decision was, on its face, 

erroneous.7

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

issue which was decided by OWCP.8 The evidence must be positive, precise, and explicit and 

must be manifest on its face that OWCP committed an error.9 Evidence that does not raise a 

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

clear evidence of error.10 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.11 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.12

To demonstrate clear evidence of error, 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 

makes an independent determination of whether a claimant has submitted clear evidence of error 

on the part of OWCP, such that OWCP abused its discretion in denying merit review in the face 

of such evidence.14

 

4 20 C.F.R. § 10.607(a).

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

6 F.R., Docket No. 09-575 (issued January 4, 2010); see Jesus D. Sanchez, supra note 2.

7 20 C.F.R. § 10.607(b).

8 C.Y., supra note 2; See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-

58 (1992).

9 M.L., Docket No. 09-956 (issued April 15, 2010); see Fidel E. Perez, 48 ECAB 663, 665 (1997).

10 C.Y., supra note 2; see Richard L. Rhodes, 50 ECAB 259, 264 (1999).

11 C.Y., id.; see Leona N. Travis, 43 ECAB 227, 241 (1991).

12 See Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992).

13 See Veletta C. Coleman, 48 ECAB 367, 370 (1997).

14 See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).
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ANALYSIS

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.

OWCP’s regulations and procedures establish a one-year time limitation for requesting 

reconsideration, which begins on the date of the original OWCP decision.15 For OWCP decisions 

issued on or after August 29, 2011, timeliness is determined by “received date” as recorded in 

iFECS.16 The most recent merit decision was the September 8, 2015 hearing decision, which 

affirmed the April 30, 2015 denial of appellant’s traumatic injury claim. Appellant had one year 

from the date of the September 8, 2015 decision to make a timely request for reconsideration. 

Because appellant’s request was not received by OWCP until Monday, September 12, 2016, more 

than one-year after the September 8, 2015 merit decision, it was untimely filed. Consequently, 

appellant must demonstrate clear evidence of error by OWCP in the denial of his claim.17

In support of his untimely request for reconsideration, appellant submitted reports dated 

February 8, April 11 and 25, and May 11, 2016 from Dr. Tarleton. However, these reports did not 

contain the type of positive, precise, and explicit evidence which manifests on its face that OWCP 

committed an error in its September 8, 2016 decision.18 The evidence and argument submitted did 

not shift the weight of the evidence and raise a substantial question concerning the correctness of 

OWCP’s prior decision. The Board has previously explained that even 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, does not demonstrate clear 

evidence of error.19

As such, the Board finds that appellant failed to demonstrate clear evidence of error.20

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.

 

15 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

16 Supra note 5

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

18 See supra note 9.

19 L.W., Docket No. 18-1475 (issued February 7, 2019). 

20 W.A., Docket No. 18-0297 (issued July 18, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the June 12, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 26, 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