United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

U.S. POSTAL SERVICE, NATIONAL CAPITOL 

POST OFFICE, Washington, DC, Employer

__________________________________________

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Docket No. 18-1499

Issued: February 5, 2020

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 August 1, 2018 appellant filed a timely appeal from a July 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 May 17, 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 April 3, 2017 appellant, then a 51-year-old sales service associate clerk, filed a 

traumatic injury claim (Form CA-1) alleging that on April 1, 2017 he sustained an injury to his left 

 

1 5 U.S.C. § 8101 et seq.
2

forearm when he was bitten by a transient person while in the performance of duty. He stopped 

work on April 3, 2017 and returned to full-duty work on April 8, 2017.

In a development letter dated April 6, 2017, OWCP informed appellant of the type of 

factual and medical evidence needed to establish his claim. It afforded him 30 days to submit the 

requested evidence.

In response to OWCP’s request, it received a report dated April 1, 2017, which noted that 

emergency room triage was performed by Victoria Crowers, a registered nurse. Ms. Crowers

reported that appellant had been bitten by a homeless person that evening. Details regarding how 

the injury occurred were detailed on an emergency department form. In April 1, 2017 notes, Charis 

Hasdorff, certified physician assistant, reported that appellant had been evaluated for a left forearm 

human bite.

By decision dated May 17, 2017, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that the April 1, 2017 employment incident 

occurred as alleged.

On June 22, 2018 appellant requested reconsideration and submitted additional evidence.

In support of his request for reconsideration, appellant submitted an ambulance report,

dated April 1, 2017, which documented that he had sustained a human bite on the left forearm at 

the time alleged. Also submitted was a copy of the April 1, 2017 emergency room report indicating 

a human bite which was already of record. Appellant also submitted two statements dated April 2, 

2017 by D.G., a coworker, who described the incident on April 1, 2017 involving appellant. D.G.

related that she heard screams while G.C. was securing the doors in the vestibule. A female, who 

refused to leave, verbally and physically attacked both, appellant and G.C., and bit appellant’s arm. 

Police were contacted. The police arrested the woman who bit appellant. Both appellant and G.C. 

were taken by ambulance to the hospital.

G.C., in an April 2, 2017 witness statement, related that, while closing the employing 

establishment, a young female was found lying down in the vestibule. When G.C. asked the female 

to leave, she proceeded to lunge at G.C. and push her towards the lobby. At this point, appellant 

heard G.C. scream and grabbed the female’s arm to remove her from G.C. They both fell to the 

ground and, after separating, the female ran out the door. It was at this point that a bite mark was 

observed on appellant.

Appellant also submitted his own April 3, 2017 narrative statement, which reiterated the 

details provided by G.C. 

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

finding that it was untimely filed and failed to demonstrate clear evidence of error.
3

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 Timeliness is determined by the document receipt date (i.e., 

the “received date” in OWCP’s integrated Federal Employees’ Compensation System).4 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.5

When an application for review is untimely, OWCP undertakes a limited review to 

determine whether the application presents clear evidence that OWCP’s final merit decision was 

in error.6 Its procedures state that OWCP will reopen a claimant’s case for merit review, 

notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s 

request for reconsideration shows “clear evidence of error” on the part of OWCP.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 

manifest on its face that OWCP committed an error.9 Evidence which 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 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 decision.12 

 

2 See 5 U.S.C. § 8128(a); M.E., Docket No. 18-1497 (issued March 1, 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 2.1602.4(b) (February 2016).

5 F.N., Docket No. 18-1543 (issued March 6, 2019); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6 L.C., Docket No. 18-1407 (issued February 14, 2019); Leon J. Modrowski, 55 ECAB 196 (2004); Thankamma 

Mathews, 44 ECAB 765 (1993); Jesus D. Sanchez, 41 ECAB 964 (1990).

7 W.R., Docket No. 18-1042 (issued February 12, 2019); see Gladys Mercado, 52 ECAB 255 (2001). Section 

10.607(b) provides: “OWCP will consider an untimely application for reconsideration only if the application 

demonstrates clear evidence of error on the part of [it] in its most recent merit decision. The application must establish, 

on its face, that such decision was erroneous.” 20 C.F.R. § 10.607(b).

8 F.N., supra note 5; see Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992).

9 M.E., supra note 2; see Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991).

10 See Leon J. Modrowski, supra note 6; Jesus D. Sanchez supra note 6. 

11 See Leona N. Travis, supra note 9.

12 W.K., Docket No. 18-1260 (issued February 5, 2019); Leon D. Faidley, Jr., supra note 5. 
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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.13

ANALYSIS

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

reconsideration was untimely filed. The last merit decision of record was OWCP’s May 17, 2017 

decision. As appellant’s request for reconsideration was received by OWCP on June 22, 2018,

more than one year after the May 17, 2017 merit decision, it was untimely filed. Consequently, 

appellant must demonstrate clear evidence of error by OWCP in denying his claim.14

The Board further finds, however, that the evidence submitted in support of appellant’s

untimely request for reconsideration is sufficient to demonstrate clear evidence of error.

To determine whether appellant has demonstrated 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.15 In support of 

his request, appellant submitted an ambulance report dated April 1, 2017, which documented that 

he had sustained a human bite on the left forearm at the time alleged as well as a copy of the 

April 1, 2017 emergency room report indicating a human bite which was already of record. He 

also submitted two statements dated April 2, 2017 by D.G., a coworker, who described the incident 

on April 1, 2017 involving appellant and supported that the incident occurred as alleged. 

The Board has held that the evidence submitted with an untimely reconsideration request 

must relate to the issue presented and the evidence that was before OWCP at the time of the prior 

decision.16 As discussed above, OWCP denied appellant’s claim based on the factual component 

of fact of injury. With his untimely request for reconsideration, appellant resubmitted the 

emergency room reports, which were before OWCP at the time of its initial denial that supported 

the incident occurred at the time, place, and in the manner alleged. He also submitted an 

ambulance report which further supports a human bite occurring at the time, place, and in the 

manner alleged. The witness statements and his statement, submitted on reconsideration, provide 

further details relative to the occurrence of the alleged April 1, 2017 employment injury. The 

Board finds, therefore, that appellant has raised a substantial question as to the correctness of the 

 

13 See George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 

41 ECAB 458 (1990).

14 20 C.F.R. § 10.60(b). Debra McDavid, 57 ECAB 149 (2005).

15 See V.L., Docket No. 17-1493 (issued September 12, 2018); George C. Vernon, 54 ECAB 313 (2003).

16 See V.L., id.; K.N., Docket No. 13-0911 (issued August 21, 2013); J.S., Docket 10-0385 (issued 

September 15, 2010).
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May 17, 2017 merit decision. Thus, OWCP abused its discretion in failing to reopen his claim for 

further merit review.17 

The Board will reverse OWCP’s July 16, 2018 decision and remand the case for an 

appropriate decision on the merits of appellant’s claim.

CONCLUSION

The Board finds that appellant has demonstrated clear evidence of error in its July 16, 2018 

merit decision and, thus, OWCP improperly denied his request for reconsideration of the merits of 

his claim.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation 

Programs dated July 16, 2018 is reversed and this case is remanded for further proceedings 

consistent with this decision. 

Issued: February 5, 2020

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

 

17 See, e.g., A.B., Docket No. 10-1070 (issued March 8, 2011), wherein claimant submitted new evidence with an 

untimely reconsideration request, including an Equal Employment Opportunity decision relating to her allegations of 

error by the employing establishment. The Board found that appellant had established clear evidence of error.