United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.Y., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Roseville, CA, Employer

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Docket No. 19-0565

Issued: August 13, 2019

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 February 27, 2019 appellant filed a timely appeal from an October 11, 2018 nonmerit 

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

elapsed from the last merit decision dated January 16, 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 over the merits of this case.

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.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts of the case, as set forth in the 

prior decision, are incorporated herein by reference. The relevant facts are as follows.

On July 9, 2014 appellant, then a 46-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that he sustained a lower back injury on June 28, 2014 when bending and 

lifting while in the performance of duty. OWCP accepted the claim for lumbar sprain. 

Appellant subsequently filed claims for wage-loss compensation (Form CA-7) for the 

period August 9, 2014 and continuing. 

On September 2, 2014 the employing establishment offered appellant a position as a 

modified APC Host/Express Mail Deliverer effective that day. The physical requirements 

included lifting and carrying up to 10 pounds, pushing and pulling for one hour per day, and no 

bending/stooping. Appellant refused the job offer because he felt that he must be provided tasks 

that were exclusive to a rural carrier craft position and he refused the offered modified-duty job. 

The position remained available to him. 

By decision dated January 16, 2015, OWCP denied appellant’s claim for disability 

compensation for the period August 9, 2014 and continuing, finding that the medical evidence did 

not establish that he was disabled due to the accepted employment-related conditions.

Appellant submitted intermittent progress notes by Dr. Michael W. Cohen, a Boardcertified occupational medicine specialist, dated January 6 through July 27, 2015. In these 

progress notes Dr. Cohen diagnosed lumbar strain with worsening symptoms, lumbar disc 

degeneration, and lumbar radiculopathy, resolved.

Appellant also submitted reports from Dr. D. Michael Hembd, a Board-certified 

physiatrist, covering intermittent medical treatment from October 22, 2015 through 

January 11, 2016. Dr. Hembd diagnosed sprain of the ligaments of the lumbar spine and back 

pain. He noted that appellant “will continue with light[-]duty restrictions” and added that he would 

release appellant to full-duty work once he completed physical therapy. Following appellant’s 

physical therapy sessions, on January 11, 2016, Dr. Hembd’s physician assistant, Sarah L. 

Zichella, determined that appellant had reached maximum medical improvement and released him 

to full-duty work. 

On May 5, 2016 appellant requested reconsideration.

By decision dated November 7, 2016, OWCP denied appellant’s request for 

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

found that the evidence and arguments submitted on reconsideration did not raise a substantial 

question as to the correctness of OWCP’s January 16, 2015 decision. 

 

2 Docket No. 17-0476 (issued June 22, 2018).
3

Appellant appealed to the Board. By decision dated June 22, 2018, the Board set aside 

OWCP’s November 7, 2016 nonmerit decision and remanded the case as it did not provide 

findings of fact and a statement of reasons regarding the reasons that the reports of Drs. Cohen and 

Hembd were insufficient to demonstrate clear evidence of error that OWCP’s last merit decision 

was incorrect. On remand, the Board directed OWCP to issue an appropriate decision containing 

findings of fact and a clear statement of reasons addressing appellant’s untimely request for 

reconsideration.3 

Upon return of the case record to OWCP, appellant submitted reports dated November 29 

and December 7, 2016 from Dr. Randall Armstrong, a Board-certified family practitioner, who 

diagnosed other intervertebral disc degeneration, lumbar region. Dr. Armstrong also opined that 

appellant’s belief that he was not capable of lifting more than 15 pounds appeared to be selfgenerated as there were no findings on physical examination, x-ray, or magnetic resonance 

imaging (MRI) scans, to support that restriction. He advised that appellant was capable of 

returning to regular duty. 

By decision dated October 11, 2018, OWCP denied appellant’s request for reconsideration 

because 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.4 OWCP, through its regulations, has imposed limitations on the exercise of its 

discretionary authority under section 8128(a).5 One such limitation provides that an application 

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

review is sought.6 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).7

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

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

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

erroneous.8

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

issue, which was decided by OWCP.9 The evidence must be positive, precise, and explicit and 

 

3

Id.

4 See Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

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

6 20 C.F.R. § 10.607(a).

7 See Jesus D. Sanchez, supra note 4; F.R., Docket No. 09-0575 (issued January 4, 2010).

8 20 C.F.R. § 10.607(b).

9 See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992).
4

must be manifest on its face that OWCP committed an error.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 show that the evidence could be construed so 

as to produce a contrary conclusion.12 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.13

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 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.14 

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.15

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 limit for requesting 

reconsideration, which begins on the date of the original OWCP decision.16 The Board has held 

that, for OWCP decisions issued on or after August 29, 2011, the date of the application for 

reconsideration is the “received date” as recorded in the integrated Employees’ Compensation 

System (iFECS).

17

 The most recent merit decision was OWCP’s January 16, 2015 decision 

denying appellant’s claims for disability compensation. Appellant had one year from the date of 

this decision to make a timely request for reconsideration. Since his request was not received by 

OWCP until May 5, 2016, it was filed outside the one-year time period.

18

 As appellant’s May 5, 

 

10 See Fidel E. Perez, 48 ECAB 663, 665 (1997); M.L., Docket No. 09-0956 (issued April 15, 2010).

11 See Richard L. Rhodes, 50 ECAB 259, 264 (1999).

12 See Leona N. Travis, 43 ECAB 227, 241 (1991).

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

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

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

16 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

17 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016); see

supra note 14.

18 OWCP’s procedures were changed effective August 29, 2011. Section 10.607 of the new regulations provides 

that the date of the reconsideration request for timeliness purposes was changed from the date the request was mailed 

to the date the request was received by OWCP. See 20 C.F.R. § 10.607 (2011); see also C.B., Docket No. 13-1732 

(issued January 28, 2014) (where the Board held that for OWCP decisions issued on or after August 29, 2011, the date 

of the application for reconsideration is the “received date” as recorded in iFECS).
5

2016 request for reconsideration was received more than one year after the January 16, 2015 merit 

decision, it was untimely filed. Consequently, he must demonstrate clear evidence of error by 

OWCP in the denial of his claim.19

In its January 16, 2015 merit decision, OWCP denied appellant’s disability compensation 

claims because the medical evidence failed to establish that he was totally disabled for work and/or 

unable to perform the duties of the modified APC Host/Express Mail Deliverer position due to his

accepted employment-related condition. 

In support of his untimely request for reconsideration, appellant submitted progress notes 

from Dr. Cohen covering his intermittent treatment of appellant for lumbar strain with worsening 

symptoms, lumbar disc degeneration, and lumbar radiculopathy, resolved, during the period 

January 6 through July 27, 2015. Appellant also submitted reports from Dr. Hembd who treated 

appellant intermittently from October 22, 2015 through January 11, 2016 for sprain of the 

ligaments of the lumbar spine and back pain, noting work restrictions. Neither physician addressed

whether his treatment and/or the work restrictions were causally related to the June 28, 2014 

employment injury. The Board finds that the reports of Drs. Cohen and Hembd do not demonstrate 

clear evidence of error on the part of OWCP in denying appellant’s disability claims on 

January 16, 2015. Additionally, Drs. Cohen and Hembd do not raise a substantial question as to 

the correctness of OWCP’s January 16, 2015 merit decision. As such, they are insufficient to 

warrant further merit review.

Upon return of the case record to OWCP, appellant submitted reports dated November 29 

and December 7, 2016 from Dr. Armstrong who diagnosed other intervertebral disc degeneration, 

lumbar region and opined that appellant’s belief that he was not capable of lifting more than 15 

pounds appeared to be self-generated as there were no findings on physical examination, x-ray, or 

MRI scans, to support that restriction and released him to regular duty. The Board finds that this 

evidence also does not demonstrate clear evidence of error because it does not show that OWCP 

committed an error in denying appellant’s disability compensation claims, nor raise a substantial 

question as to the correctness of OWCP’s decision.

The report of Ms. Zichella does not demonstrate clear error in the January 16, 2015 merit 

decision because the reports of nonphysicians, including physician assistants do not constitute 

probative medical evidence under FECA.20

To demonstrate clear evidence of error, it is insufficient merely to show that the evidence 

could be construed so as to produce a contrary conclusion. The term clear evidence of error is 

intended to represent a difficult standard.21 The evidence submitted does not manifests on its face 

that OWCP committed an error in denying appellant’s claims for disability compensation. 

Appellant has not otherwise submitted evidence of sufficient probative value to raise a substantial 

 

19 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

20 D.F., Docket No. 17-0745 (issued March 14, 2018); R.S., Docket No. 16-1303 (issued December 2, 2016); L.L., 

Docket No. 13-0829 (issued August 20, 2013).

21 Supra note 17 at Chapter 2.1602.5.a (February 2016); see Dean D. Beets, supra note 9.
6

question as to the correctness of OWCP’s last merit decision. Thus, the Board finds that the 

evidence is insufficient to demonstrate clear evidence of error.

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration 

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

ORDER

IT IS HEREBY ORDERED THAT the October 11, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 13, 2019

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