United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., Appellant

and

U.S. POSTAL SERVICE, LINCOLN POST 

OFFICE, Lincoln, CA, Employer

__________________________________________

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Docket No. 19-1836

Issued: April 6, 2020

Appearances: Case Submitted on the Record

Norman F. Nivens, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 3, 2019 appellant, through counsel, filed a timely appeal from an April 12, 

2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed from the last merit decision dated October 13, 2017 to 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

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

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 of the 

merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

FACTUAL HISTORY

On May 8, 2017 appellant, then a 58-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on that day she injured her left knee when she tripped and fell after her 

right foot was caught in a handle strip while in the performance of duty. She stopped work on the 

date of injury. On May 22, 2017 appellant accepted a modified job offer. 

After initial development of the claim, OWCP denied the claim on June 28, 2017 finding

the medical evidence insufficient to establish that the diagnosed condition was causally related to 

the accepted May 8, 2017 employment incident. 

On July 18, 2017 appellant requested reconsideration and submitted medical reports from

Dr. Michael W. Cohen, Board-certified in occupational medicine, and a diagnostic report from his 

colleague, Dr. Kamran Ahmed, a Board-certified diagnostic radiologist. 

In a decision dated October 13, 2017, OWCP found the evidence sufficient to vacate the 

June 28, 2017 decision as it found that the medical opinion evidence was sufficient to establish a 

left knee sprain due to the accepted May 8, 2017 employment injury. However, it further found 

that the medical evidence of record did not substantiate a diagnosis of a left knee degenerative 

condition which appellant alleged had been aggravated or caused by the fall on May 8, 2017. 

In a decision of even date, OWCP accepted appellant’s claim for left knee sprain.4 

Following the October 13, 2017 decisions, OWCP received additional medical evidence. 

In a report dated September 8, 2017, Dr. Ryan Everett Bennett, a Board-certified 

orthopedic surgeon, related that appellant had been referred for evaluation of her left knee pain. 

He related that she had complaints of left knee pain for the past four months, since she injured her 

left knee at work when she stepped wrong, her kneecap dislocated, and she fell. Dr. Bennett 

explained that appellant’s knee cap popped back into place, but she had significant pain and 

swelling, and her x-rays and magnetic resonance imaging (MRI) scan demonstrated recent patellar 

dislocation with severe osteoarthritis of the patellofemoral joint and moderate osteoarthritis of the 

medial collateral ligament (MCL), and likely MCL sprain. He related that her continuing pain 

interfered with her ability to perform regular work and normal activities. In a progress note dated 

October 20, 2017, Dr. Bennett related that appellant was seen for follow up regarding her left knee 

MCL sprain, patellar dislocation, and arthritis. He related that her anterior pain had improved, but 

she still had significant pain. Dr. Bennett further related that it now appeared that appellant could 

claim workers’ compensation since the injury did happen at work. 

 

4 Appellant filed CA-7 claims for wage-loss compensation from September 2, 2017 through February 2, 2018. 

OWCP denied these claims by decisions dated March 21 and October 26, 2018. However, as appellant has not 

appealed to the Board fromthese decisions, they are not the subject of this appeal. See 20 C.F.R. § 501.3.
3

OWCP also received December 6 and 31, 2017 reports by Dr. Randall K. Schaeffer, a 

Board-certified orthopedic surgeon. Dr. Schaeffer, in the December 6, 2017 report, noted that 

appellant was seen for a left knee injury sustained from a fall at work on May 8, 2017. He 

diagnosed status post patellar dislocation, and severe left patellofemoral osteoarthritis. In the 

supplemental report, Dr. Schaeffer diagnosed severe patellofemoral osteoarthritis, which he 

attributed to appellant’s trip and fall at work. He explained that the trip and fall caused patellar 

dislocation which as a result aggravated her preexisting patellofemoral osteoarthritis. 

In an April 21, 2018 report, Dr. Schaeffer related that appellant was first seen on 

December 6, 2017 after her trip and fall at work on May 8, 2017. He noted that her x-rays revealed 

lateral patellar subluxation and lateral compartment arthritis. Appellant’s MRI scan demonstrated 

lateral patellar dislocation and severe tricompartmental arthritis primarily involving the 

patellofemoral joint. Dr. Schaeffer related that appellant had a prior left knee injury at age 14 for 

which she had been treated with a cast and eventually resumed all activities. He explained that,

while it was clear that she had preexisting osteoarthritis of her knee, it was also very clear based 

on her history that her knee condition had permanently worsened after the employment injury. As 

appellant had failed conservative medical treatment, she was now a candidate for knee replacement 

surgery. 

In a December 13, 2018 report, Dr. Joel A. Weddington, an orthopedic surgeon, diagnosed

left knee degenerative arthritis and status post left knee lateral patella dislocation. He noted 

medical and injury histories, reviewed medical evidence, and noted that OWCP only accepted knee 

sprain as due to the accepted May 8, 2007 employment injury. Dr. Weddington opined that the 

accepted conditions should be expanded to include aggravation of left knee arthritis. In support of 

this conclusion, he explained that the mechanism of injury wherein appellant sustained a severe 

left knee blunt trauma due to falling on concrete aggravated the left knee osteoarthritis, which had 

been stable and minimally symptomatic. Dr. Weddington recommended disability retirement for 

her if left knee replacement surgery was not performed. 

On February 5, 2019 appellant through counsel requested reconsideration of the 

October 13, 2017 decision denying acceptance of a left knee degenerative condition. Counsel 

acknowledged that the request for reconsideration was made more than one year after OWCP’s 

most recent merit decision, however, he related that the current medical evidence established that 

the initial diagnosis of left knee sprain was an under diagnosis of her condition, as the record as a 

whole now established a more serious set of diagnoses. 

By decision dated April 12, 2019, OWCP denied appellant’s request for reconsideration, 

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

she had not demonstrated clear evidence of error, it only reviewed the December 13, 2018 report 

from Dr. Weddington. OWCP did reference that medical reports dated from September 8, 2017 

through April 21, 2018 had been previously considered by OWCP in its decisions dated March 21

and October 26, 2018 regarding appellant’s claims for wage-loss compensation arising from her 

accepted left knee sprain. 
4

LEGAL PRECEDENT

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

merit review.5 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.6 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.7 Imposition of this one-year filing limitation does not 

constitute an abuse of discretion.8

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

a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited 

review to determine whether it demonstrates clear evidence of error.9 If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.10

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

issue which was decided by OWCP.11 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.12 Evidence that does not raise a 

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

clear evidence of error.13 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.14 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.15 To demonstrate clear evidence 

of error, the evidence submitted must be of sufficient probative value to shift the weight of the 

 

5

5 U.S.C. § 8128(a); see A.B., Docket No. 19-1539 (issued January 27, 2020); M.E., Docket No. 18-1497 (issued 

March 1, 2019); W.C., 59 ECAB 372 (2008).

6

20 C.F.R. § 10.607(a).

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

8

See M.E, supra note 5; E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 

104 (1989).

9

See 20 C.F.R. § 10.607(b); M.E., supra note 5; Charles J. Prudencio, 41 ECAB 499 (1990).

10 G.G., Docket No. 18-1074 (issued January 7, 2019); see also id. at § 10.607(b); supra note 7at Chapter 2.1602.5 

(February 2016).

11 A.A., Docket No. 19-1219 (issued December 10, 2019); J.F., Docket No. 18-1802 (issued May 20, 2019); J.D., 

Docket No. 16-1767 (issued January 12, 2017); see Dean D. Beets, 43 ECAB 1153 (1992).

12 Id.; see also Leone N. Travis, 43 ECAB 227 (1999).

13 J.F., supra note 11; J.D., supra note 11; Jimmy L. Day, 48 ECAB 652 (1997).

14 Id.

15 Id.
5

evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s 

decision.16

OWCP’s procedures note that the term clear evidence of error is intended to represent a 

difficult standard.17 The claimant must present evidence which on its face shows that OWCP made 

an error. 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.18 The Board makes an independent determination of 

whether a claimant has demonstrated clear evidence of error on the part of OWCP.19

ANALYSIS

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

In the case of William A. Couch20 the Board held that, when adjudicating a claim, OWCP 

is obligated to consider all evidence properly submitted by a claimant and received by OWCP 

before the final decision is issued. While OWCP referenced the December 13, 2018 report from

Dr. Weddington in its April 12, 2019 decision, it did not reference a number of additional reports 

from Drs. Bennett, Schaeffer, and Weddington in its analysis of whether appellant had established 

clear evidence of error in the denial of her request for expansion of the acceptance of the claim to 

include additional diagnosed left knee conditions. As the Board’s decisions are final as to the 

subject matter appealed,21 it is crucial that all evidence relevant to that subject matter which was 

properly submitted to OWCP prior to the time of issuance of its final decision be addressed by 

OWCP.22

For this reason, the case will be remanded to OWCP to enable it to properly consider all 

the evidence submitted at the time of the April 12, 2019 decision followed by an appropriate 

decision on whether appellant has demonstrated clear evidence of error. 

CONCLUSION

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

 

16 J.F., supra note 11.

17 See G.G., supra note 10.

18 J.F., supra note 11; J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 7 at Chapter 2.1602.5(a) 

(February 2016).

19 E.C., Docket No. 19-0646 (issued February26, 2020); W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., 

Docket No. 18-0693 (issued December 7, 2018).

20 41 ECAB 548 (1990); see G.M., Docket No. 19-1395 (issued February 6, 2020). 

21 20 C.F.R. § 501.6(d).

22 Supra note 23. 
6

ORDER

IT IS HEREBY ORDERED THAT the April 12, 2019 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part. The case is remanded for further 

proceedings consistent with this decision of the Board. 

Issued: April 6, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board