United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.F., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Houston, TX, Employer

__________________________________________

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Docket No. 18-1802

Issued: May 20, 2019

Appearances: Case Submitted on the Record

Joyce Fuller, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 27, 2018 appellant, through his representative, filed a timely appeal from an 

August 29, 2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than one year has elapsed since the last merit decision dated April 22, 2002 to the filing 

 

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

of this appeal, pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3,3the Board lacks jurisdiction to review the merits of this case.4

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration as it 

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

FACTUAL HISTORY

This case has previously been before the Board.5 The facts and circumstances set forth in 

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

On August 20, 2000 appellant, then a 47-year-old mail processor, filed a traumatic injury 

claim (Form CA-1) alleging that on August 9, 2000 he sustained a right shoulder and rotator cuff 

injury, as well as clavicle strain, when a coworker tapped him on his previously injured shoulder, 

which caused him such pain that he fell to his knees. OWCP assigned the claim File No. 

xxxxxx381.6 By merit decisions dated November 22, 2000, May 29, 2001, and April 22, 2002, 

OWCP denied the claim, finding the medical evidence of record was insufficient to establish that 

the diagnosed conditions were causally related to the August 9, 2000 employment incident.

 

2 5 U.S.C. § 8101 et seq.

3 For final adverse decisions of OWCP issued prior to November 19, 2008, the Board’s review authority is limited 

to appeals which are filed within one year from the date of issuance of OWCP’s decision. See 20 C.F.R. § 501.3(d)(2). 

For final adverse decisions issued by OWCP on and after November 19, 2008, the Board’s review authority is limited 

to appeals which are filed within 180 days from the date of issuance of OWCP’s decision. See 20 C.F.R. § 501.3(e).

4 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. 

5 Docket No. 18-0250 (issued July 6, 2018); Docket No. 16-0871 (issued June 10, 2016); Docket No. 14-1589 

(issued November 24, 2014); Docket No. 12-1749 (issued February 5, 2013); Docket No. 10-2378 (issued August 16, 

2011); Docket No. 09-1027 (issued December 17, 2009); Docket No. 08-0271 (issued June 20, 2008); Docket No. 

07-0978 (issued August 17, 2007); Docket No. 04-2283 (issued December 21, 2005).

6 The record indicates that under OWCP File No. xxxxxx590 appellant had a May 3, 2000 claim accepted for right 

shoulder strain. Under OWCP File No. xxxxxx559, he had a September 18, 1991 claim accepted for left elbow lateral 

epicondylitis, left shoulder adhesive capsulitis, left brachial plexus lesions, left tenosynovitis of the hand/wrist and 

sprain/strains of the right shoulder, upper arm and acromioclavicular (AC) joint. The September 18, 1991 claim,

OWCP File No. xxxxxx559, has been established as a master file with both the May 3, 2000 and the current August 9, 

2000 claim on appeal as subsidiary files.
3

Appellant filed numerous requests for reconsideration to OWCP and appeals to the Board 

following the last April 22, 2002 merit decision.7 

In the most recent appeal, by decision dated July 6, 2018, the Board affirmed a 

September 28, 2017 nonmerit OWCP decision, finding that appellant’s reconsideration request 

was untimely filed and failed to demonstrate clear evidence of error.8

On July 30, 2018 OWCP received appellant’s July 22, 2018 request for reconsideration. 

In support of the reconsideration request, appellant’s representative submitted a letter dated 

July 22, 2018. She contended that OWCP failed to consider appellant’s October 16, 2000 

statement and the September 18, 2000 medical narrative of Dr. Gary M. Gartsman, an orthopedic 

surgeon, which were of record prior to OWCP’s April 22, 2002 decision, with regard to how the 

injury occurred and that appellant had sustained an acromioclavicular (AC) joint strain. 

Appellant’s representative contended that appellant’s May 3, 2000 employment injury was 

aggravated by the incident of August 9, 2000. She contended that fact of injury evidence and 

medical evidence which diagnosed an acute AC strain and ligament damage as a result of the 

August 9, 2000 incident were not considered. References to appellant’s responses to OWCP’s 

requests for information were noted along with findings from OWCP’s April 22, 2002 decision. 

Copies of the referenced material were submitted along with previously submitted copies of 

appellant’s Form CA-1 and an August 22, 2000 initial assessment from Dr. J.P. Trowbridge, a

medical toxicologist. 

 

7

In a decision dated December 21, 2005, the Board affirmed an August 27, 2004 OWCP decision, finding that 

appellant’s request for reconsideration was untimely filed and failed to demonstrate clear evidence of error. Docket 

No. 04-2283 (issued December 21, 2005). In a decision dated August 17, 2007, the Board dismissed the appeal as 

there was no final decision issued by OWCP within one year of the filing of the appeal. Order Dismissing Appeal, 

Docket No. 07-0978 (issued August 17, 2007). By decision dated June 20, 2008, the Board affirmed an October 12, 

2007 OWCP decision, holding that appellant’s application for reconsideration was untimely filed and failed to 

demonstrate clear evidence of error. Docket No. 08-0271 (issued June 20, 2008). In a decision dated December 17, 

2009, the Board affirmed OWCP’s February 13, 2009 decision finding appellant’s application for reconsideration was 

untimely filed and failed to demonstrate clear evidence of error. Docket No. 09-1027 (issued December 17, 2009). 

On May 6, 2010 the Board issued an order denying petition for reconsideration. Docket No. 09-1027, petition for 

recon. denied (issued May 6, 2010). In a decision dated August 16, 2011, the Board affirmed an August 3, 2010 

OWCP decision, finding appellant’s application for reconsideration was untimely filed and failed to demonstrate clear 

evidence of error. Docket No. 10-2378 (issued August 16, 2011). On February 23, 2012 the Board issued an order 

denying petition for reconsideration. Docket No. 10-2378, petition for recon. denied (issued February 23, 2012). By 

decision dated February 5, 2013, the Board affirmed a June 21, 2012 OWCP decision, again finding appellant’s 

reconsideration request was untimely filed and failed to demonstrate clear evidence of error. Docket No. 12-1749 

(issued February 5, 2013). On August 2, 2013 the Board issued an order denying petition for reconsideration. Docket 

No. 12-1749, petition for recon. denied (issued August 2, 2013). The Board in a November 24, 2014 decision, 

affirmed a June 4, 2014 OWCP decision finding that appellant’s reconsideration request was untimely filed and failed 

to demonstrate clear evidence of error. Docket No. 14-1589 (issued November 24, 2014). In a June 10, 2016 decision, 

the Board affirmed a February 16, 2016 OWCP decision finding that appellant’s application for reconsideration was 

untimely filed and failed to demonstrate clear evidence of error.

8 Docket No. 18-0250 (issued July 6, 2018). The Board’s decision dated July 6, 2018 became final after 30 days 

of issuance and is not subject to further review. 20 C.F.R. § 501.6(d); see C.M., Docket No. 18-0341 (issued August 9, 

2018); T.B., Docket No. 15-0001 (issued July 1, 2015); C.M., Docket No. 15-0471 (issued April 27, 2015); D.A., 

Docket No. 08-1217 (issued October 6, 2008).
4

By decision dated August 29, 2018, OWCP denied appellant’s request for reconsideration, 

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

LEGAL PRECEDENT

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

merit review.9 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.10 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).11 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.12

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.13 If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.14

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

issue which was decided by OWCP.15 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.16 Evidence which does not raise a 

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

clear evidence of error.17 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.18 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.19 To demonstrate clear evidence 

 

9 5 U.S.C. § 8128(a); see M.E., Docket No. 18-1497 (issued March 1, 2019); J.W., Docket No. 18-0703 (issued 

November 14, 2018); Y.S., Docket No. 08-0440 (issued March 16, 2009).

10 20 C.F.R. § 10.607(a).

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

12 See M.E., supra note 9; E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 

104 (1989).

13 See 20 C.F.R. § 10.607(b); M.E., supra note 9; Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

14 G.G., Docket No. 18-1074 (issued January 7, 2019); see also 20 C.F.R. § 10.607(b); supra note 10 at Chapter 

2.1602.5 (February 2016).

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

16 Id.; see also Leona N. Travis, 43 ECAB 227 (1999).

17 J.D., supra note 15; Jimmy L. Day, 48 ECAB 652 (1997).

18 Id.

19 Id.
5

of error, the evidence submitted 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.20

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

difficult standard.21 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.22 The Board makes an independent determination of 

whether a claimant has demonstrated clear evidence of error on the part of OWCP.23

ANALYSIS

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

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

OWCP’s regulations24 and procedures25 establish a one-year time limit for requesting 

reconsideration, which begins on the date of the last merit decision issued in the case. The last 

decision on the merits of this case was OWCP’s April 22, 2002 decision, finding that the medical 

evidence of record was insufficient to establish that the diagnosed conditions were causally related 

to the August 9, 2000 employment incident. Appellant had one year from the date of that decision 

to timely request reconsideration. As his reconsideration request was received on July 30, 2018, 

almost 16 years after the April 22, 2002 merit decision, it was untimely filed. Therefore, appellant

must demonstrate clear evidence of error by OWCP.26

The Board finds that appellant failed to demonstrate clear evidence of error on the part of 

OWCP. On reconsideration, and on appeal, appellant, through his representative, again argued 

that his employment injury of May 3, 2000 was aggravated by the incident of August 9, 2000. 

Appellant’s representative contended that evidence which diagnosed appellant with an acute AC 

strain and ligament damage as a result of the August 9, 2000 injury was not properly considered

by OWCP. References to appellant’s responses to OWCP’s requests for information were noted 

along with findings from OWCP’s April 22, 2002 decision. Copies of the referenced material 

 

20 M.E., supra note 9; Robert G. Burns, 57 ECAB 657 (2006).

21 See G.G., supra note 14.

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

23 See M.E., supra note 9; D.S., Docket No. 17-0407 (issued May 24, 2017).

24 20 C.F.R. § 10.607(a); see G.G., supra note 14; Alberta Dukes, 56 ECAB 247 (2005).

25 Supra note 11 at Chapter 2.1602.4 (February 2016); see A.F., Docket No. 18-0645 (issued October 26, 2018); 

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

26 20 C.F.R. § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016). 
6

were submitted along with previously submitted copies of appellant’s Form CA-1 and an 

August 22, 2000 initial assessment from Dr. Trowbridge. 

Appellant did not, however, sufficiently explain how duplicative and cumulative evidence 

or argument raised a substantial question as to the correctness of OWCP’s decision.27 Appellant’s 

arguments were previously considered in the Board’s prior decisions. With respect to findings 

made in the Board’s prior decision, those matters are res judicata absent any further review by 

OWCP under section 8128 of FECA.28

The Board accordingly finds that the arguments and previously submitted evidence are of 

insufficient probative value to shift the weight of the evidence in favor of appellant and raise a 

substantial question as to the correctness of OWCP’s decision.29 Appellant has not raised an 

argument or submitted any evidence that shows on its face that OWCP committed an error in 

denying his claim, nor has he provided evidence of sufficient probative value to raise a substantial 

question as to the correctness of OWCP’s April 22, 2002 decision. Thus, OWCP properly 

determined that appellant’s untimely request for reconsideration fails to demonstrate clear 

evidence of error.30

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.

 

27 See G.G., supra note 14; see also A.M., Docket No. 10-0526 (issued November 8, 2010).

28 See R.C., Docket No. 17-0198 (issued January 28, 2019). 

29 See G.G., supra note 14; J.S., Docket No. 10-0385 (issued September 15, 2010); B.W., Docket No. 10-0323 

(issued September 2, 2010).

30 See S.M., Docket No. 18-0075 (issued April 11, 2018); see also M.B., Docket No. 17-1505 (issued 

January 9, 2018).
7

ORDER

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

Workers’ Compensation Programs is affirmed.

Issued: May 20, 2019

Washington, DC

Christopher J. Godfrey, 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