United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.S., Appellant

and

U.S. POSTAL SERVICE, LINCOLNTON 

STATION, New York, NY, Employer

__________________________________________

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Docket No. 18-1556

Issued: September 17, 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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 10, 2018 appellant filed a timely appeal from a February 14, 2018 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

has elapsed from OWCP’s last merit decision, dated November 16, 2016, 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 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.

 

1 Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20 

C.F.R. § 501.5(b). By order dated February 22, 2019, the Board exercised its discretion and denied the request, finding 

that the arguments on appeal could adequately be addressed in a decision based on the case record. Order Denying 

Request for Oral Argument, Docket No. 18-1556 (issued February 22, 2019).

2 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On October 5, 2015 appellant, then a 55-year-old supervisor, filed a traumatic injury claim 

(Form CA-1) alleging that on September 26, 2015 he experienced mental trauma, was unable to 

sleep, and had nightmares as a result of witnessing a shooting while in the performance of duty. 

On the reverse side of the claim form the employing establishment controverted the claim, 

contending that appellant was on a personal break at the time of the alleged employment incident. 

In a letter further controverting the claim, dated October 13, 2015, the employing establishment

asserted that appellant was on an unauthorized coffee break and was, therefore, not in the 

performance of duty at the time of the alleged injury.

OWCP received medical evidence indicating that appellant was evaluated for an 

emergency on September 30, 2015.

In a development letter dated October 22, 2015, OWCP advised appellant that the evidence

submitted was insufficient to establish his claim. It requested additional factual and medical

evidence, and provided a questionnaire for his completion. OWCP afforded appellant 30 days to 

respond. By separate letter of even date, it requested that the employing establishment respond to 

appellant’s allegations.

Subsequently, OWCP received letters dated October 27 and November 3, 2015 by

Dr. Raul J. Puertollano, an attending Board-certified psychiatrist, who diagnosed appellant as 

having panic disorder without agoraphobia, acute stress disorder, and post-traumatic stress 

disorder causally related to the alleged September 26, 2015 employment incident, and advised that 

he was totally disabled from work.

On November 2, 2015 appellant responded to OWCP’s development questionnaire. He 

related that he walked between two postal stations on a daily basis and that on September 26, 2015 

he witnessed a man with a gun shooting at three men a few feet in front of him. Appellant noted 

that one man was shot in the back and fell to the ground and the other two men ran. He immediately 

reported this incident to his manager.

By decision dated November 23, 2015, OWCP denied appellant’s claim, finding that the 

factual component of fact of injury had not been established. It concluded, therefore, that the 

requirements had not been met to establish an injury as defined by FECA.

OWCP subsequently received an e-mail dated November 9, 2015, wherein the employing 

establishment responded to OWCP’s development letter. It asserted that appellant was off its 

premises and not performing his regularly assigned duties when the alleged work incident 

occurred. The employing establishment further claimed that he did not notify anyone to cover his 

absence when he stepped out of the building. It noted the accommodations provided to appellant 

following the alleged incident.

OWCP received an additional letter dated November 10, 2015 in which Dr. Puertollano 

continued to address appellant’s disability status.

On December 9, 2015 appellant requested a telephonic hearing with a representative of 

OWCP’s Branch of Hearings and Review regarding the November 23, 2015 decision.
3

OWCP thereafter received an additional letter dated November 24, 2015 in which

Dr. Puertollano continued to opine that appellant was totally disabled from work.

During a telephonic hearing, held on July 27, 2016, appellant asserted that he was not on a 

coffee break. He testified that he left one postal station and was walking to another postal station 

when the alleged employment incident occurred. Appellant noted that he had witness statements 

from three coworkers. He maintained that he told three female employees at a window where he 

was going. Appellant described his emotional conditions and the subsequent medical treatment 

he received.

Following the hearing, OWCP received a letter dated August 25, 2016 by Dr. Puertollano 

indicating that appellant’s preexisting anxiety and panic symptoms were aggravated by the alleged 

September 26, 2015 employment incident.

By decision dated November 16, 2016, an OWCP hearing representative modified the 

November 23, 2015 decision to find that appellant had established that the September 26, 2015 

employment incident had occurred as alleged, but affirmed the denial of the claim as appellant 

failed to provide rationalized medical evidence to establish that his diagnosed emotional conditions

were caused or aggravated by the accepted employment incident.

OWCP continued to receive medical evidence. An unsigned report dated December 28, 

2016 from Clinical Management Consultants noted that appellant had been under its care since 

2002. Appellant was diagnosed as having panic disorder without agoraphobia and acute stress 

disorder for which he was prescribed medication. A history of the accepted September 26, 2015 

employment incident was noted. It was also noted that, after this incident, appellant’s anxiety and 

panic symptoms were exacerbated and he had trouble sleeping. His spouse had to wake him up 

because he was having bad nightmares and outbursts in his sleep. On January 5, 2016 appellant 

was cleared to return to work on January 11, 2016.

In medical notes dated September 30, 2015 to January 5, 2016, Dr. Puertollano reported

that appellant described the accepted September 26, 2015 employment incident. He discussed 

findings on mental examination and reiterated his prior diagnoses of panic disorder without 

agoraphobia and acute stress disorder.

In a letter received by OWCP on February 9, 2018, appellant requested reconsideration of 

the November 16, 2016 decision. He submitted a partial undated report in which Dr. Puertollano 

reiterated his prior diagnoses of panic disorder without agoraphobia and acute stress disorder.

OWCP, by decision dated February 14, 2018, denied appellant’s request for 

reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
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LEGAL PRECEDENT

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

merit review.3 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.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 Imposition of this one-year filing limitation does

not constitute an abuse of discretion.6

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.7 If an application

demonstrates clear evidence of error, it will reopen the case for merit review.8

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

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

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

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

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

produce a contrary conclusion. 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. To demonstrate clear evidence

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.9

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

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

an error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed,

well-rationalized medical report which, if submitted before the denial was issued, would have

 

3

Id. at § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

4 20 C.F.R. § 10.607(a).

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

6 G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.

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

7 See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4 2018); Charles J. Prudencio, 41 ECAB 

499, 501-02 (1990).

8 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See 

also 20 C.F.R. § 10.607(b); supra note 5 at Chapter 2.1602.5 (February 2016).

9

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).
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created a conflict in medical opinion requiring further development, is not clear evidence of error.10 

The Board makes an independent determination of whether a claimant has demonstrated clear

evidence of error on the part of OWCP.11

ANALYSIS

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

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

OWCP’s regulations12 and procedures13 establish a one-year time limit for requesting

reconsideration, which begins on the date of the last merit decision issued in the case. A right to

reconsideration within one year also accompanies any subsequent merit decision on the issues.14 

The most recent merit decision was an OWCP hearing representative’s November 16, 2016

decision which affirmed the prior denial of appellant’s traumatic injury claim, as modified. As his

request for reconsideration was not received by OWCP until February 9, 2018, more than one year

after the November 16, 2016 decision, the Board finds that it was untimely filed. Because

appellant’srequest was untimely, he must demonstrate clear evidence of error on the part of OWCP

in having denied his emotional condition claim.

The Board further finds that appellant’s reconsideration request failed to demonstrate clear

evidence of error on the part of OWCP in its last merit decision. 

Appellant submitted new medical notes dated September 30, 2015 to January 5, 2016 and 

a partial undated report, wherein Dr. Puertollano provided a history of the accepted September 26, 

2015 employment incident and diagnosed panic disorder without agoraphobia and acute stress 

disorder. The medical notes and report are largely repetitive of Dr. Puertollano’s earlier reports 

dated October 27 and November 3, 2015. Repetitive or cumulative evidence is insufficient to shift 

the weight of the evidence in favor of the claimant.15 For the foregoing reason, the Board finds 

that Dr. Puertollano’s medical notes and report do not raise a substantial question concerning the 

correctness of OWCP’s decision to deny appellant’s traumatic injury claim.

The unsigned December 28, 2016 report from Clinical Management Consultants, is also

insufficient to shift the weight of the medical evidence. The Board has held, a report that is 

unsigned or bears an illegible signature lacks proper identification and cannot be considered 

probative medical evidence.16 Therefore, this report does not shift the weight of the evidence in 

 

10 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 5 at Chapter 2.1602.5(a) (February 2016).

11 D.S., Docket No. 17-0407 (issued May 24, 2017).

12 20 C.F.R. § 10.607(a); see J.W., supra note 9; Alberta Dukes, 56 ECAB 247 (2005).

13 Supra note 5 at Chapter 2.1602.4 (February 2016); Veletta C. Coleman, 48 ECAB 367, 370 (1997).

14 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

15 See A.M., Docket No. 17-1434 (issued January 2, 2018); D.B., Docket No. 16-0539 (issued May 26, 2016).

16 See L.M., Docket No. 18-0473 (issued October 22, 2018); Merton J. Sills, 39 ECAB 572, 575 (1988). .
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favor of appellant’s claim or raise a substantial question concerning the correctness of OWCP’s 

decision to deny his traumatic injury claim.

As the evidence submitted in support of appellant’s untimely request for reconsideration is 

insufficient to shift the weight of the evidence in favor of appellant’s claim or raise a substantial 

question that OWCP erred in its November 16, 2016 decision, the Board finds that OWCP properly 

denied appellant’s reconsideration request, as it was untimely filed and failed to demonstrate clear 

evidence of error.

On appeal appellant contends that he had submitted all the necessary documents to 

establish an emotional condition causally related to the accepted September 26, 2015 employment 

incident. However, as previously noted, the Board lacks jurisdiction to review the merits of this

case.

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the February 14, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 17, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board