United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Fort Lauderdale, FL, Employer

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Docket No. 18-0852

Issued: January 14, 2020

Appearances: Case Submitted on the Record

Capp P. Taylor, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 13, 2018 appellant, through counsel, filed a timely appeal from a January 22, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision dated August 25, 2015, 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 appellant’s claim.

 

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.
2

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 January 13, 2000 appellant, then a 44-year-old manual distribution clerk, filed an 

occupational disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel 

syndrome as a result of performing repetitive job duties while in the performance of duty. She 

noted that she first became aware of her condition on December 20, 1999 and realized its 

relationship to her federal employment on December 27, 1999. Appellant did not stop work, but 

returned to a limited-duty position. OWCP accepted the claim for bilateral carpal tunnel syndrome 

on February 22, 2000. 

On April 29, 2015 OWCP referred appellant for a second opinion to Dr. David Lotman, a 

Board-certified orthopedist. In a report dated May 22, 2015, Dr. Lotman noted examination of the 

right hand and wrist demonstrated prominence of the A1 pulley of the thumb without triggering. 

With regard to the left hand and wrist examination revealed enlargement of the A1 pulley over the 

left thumb, limited flexion, and decreased sensation. Dr. Lotman diagnosed bilateral carpal tunnel 

syndrome resolved, right cubital tunnel syndrome, and possible bilateral ulnar neuritis of the wrist. 

He opined that appellant’s accepted conditions of bilateral carpal tunnel syndrome resolved and 

she had no continuing residuals. Dr. Lotman indicated that appellant could not perform her 

customary duties because of the presence of pathology in the ulnar tunnel/Guyon’s canal at the 

wrist which would be subjected to the same irritations from occupational activities as her prior 

carpal tunnel syndrome. He advised that her overall work capacity was limited by ulnar neuritis,

but she could work in a sedentary capacity. In a work capacity evaluation (Form OWCP-5c),

Dr. Lotman noted that appellant could not work in her usual capacity due to ulnar neuritis, but 

could return to medium strength level.

On June 29, 2015 OWCP proposed to terminate all benefits finding that Dr. Lotman’s 

May 22, 2015 report represented the weight of the medical evidence to establish no continuing 

residuals of her work-related conditions.

In a report dated July 7, 2015, Dr. Vega noted appellant’s continued complaints of pain in 

the median nerves and wrists. He performed a corticosteroid injection. On July 14, 2015 Dr. Vega 

reviewed Dr. Lotman’s report and disagreed with his findings. He opined that appellant continued 

to have residuals of carpal tunnel with a positive Tinel’s sign and EMG findings. Dr. Vega noted 

findings of neuropathy in the ulnar tunnel which was not work related.

In a decision dated August 25, 2015, OWCP terminated appellant’s compensation benefits 

effective the same date. It based its decision on the May 22, 2015 report of Dr. Lotman, OWCP’s

referral physician, who opined that her accepted work-related conditions resolved and she did not 

have any residuals of her work-related injury. He noted that appellant could return to work with 

restrictions pertaining to ulnar neuritis.
3

On March 1, 2017 appellant, through counsel, requested that her claim be expanded to 

include bilateral ulnar neuritis of the wrist. Counsel asserted that Dr. Lotman had opined that this 

condition was causally related to her accepted employment factors in his May 22, 2015 report. 

In a letter dated March 13, 2017, OWCP indicated that a decision was issued on August 25, 

2015 terminating appellant’s wage-loss compensation and medical benefits. 

On December 27, 2017 appellant, through counsel, requested reconsideration of OWCP’s 

August 25, 2015 termination decision. Counsel asserted that it was legal error for OWCP to not 

issue a decision on the request to expand the accepted conditions. Appellant further alleged that 

it was a mistake of fact that OWCP did not accept bilateral ulnar neuritis as Dr. Lotman attributed

this condition to performing her work duties. She sought expansion of her claim to include 

bilateral ulnar neuritis of the wrists.

By decision dated January 22, 2018, OWCP denied appellant’s December 27, 2017

reconsideration request, finding that it was untimely filed and failed to demonstrate clear evidence 

of error.

LEGAL PRECEDENT

To be entitled to a merit review of an OWCP decision denying or terminating a benefit,

an application for reconsideration must be received by OWCP 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 (iFECS).

4

 The Board has found that the imposition of the one-year time limitation

does not constitute an abuse of the discretionary authority granted OWCP undersection 8128(a)

of FECA.5

OWCP may not deny a request for reconsideration solely on the grounds that it was

untimely filed. When a request for reconsideration is untimely filed, it must nevertheless

undertake a limited review to determine whether the request demonstrates clear evidence of

error.6 OWCP’s regulations and procedures provide 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(a), 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. 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

 

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 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

6 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

7

Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 4 at Chapter 2.1602.5(a) (February 2016).
4

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.8

OWCP’s procedures note and the Board has held 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 created a conflict in medical opinion requiring further 

development, is not clear evidence of error.9 The Board makes an independent determination of

whether a claimant has demonstrated clear evidence of error on the part of OWCP.10

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.

As noted above, OWCP’s regulations provide that the one-year time limitation period

for requesting reconsideration begins on the date of the last merit decision.11 Because

appellant’s request for reconsideration was received on December 27, 2017, more than one

year after the August 25, 2015 merit decision, OWCP properly determined that it was untimely

filed.12 Therefore, appellant must demonstrate clear evidence of error on the part of OWCP

regarding the August 25, 2015 decision.

The Board finds that appellant has not demonstrated clear evidence of error on the part of 

OWCP. Counsel asserted that it was legal error for OWCP to not issue a decision on the request 

to expand the accepted conditions and that it was a mistake of fact that OWCP did not accept 

bilateral ulnar neuritis based on Dr. Lotman’s report. However, these arguments do not 

demonstrate clear evidence of error as they do not raise a substantial question as to the correctness 

of OWCP’s most recent merit decision which terminated appellant’s wage-loss compensation and 

benefits for the accepted bilateral carpal tunnel syndrome.

 

8 Robert G. Burns, 57 ECAB 657 (2006).

9 Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.1602.5(a) (February 2016); J.S., Docket No.

16-1240 (issued December 1, 2016).

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

11 20 C.F.R. § 10.607(a). 

12 Id. at § 10.607(a) (2011).
5

The Board thus finds that appellant’s reconsideration request was untimely filed and 

failed to demonstrate clear evidence of error.

On appeal counsel reiteratesthat OWCP erred in not expanding appellant’s claim to include 

bilateral ulnar neuritis and that it was legal error for OWCP to not issue a decision on the request 

to expand the accepted conditions. As explained above, the Board does not have jurisdiction over 

the merits of the claim and OWCP properly determined appellant’s untimely reconsideration 

request failed to demonstrate clear evidence of error.

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. 

ORDER

IT IS HEREBY ORDERED THAT the January 22, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 14, 2020

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board