United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.M., Appellant

and

U.S. POSTAL SERVICE, PACIFIC BEACH 

POST OFFICE, San Diego, CA, Employer

__________________________________________

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Docket No. 20-0961

Issued: December 9, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 30, 2020 appellant filed a timely appeal from an October 30, 2019 nonmerit 

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

elapsed from OWCP’s last merit decision, dated September 13, 2018, 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 September 16, 2019 request for 

reconsideration of the merits of his claim, finding that it was untimely filed and failed to 

demonstrate clear evidence of error.

FACTUAL HISTORY

On February 22, 2016 appellant, then a 23-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he developed neck and left arm conditions due to factors 

 

1 5 U.S.C. § 8101 et seq.
2

of his federal employment, including carrying mail and the satchel. He noted that he first became 

aware of his conditions and their relationship to factors of his federal employment on 

February 2, 2016. 

In an undated narrative statement, appellant related that on February 2, 2016 he cased his 

assigned mail route, loaded up his satchel, and put it over his left shoulder, placed the swing of 

flats on his left forearm and the delivery point sequence mail in his left hand. Shortly thereafter, 

he reported experiencing pain and numbness in his left arm to his supervisor. 

On February 24, 2016 Dr. Michael S. Duffy, an osteopath, reported treating appellant on 

February 15 and 19, 2016 for left arm and shoulder pain that began on February 2, 2016 while 

carrying his mail satchel at work. He diagnosed lateral epicondylitis and weakness of lumbosacral 

spine, left arm and shoulder and performed a lidocaine injection.

In a March 1, 2016 development letter, OWCP informed appellant of the deficiencies of 

his claim. It advised him of the type of factual and medical evidence necessary to establish his 

claim and attached a questionnaire for his completion. OWCP afforded appellant 30 days to submit 

the requested factual and medical evidence.

On March 7, 2016 Dr. David Davis, a Board-certified family practitioner, evaluated 

appellant for left arm and left upper extremity pain that began on February 2, 2016, while carrying 

mail at work. He diagnosed left elbow pain and returned appellant to work with restrictions.

By decision dated May 23, 2016, OWCP denied appellant’s occupational disease claim, 

finding that the medical evidence of record was insufficient to establish that his neck and left arm 

conditions were causally related to the accepted factors of his federal employment. 

In a report dated May 24, 2016, Dr. Sidney H. Levine, a Board-certified orthopedist, noted 

evaluating appellant on May 12, 2016 for a left elbow and forearm condition. Appellant reported 

delivering mail on February 2, 2016 and carrying a mailbag weighing approximately 25 pounds

across his left shoulder and magazines weighing about 6 pounds on his left forearm when he felt a 

pinching and a numb sensation throughout the entire left upper extremity. Dr. Levine diagnosed 

lateral epicondylitis of the left elbow, left carpal tunnel syndrome (CTS), and overuse syndrome 

of the left upper extremity. He opined that within reasonable medical certainty appellant sustained 

an injury to his left upper extremity as a result of his work activities performed in the course of his 

employment. In an undated doctor’s first report of occupational injury or illness, Dr. Levine 

returned appellant to limited duty. In primary treating physician’s progress reports dated May 26 

and June 9, 2016, he diagnosed other synovitis and tenosynovitis of the hand and sprain of the 

elbow.

On February 24, 2017 appellant requested reconsideration. 

By decision dated April 5, 2017, OWCP denied modification of the May 23, 2016 decision.

In reports dated May 16 and August 4, 2017, Dr. Levine noted examining appellant for 

persistent right elbow pain. He noted tenderness of the supinator, and decreased sensation of the 

thumb, index finger, and dorsal radial aspect of the left hand. 

On May 26, 2017 appellant requested reconsideration.
3

By decision dated August 24, 2017, OWCP denied modification of the April 5, 2017

decision.

On January 29, 2018 appellant requested reconsideration. He asserted that, over time,

carrying too much mail and trying to keep up with management’s expectations caused his work 

injury. Appellant referenced reports from Dr. Levine in support of his claim. 

By decision dated April 16, 2018, OWCP denied appellant’s request for reconsideration of 

the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

In a supplemental report dated August 14, 2018, Dr. Levine reiterated the history, findings,

and diagnoses noted in his May 24, 2016 report. He further noted that the findings on examination 

and diagnoses were consistent with appellant’s account of the injury and he had no prior history 

of left elbow or left upper extremity injury. Dr. Levine opined that appellant’s conditions were

causally related to the accepted employment factors.

On August 29, 2018 appellant requested reconsideration. 

By decision dated September 13, 2018, OWCP denied modification of the August 24, 2017

decision.

Appellant submitted reports from Dr. Levine dated May 24, 2016, May 16, 2017, and 

August 14, 2018 and unsigned primary treating physician’s progress reports dated May 26 and 

June 9, 2016, all previously of record.

In a primary treating physician’s progress report dated July 11, 2016, Dr. Levine diagnosed 

complication of surgical and medical care unspecified and pain in elbow. He returned appellant 

to modified duty. In an attending physician’s report (Form CA-20) dated August 15, 2016,

Dr. Levine noted improvement in appellant’s condition and that he could lift up to 15 pounds. 

OWCP received a supplemental report from Dr. Levine, dated November 20, 2018, who 

noted that the findings on examination were consistent with those of lateral epicondylitis, overuse 

syndrome, and CTS. Dr. Levine opined that appellant’s symptoms arose as a result of his 

employment and affirmed a causal relationship between appellant’s work activities and the injury 

sustained. He noted that medical treatment was appropriate and necessary. Dr. Levine released 

appellant from medical care and returned him to regular duty.

In an undated statement entitled “Description of New Documents,” appellant reiterated a 

history of injury and subsequent treatment.

On May 21, 2019 appellant requested reconsideration.

OWCP, by decision dated June 13, 2019, denied appellant’s request for reconsideration of 

the merits of his claim pursuant to 5 U.S.C. § 8128(a), finding that the request neither raised 

substantive legal questions, nor included relevant and pertinent new evidence.

In a statement dated September 9, 2019, appellant reiterated the history of injury and 

subsequent medical treatment. He asserted that his injury was work related and referenced a 

November 20, 2018 report from Dr. Levine in support of his claim. 
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On September 16, 2019 appellant again requested reconsideration. 

By decision dated October 30, 2019, 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.2 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.3 Timeliness is determined by the document receipt date (i.e., 

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).4 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.5

When a request for reconsideration is untimely, OWCP undertakes a limited review to 

determine whether the request presents clear evidence that OWCP’s most recent merit decision 

was in error.6 Its procedures state 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, 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.8 The evidence must be positive, precise and explicit and must 

manifest on its face that OWCP committed an error.9 Evidence which does not raise a substantial 

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

evidence of error.10 It is not enough merely to show that the evidence could be construed so as to 

produce a contrary conclusion.11 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 

 

2 See 5 U.S.C. § 8128(a); M.E., Docket No. 18-1497 (issued March 1, 2019); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

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 F.N., Docket No. 18-1543 (issued March 6, 2019); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6 L.C., Docket No. 18-1407 (issued February 14, 2019); Leon J. Modrowski, 55 ECAB 196 (2004); Thankamma 

Mathews, 44 ECAB 765 (1993); Jesus D. Sanchez, 41 ECAB 964 (1990).

7 20 C.F.R. § 10.607(b) provides: “OWCP will consider an untimely application for reconsideration only if the 

application demonstrates clear evidence of error on the part of [it] in its most recent merit decision. The application 

must establish, on its face, that such decision was erroneous.” See W.R., Docket No. 18-1042 (issued February 12, 

2019); see Gladys Mercado, 52 ECAB 255 (2001). 

8 F.N., supra note 5; see Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992).

9 M.E., supra note 2; see Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991).

10 See Leon J. Modrowski, supra note 6; Jesus D. Sanchez supra note 6.

11 See Leona N. Travis, supra note 9.
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clear procedural error, but 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.12

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.13

ANALYSIS

The Board finds that OWCP properly denied appellant’s request of reconsideration as it 

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

OWCP received appellant’s request for reconsideration on September 16, 2019, which was 

more than one year after OWCP’s September 13, 2018 merit decision, which had denied 

modification of the prior decision dated April 16, 2018. The Board thus finds that appellant’s 

request for reconsideration was untimely filed. As appellant’s request was untimely filed, he must 

demonstrate clear evidence of error on the part of OWCP.14

The Board further finds that appellant has not demonstrated clear evidence of error. The 

underlying issue is whether OWCP properly denied his occupational disease claim because the 

evidence of record was insufficient to establish that his left arm condition was causally related to 

the accepted factors of his federal employment. The Board finds that the arguments and evidence 

submitted by appellant in support of his request for reconsideration did not raise a substantial 

question as to the correctness of the denial of his claim.

In support of his untimely request for reconsideration, appellant submitted a statement 

dated September 9, 2019, asserting that he developed a left arm condition due to carrying a mail 

satchel while in the performance of duty. The Board finds that his narrative statement merely 

reiterates the arguments previously of record. Appellant also submitted a medical report from

Dr. Levine dated November 20, 2018. This evidence is duplicative of evidence previously 

considered by OWCP on June 13, 2019 and found insufficient. Appellant did not otherwise 

explain how the resubmission of this evidence raised a substantial question regarding the 

correctness of OWCP’s September 13, 2018 decision. 

The Board has held that the term clear evidence of error is intended to represent a difficult 

standard. None of the evidence submitted demonstrates on its face that OWCP committed an error 

in denying appellant’s claim for an occupational disease in its September 13, 2018 decision. The 

 

12 W.K., Docket No. 18-1260 (issued February 5, 2019); Leon D. Faidley, Jr., supra note 5.

13 See George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 

41 ECAB 458 (1990).

14 20 C.F.R. § 10.607(b).
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Board thus finds that the evidence and arguments submitted on reconsideration do not demonstrate 

clear evidence of error on the part of OWCP in its September 13, 2018 merit decision.15

On appeal appellant asserts that he timely filed his reconsideration request and had a 

certified return receipt proving that his reconsideration was received and signed for on 

September 13, 2019. However, as the Board found and explained above, appellant’s request for 

reconsideration was untimely filed. Appellant also asserts that he submitted sufficient evidence to 

support that he developed a left arm condition causally related to factors of his employment. The 

Board notes that it does not have jurisdiction over the merits of his claim. 

CONCLUSION

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

merits of his claim as it was untimely filed and failed to demonstrate clear evidence of error.

ORDER

IT IS HEREBY ORDERED THAT the October 30, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 9, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

15 W.R., supra note 7.