United States Department of Labor

Employees’ Compensation Appeals Board

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G.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Venice, CA, Employer

__________________________________________

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Docket No. 19-1395

Issued: February 6, 2020

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 June 10, 2019 appellant filed a timely appeal from a March 28, 2019 nonmerit decision 

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

from the last merit decision on the issue of recurrence, dated November 29, 2017, 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the March 28, 2019 decision, OWCP received additional evidence. 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.
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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 July 25, 2014 appellant, then a 57-year-old mail carrier, filed an occupational disease 

claim (Form CA-2) alleging that 14 years of casing, sorting, pulling, and delivering mail while in 

the performance of duty caused or aggravated her back condition. She noted that she first realized 

her condition and its relation to factors of her federal employment on June 27, 2014. OWCP 

accepted the claim for bilateral lumbar radiculopathy and lumbar spondylolisthesis. Appellant 

worked in a full-time modified capacity. On April 11, 2017 she began working reduced hours, 

based on the April 10, 2017 recommendation of Dr. Christopher P. DeCarlo, a physiatrist. 

On April 17 and 30, 2017 appellant filed claims for compensation (Form CA-7) for 

disability for the period April 1, 2017 and continuing. 

OWCP received a May 12, 2017 report from Dr. DeCarlo and a referral slip for a functional 

capacity evaluation (FCE) of appellant’s lumbar spine condition. In the May 12, 2017 report,

Dr. DeCarlo indicated that the reduction of her work hours was due to her continuing complaint 

of back pain at the end of her workday. 

By decision dated June 15, 2017, OWCP denied appellant’s recurrence claim, finding that

the evidence of record was insufficient to establish that she was disabled due to a material change 

or worsening of her accepted employment-related conditions. 

On September 1, 2017 appellant requested reconsideration. In support she submitted an 

August 16, 2017 report from Dr. DeCarlo and a June 29, 2017 FCE report of a diagnosis of 

unspecified sprain of the right shoulder joint. Dr. DeCarlo indicated that the FCE supported that 

appellant could only work four hours per workday. 

By decision dated November 29, 2017, OWCP denied modification of its June 15, 2017 

decision, finding that Dr. DeCarlo’s report did not establish that appellant experienced a return or 

an increase in disability due to a change or worsening of her accepted employment-related 

conditions. It also indicated that the FCE, which was for testing of a diagnosis of unspecified 

sprain of the right shoulder joint, was of little probative value. 

On March 2, 2018 appellant requested reconsideration, directing OWCP’s attention to an 

attached copy of the FCE, which she noted was for her lower extremities. A copy of the FCE 

report was not received. OWCP also received a December 19, 2017 report from Dr. DeCarlo. 

By decision dated March 9, 2018, OWCP denied reconsideration of the merits of the claim, 

finding that the evidence submitted was cumulative to evidence or documentation already of 

record. 

OWCP subsequently received additional reports from Dr. DeCarlo dated May 25, July 24, 

and October 24, 2018; a previously-submitted June 29, 2017 FCE for the diagnosis of 
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radiculopathy -- lumbosacral region and spondylosis without myelopathy or radiculopathy --

lumbosacral region; a March 3, 2018 magnetic resonance imaging scan of the lumbar spine; a 

March 21, 2018 electromyogram and nerve conduction velocity study; March 2 and April 13, 2018 

reports and a March 2, 2018 duty status report (Form CA-17) from Dr. Omar A. Mora Colon, a 

physiatrist; and evidence pertaining to appellant’s request for back surgery. 

On February 12, 2019 appellant again requested reconsideration of its November 29, 2017 

decision and submitted additional evidence. 

In a February 1, 2019 report, Dr. Judith Kraft, a Board-certified family practitioner,

indicated that sufficient medical evidence was provided to support that appellant had a return or 

increase of disability due to a change or worsening of her accepted employment-related condition. 

She summarized Dr. DeCarlo’s reports of October 11, 2016 and April 10, 2017 and asserted 

OWCP erred as the reports contained objective findings other than pain. Specifically, Dr. Kraft 

noted that on October 11, 2016 appellant was able to squat about half way before eliciting increase 

pain of the low back, but on April 10, 2017 she was not able to squat even a third of the way 

without eliciting pain. She also noted that on October 11, 2016 appellant was able to heel-toe walk 

without pain over the calf; but on April 10, 2017, she had “slight but of problems” with heel-toe 

walking. Dr. Kraft also contended that OWCP erred in stating that the FCE on June 29, 2017 was 

for the upper extremities. 

In Form CA-17’s dated December 21, 2018 and February 1, 2019, Dr. Kraft noted “no 

satchel, no pushcart, bundle by bundle, [and] no overtime” per FCE June 29, 2014. 

By decision dated March 28, 2019, OWCP denied appellant’s February 12, 2019 

reconsideration request, 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.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 application for review is untimely filed, it must nevertheless undertake a limited 

 

3 5 U.S.C. § 8128(a).

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 E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).
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review to determine whether it demonstrates clear evidence of error.7 If an application 

demonstrates clear evidence of error, OWCP 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 prima facie 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

Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact 

and make an award for or against payment of compensation.10 Section 10.126 of Title 20 of the 

Code of Federal Regulations provides that a decision shall contain findings of fact and a statement 

of reasons.11

ANALYSIS

The Board finds that OWCP properly determined that appellant’s February 8, 2019 request 

for reconsideration was untimely filed. 

The most recent merit decision regarding the denial of appellant’s recurrence claim was 

OWCP’s November 29, 2017 decision. As her request for reconsideration was not received by 

OWCP until February 12, 2019, more than one year after the November 29, 2017 decision, 

pursuant to 20 C.F.R. § 10.607(a), her request for reconsideration was untimely filed. 

Consequently, appellant must demonstrate clear evidence of error on the part of OWCP in denying 

her claim.12

In the case of William A. Couch,

13 the Board held that, when adjudicating a claim, OWCP 

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

 

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

8 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).

10 5 U.S.C. § 8124(a).

11 20 C.F.R. §10.126.

12 Id. at § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

13 41 ECAB 548 (1990); see also J.C., Docket No. 15-1666 (issued October 28, 2015). 
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before the final decision is issued. While OWCP referenced a February 1, 2019 report from

Dr. Kraft in its March 28, 2019 decision, it did not reference a number of additional reports from 

Drs. DeCarlo and Colon, diagnostic studies, or a June 29, 2017 FCE pertaining to appellant’s 

lumbar spine. As the Board’s decisions are final as to the subject matter appealed,14 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.15 

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 March 28, 2019 decision followed by an appropriate 

decision on whether appellant has demonstrated clear evidence of error. 

CONCLUSION

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

reconsideration was untimely filed. However, the case is not in posture for decision with regard 

to whether appellant has demonstrated clear evidence of error. 

 

14 20 C.F.R. § 501.6(d).

15 T.J., Docket No. 14-1854 (issued February 3, 2015); Yvette N. Davis, 55 ECAB 475 (2004).
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ORDER

IT IS HEREBY ORDERED THAT the March 28, 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: February 6, 2020

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