United States Department of Labor

Employees’ Compensation Appeals Board

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B.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Detroit, MI, Employer

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Docket No. 19-0907

Issued: March 30, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On March 26, 2019 appellant filed a timely appeal from an October 17, 2018 decision of 

the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards 

docketed the appeal as No. 19-0907.

On February 17, 2016 appellant, then a 52-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that she aggravated her lumbosacral spine due to factors of 

her federal employment.

1

 She attributed her condition to having walked on uneven and shifting 

surfaces. On the reverse side of the claim form the employing establishment indicated that 

appellant stopped work on August 20, 2015 and returned to work on February 6, 2016.

By decision dated May 4, 2016, OWCP denied appellant’s occupational disease claim on 

the medical component of fact of injury, as it found the medical evidence of record lacked a valid, 

compensable diagnosis. It concluded, therefore, that the requirements had not been met to 

establish an injury as defined by FECA.

 

1 Appellant noted that she had a history of back problems dating back to a June 20, 2013 injury under OWCP File 

No. xxxxxx083, which was accepted for lumbar strain.
2

On November 15, 2016 appellant filed a request for reconsideration of the May 4, 2016 

decision. By decision dated November 23, 2016, OWCP denied reconsideration, finding that

appellant had not submitted additional evidence or argument in support of her claim.

On May 1, 2017 appellant filed a request for reconsideration of the May 4, 2016 decision. 

With her request, she included a November 3, 2016 narrative report from Dr. Jian Zu, a Boardcertified family practitioner, which included a diagnosis of spinal osteoarthritis. Dr. Zu opined

that her low back pain, which was initially due to a lumbar strain and compounded by flare-ups of 

spinal osteoarthritis, resulted from or was exacerbated by an on-the-job injury in 2013 and by 

prolonged walks on pulverized sidewalks over the course of 30 years. 

By decision dated July 6, 2017, OWCP modified its prior decision, finding that appellant 

had established fact of injury. It also found that Dr. Zu’s November 3, 2016 report was insufficient 

to establish causal relationship between appellant’s diagnosed condition and the accepted factors 

of her federal employment. Thus, OWCP denied her occupational disease claim as she had not 

established causal relationship.

On July 6, 2018 appellant filed a request for reconsideration.

In a July 9, 2018 note, Dr. Zu diagnosed spinal osteoarthritis and lumbar disc protrusion 

with nerve impingement and noted that her medical condition flared-up intermittently when she 

stood or walked more than 20 minutes at a time, which caused severe pain radiating down her right 

lower extremity.

By decision dated October 17, 2018, OWCP denied appellant’s July 6, 2018 

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

of error.

The Board finds that this case is not in posture for a decision.2

The last merit decision of record was OWCP’s July 6, 2017 decision. As appellant’s

reconsideration request was received on July 6, 2018, within one year of the July 6, 2017 decision, 

it was timely filed. It is well established that when the date of the reconsideration request is exactly 

one year after the date of OWCP’s decision, it is timely under 20 C.F.R. § 10.607(a).3 Therefore, 

OWCP should have applied the standard applicable to a timely reconsideration request as set forth 

in 20 C.F.R. § 10.606(b)(3) rather than the more stringent clear evidence of error standard for an 

untimely request for reconsideration set forth in 20 C.F.R. § 10.607(a). Because OWCP

erroneously reviewed the evidence submitted in support of appellant’s reconsideration request 

under the clear evidence of error standard, the Board will remand the case for review of the newly 

submitted evidence under the proper standard of review for a timely reconsideration request.4

 

2

J.H., Docket No. 18-1367 (issued July 17, 2019); see K.K., Docket No. 16-1187 (issued February 7, 2017); E.B., 

Docket No. 16-0746 (issued June 1, 2016).

3 R.M., Docket No. 17-0473 (issued June 6, 2017).

4

J.H., supra note 2; E.S., Docket No. 17-0698 (issued July 14, 2017).
3

Thus, the Board finds that the case shall be remanded for proper adjudication and 

application of the appropriate standard of review, to be followed by an appropriate decision.5

IT IS HEREBY ORDERED THAT the October 17, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action 

consistent with this order of the Board.

Issued: March 30, 2020

Washington, DC

Christopher J. Godfrey, Deputy 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

 

5

J.H., supra note 2; W.R., Docket No. 16-0098 (issued May 26, 2016).