United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Knoxville, TN, Employer

__________________________________________

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Docket No. 18-1255

Issued: October 17, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On June 5, 2018 appellant filed a timely appeal from a February 2, 2018 nonmerit decision 

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

from OWCP’s last merit decision, dated December 17, 1998, 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 over the merits of this case.3

 

1 Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). By order dated April1, 2019, the Board exercised its discretion and denied the request as appellant’s 

arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the 

record. Order Denying Request for Oral Argument, Docket No. 18-1255 (issued April1, 2019).

2

5 U.S.C. § 8101 et seq.

3 The Board notes that appellant submitted additional evidence on appeal. 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.
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 May 21, 1997 appellant, then a 45-year-old clerk, filed an occupational disease claim 

(Form CA-2) alleging that she sustained an injury to her left hip on or prior to July 12, 1994 due 

to factors of her federal employment, which required continuous standing and physical exertion.

4

 

By decision dated September 5, 1997, OWCP denied her claim finding that the medical evidence 

of record failed to establish causal relationship between appellant’s diagnosed left hip condition 

and the accepted factors of her federal employment. Appellant underwent an unauthorized total 

left hip arthroplasty on September 16, 1997. 

Appellant subsequently requested an oral hearing before a hearing representative of 

OWCP’s Branch of Hearings and Review, which was held on October 26, 1998. 

By decision dated December 17, 1998, OWCP’s hearing representative affirmed the prior 

decision finding the evidence of record insufficient to establish causal relationship between 

appellant’s diagnosed left hip condition and the accepted factors of her federal employment. 

On April 6, 2016 appellant’s congressman inquired to OWCP regarding her claim. 

In a letter dated May 5, 2016, OWCP informed the office of the congressman that it was 

unable to reopen appellant’s case file because it had been destroyed in accordance with its 

procedures, since its records indicated that it was inactive, with no time lost from work and no 

permanent residuals expected. Therefore, in order to process the request, OWCP requested that 

appellant submit all information she had pertaining to her claim, in particular a copy of her original 

CA-2 claim form and medical evidence.

In a June 23, 2016 letter to OWCP, appellant indicated that she had learned that her case 

file had been destroyed. She stated that the employing establishment had a copy of her case file 

and it was enclosed. Appellant also requested reconsideration of the denial of her claim based on 

the additional medical information also attached. 

In a March 21, 2017 letter to the congressman, OWCP indicated that once it had received 

the information needed to recreate appellant’s claim, it would review the evidence, and then take 

appropriate action concerning her request for consideration of additional conditions.

The case record included a letter from appellant, dated May 24, 2002, in which she had 

requested reconsideration of her claim for a left hip condition.

 

4 Appellant had a previously accepted claim for a right hip injury and underwent an authorized right hip arthroplasty 

in 1996. OWCP assigned File No. xxxxxx995. This file is not before the Board on the present appeal.
3

Appellant submitted medical evidence, including diagnostic test reports of her hips dated 

December 12, 21, and 27, 1994 and February 6 and August 5, 1995, as well as progress reports 

dated November 22, 1994 through June 22, 1995 from an orthopedic surgery practice. 

In a May 26, 2017 development letter, OWCP indicated that it had received information to 

recreate appellant’s destroyed case and if she felt that the prior decisions dated September 5, 1997 

and December 17, 1998 denying her claim were in error, she could file a written request for 

reconsideration and provide evidence that the decisions were in error. 

In a letter dated October 20, 2017, and received by OWCP on November 10, 2017 as 

recorded in the integrated Federal Employees’ Compensation System (iFECS), appellant requested 

reconsideration. Her letter contained a narrative statement describing the accepted employment 

factors and reiterating that she had a prior injury which was accepted for a right hip condition and 

surgical treatment. Appellant argued that her avascular necrosis had traveled to the other side and 

started effecting her left hip as well, just as her doctor had suspected. She further reiterated that 

she had her left hip replaced on September 16, 1997 and she had to use her own sick leave hours 

during this recovery time.

By decision dated February 2, 2018, OWCP denied appellant’s request for reconsideration 

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.5 Timeliness is determined by the document receipt date (i.e., 

the “received date” in OWCP’s iFECS.6 The Board has found that the imposition of the one-year 

time limitation does not constitute an abuse of the discretionary authority granted OWCP under 

section 8128(a) of FECA.7

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 

review to determine whether it demonstrates clear evidence of error.8 If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.9

 

5

20 C.F.R. § 10.607(a).

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

OWCP’s procedures were changed effective August 29, 2011. Section 10.607 of the new regulations provides that 

the date of the reconsideration request for timeliness purposes was changed from the date the request was mailed to 

the date the request was received by OWCP. See 20 C.F.R. § 10.607 (2011); see also C.B., Docket No. 13-1732 

(issued January 28, 2014) (where the Board held that for OWCP decisions issued on or after August 29, 2011, the date 

of the application for reconsideration is the “received date” as recorded in iFECS).

7

5 U.S.C. § 8128(a); J.D., Docket No. 18-1765 (issued June 11, 2019); Leon D. Faidley, Jr., 41 ECAB 104, 

111 (1989).

8

20 C.F.R. § 10.607(b); B.C.,Docket No. 18-1496 (issued May 22, 2019).

9 G.G., Docket No. 18-1074 (issued January 7, 2019); see also 20 C.F.R. § 10.607(b); supra note 6 at Chapter 

2.1602.5 (February 2016).
4

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

the issue that was decided by OWCP,10 is positive, precise, and explicit, and is manifest on its face 

that OWCP committed an error.11 The evidence must not only be of sufficient probative value to 

create a conflict in medical opinion or establish a clear procedural error, but must also shift the 

weight of the evidence in favor of the claimant and raise a substantial question as to the correctness 

of OWCP’s decision for which review is sought. Evidence that does not raise a substantial 

question is insufficient to demonstrate clear evidence of error. It is not enough merely to show 

that the evidence could be construed so as to produce a contrary conclusion. A determination of 

whether the claimant has demonstrated clear evidence of error entails a limited review of how the 

evidence submitted with the reconsideration request bears on the evidence previously of record. 12

ANALYSIS

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

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

OWCP’s regulations13 and procedures14 establish a one-year time limitation for requesting 

reconsideration, which begins on the date of the last OWCP merit decision. A right to 

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

15

 

The most recent merit decision was OWCP’s December 17, 1998 decision which denied 

appellant’s occupational disease claim. As appellant’s request for reconsideration was not 

received by OWCP until November 10, 2017, more than one year after the December 17, 1998 

decision, the Board finds that it was untimely filed. Because her request was untimely, appellant

must demonstrate clear evidence of error on the part of OWCP in having denied her occupational 

disease claim.

16

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

part of OWCP in its last merit decision dated December 17, 1998. In support of her request for 

reconsideration, appellant did not submit the type of positive, precise, and explicit evidence which 

manifests on its face that OWCP committed an error in its December 17, 1998 decision.17

OWCP received an October 20, 2017 statement from appellant describing the accepted 

employment factors and her prior accepted right hip injury. She argued that her avascular necrosis

had traveled to the other side and started effecting her left hip. Appellant has not explained how 

 

10 F.N., Docket No. 18-1543 (issued March 6, 2019); Dean D. Beets, 43 ECAB 1153 (1992).

11 Id.

12 Id.

13 20 C.F.R. § 10.607(a); see W.R., Docket No. 19-0438 (issued July 5, 2019).

14 Supra note 6at Chapter 2.1602.4 (February 2016);see W.R., id.

15 20 C.F.R. § 10.607(b); see W.R., supra note 13.

16 The Board notes that a letter of record dated May 24, 2002 where appellant requested reconsideration was not 

received by OWCP in iFECS until April3, 2017, approximately four years after OWCP’s December 17, 1998 

decision, and would have been untimely filed.

17 See R.M., Docket No. 18-1393 (issued February 12, 2019).
5

her statement raises a substantial question regarding the correctness of OWCP’s decision denying 

her claim.

18

 This evidence does not offer an opinion that OWCP’s decision was incorrect and is 

not 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.

19

 Appellant did not provide 

additional medical evidence and the reports appellant submitted on appeal were not of record at 

the time of OWCP’s final decision.

20

 The Board thus finds that appellant’s statement does not 

raise a substantial question as to the correctness of OWCP’s last merit decision.

Clear evidence of error is intended to represent a difficult standard. The Board makes an 

independent determination of whether a claimant has submitted clear evidence of error on the part 

of OWCP.

21

 As appellant has not submitted such evidence, the Board finds that she has not 

demonstrated clear evidence of error.

CONCLUSION

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

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

 

18 See T.S., Docket No. 19-0056 (issued July 1, 2019).

19 Id.

20 Supra note 3.

21 See T.S., supra note 18;see also W.R., supra note 13.
6

ORDER

IT IS HEREBY ORDERED THAT the February 2, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 17, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board