United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Melville, NY, Employer

__________________________________________

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Docket No. 20-0868

Issued: April 28, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On March 10, 2020 appellant filed a timely appeal from a September 12, 2019 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit 

decision was a Board decision dated September 4, 2018, which became final after 30 days of 

issuance and is not subject to further review.1 As there is no merit decision by OWCP issued 

within 180 days of 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 

the case.

ISSUE

The issue is whether OWCP properly denied appellant’s September 10, 2019 request for 

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

 

1 20 C.F.R. § 501.6(d); see P.S., Docket No. 18-0718 (issued October 26, 2018); T.B., Docket No. 15-0001 (issued 

July 1, 2015); C.M., Docket No. 15-0471 (issued April 27, 2015); D.A., Docket No. 08-1217 (issued October 6, 2008).

2 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth 

below.

On January 21, 2017 appellant, then a 52-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on January 20, 2017 she strained her back when she separated mail out 

of postal equipment while in the performance of duty. She stopped work on January 22, 2017 and 

returned on January 24, 2017.

By decision dated March 10, 2017, OWCP accepted that the January 20, 2017 incident 

occurred, as alleged, but denied appellant’s claim because the medical evidence of record failed to 

contain a medical diagnosis causally related to the accepted incident. Thus, it found that she had 

not established the medical component of fact of injury.

On March 29, 2017 appellant requested a hearing before a representative of OWCP’s 

Branch of Hearings and Review which was held on July 13, 2017. She submitted additional 

medical evidence. By decision dated August 23, 2017, the hearing representative affirmed the 

March 10, 2017 decision.

Appellant appealed to the Board. By decision dated September 4, 2018, the Board affirmed 

the August 23, 2017 decision, finding that the medical evidence of record was insufficient to 

establish a medical diagnosis causally related to the accepted January 20, 2017 employment 

incident.

On September 10, 2019 appellant requested reconsideration.4

Appellant submitted a January 21, 2017 lumbar spine x-ray examination report, a March 7, 

2017 report cosigned by Dr. Melina J. Khwaja, a Board-certified emergency medicine physician,

and an August 21, 2019 letter from a physician assistant.

By decision dated September 12, 2019, OWCP denied appellant’s reconsideration request, 

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

 

3 Docket No. 18-0709 (issued September 4, 2018).

4 Although appellant claimed to be filing a request for reconsideration from the Board’s September 4, 2018 decision, 

OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject 

matter appealed and such decisions and orders are not subject to review, except by the Board. 20 C.F.R. § 501.6(d). 

Although the September 4, 2018 Board decision was the last merit decision, the hearing representative’s August 23, 

2017 decision is the appropriate subject of possible modification by OWCP.
3

LEGAL PRECEDENT

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further 

merit review.5 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.6 Timeliness is determined by the document receipt date (i.e., 

the received date in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).7 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.8

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

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

decision was in error.9 OWCP’s procedures provide that it 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 demonstrates “clear evidence of error” on the part of 

OWCP.10 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.11

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

issue which was decided by OWCP.12 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error. Evidence which 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 merely to 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.13

 

5 5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

6 20 C.F.R. § 10.607(a).

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

8 G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. 

Faidley, Jr., 41 ECAB 104 (1989).

9 See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB 

499 (1990).

10 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See 

also 20 C.F.R. § 10.607(b); supra note 7 at Chapter 2.1602.5 (February 2016).

11 J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

12 S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 7 at Chapter 2.1602.5(a) (February 2016).

13 C.M., Docket No. 19-1211 (issued August 5, 2020).
4

OWCP’s procedures note that the term clear evidence of error is intended to represent a 

difficult standard. The claimant must present evidence which on its face demonstrates 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.14 The Board makes an independent determination of whether a claimant has demonstrated 

clear evidence of error on the part of OWCP.15

ANALYSIS

The Board finds that OWCP properly determined that appellant’s September 10, 2019 

request for reconsideration was untimely filed.

OWCP’s regulations16 and procedures17 establish a one-year time limit for requesting 

reconsideration, which begins on the date of the last merit decision issued in the case. A right to 

reconsideration within one year also accompanies any subsequent merit decision on the issues.18 

The most recent merit decision was the Board’s September 4, 2018 decision. As appellant’s 

request for reconsideration was received on September 10, 2019, more than one year after the 

September 4, 2018 merit decision, the Board finds that it was untimely filed. Consequently, 

appellant must demonstrate clear evidence of error on the part of OWCP in its August 23, 2017 

decision.19

The Board further finds, however, that the case is not in posture for decision as to whether 

appellant’s September 10, 2019 reconsideration request demonstrated clear evidence of error.

OWCP summarily denied appellant’s request for reconsideration without complying with 

the review requirements of FECA and its implementing regulations.20 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.21 Its regulations at 20 C.F.R. § 10.126 provide that the decision of the 

Director of OWCP shall contain findings of fact and a statement of reasons.22 As well, OWCP’s 

 

14 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 7 at Chapter 2.1602.5(a) (February 2016).

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

16 20 C.F.R. § 10.607(a); see J.W., Docket No. 18-0703 (issued November 14, 2018); Alberta Dukes, 56 ECAB 

247 (2005).

17 Supra note 7 at Chapter 2.1602.4 (February 2016); Veletta C. Coleman, 48 ECAB 367, 370 (1997).

18 20 C.F.R. § 10.607(b); see A.M., Docket No. 20-0143 (issued October 28, 2020); Debra McDavid, 57 ECAB 

149 (2005).

19 Id. at § 10.607(b); see M.W., Docket No. 17-0892 (issued May 21, 2018); see S.M., Docket No. 16-0270 (issued 

April 26, 2016).

20 T.P., Docket No. 19-1533 (issued April 30, 2020); see also 20 C.F.R. § 10.607.

21 5 U.S.C. § 8124(a).

22 20 C.F.R. § 10.126.
5

procedures provide that the reasoning behind OWCP’s evaluation should be clear enough for the 

reader to understand the precise defect of the claim and the kind of evidence which would 

overcome it.23

In denying appellant’s untimely reconsideration request, OWCP failed to analyze whether 

it was sufficient to demonstrate clear evidence of error. The September 12, 2019 decision simply 

noted: “we did consider your request under 20 C.F.R. § 10.607.” However, OWCP did not address 

appellant’s statement in her reconsideration request letter. Furthermore, it provided no discussion 

relative to the medical evidence submitted.24

The Board finds that OWCP failed to properly explain the findings with respect to the issue 

presented so that appellant could understand the basis for the decision, i.e., whether she had 

demonstrated clear evidence that OWCP’s last merit decision was incorrect.25 The Board will 

therefore set aside OWCP’s September 12, 2019 decision and remand the case for findings of fact 

and a statement of reasons, to be followed by an appropriate decision on appellant’s untimely 

reconsideration request. 

CONCLUSION

The Board finds that OWCP properly determined that appellant’s September 10, 2019 

request for reconsideration was untimely filed. However, the Board further finds that the case is 

not in posture for decision with regard to whether the untimely reconsideration request 

demonstrates clear evidence of error.

 

23 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

24 See Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); R.T., Docket No. 19-0604 (issued 

September 13, 2019); R.C., Docket No. 16-0563 (issued May 4, 2016).

25 OWCP 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 demonstrates 

clear evidence of error on the part of OWCP. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, 

Chapter 2.1602.5(a) (February 2016).
6

ORDER

IT IS HEREBY ORDERED THAT the September 12, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded 

for action consistent with this decision of the Board.

Issued: April 28, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board