United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

U.S. POSTAL SERVICE, BIRMINGHAM POST 

OFFICE ANNEX, Birmingham, AL, Employer

__________________________________________

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Docket No. 19-1166

Issued: October 16, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 29, 2019 appellant filed a timely appeal from a November 27, 2018 nonmerit 

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

has elapsed from OWCP’s last merit decision, dated July 19, 2017, 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 Appellant timely requested oral argument before the Board. By order dated October 6, 2020, the Board exercised 

its discretion and denied the request as the matter could be adequately addressed based on a review of the case record.

Order Denying Oral Argument, Docket No. 19-1166 (issued October 6, 2020).

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 as it 

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

FACTUAL HISTORY

On February 6, 2003 appellant, then a 34-year-old mail processing clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on that date she injured her neck and both shoulders cutting 

open flats while in the performance of duty. She stopped work on February 6, 2003 and returned 

to her usual employment, a permanent modified position, on April 14, 2003. OWCP accepted the 

claim for bilateral shoulder strains.4

Appellant retired from the employing establishment effective March 3, 2008.

On April 3, 2015 appellant filed a notice of recurrence (Form CA-2a) for medical treatment 

causally related to her February 6, 2003 employment injury.

In a June 23, 2015 development letter, OWCP advised appellant that the medical evidence 

of record was insufficient to establish her recurrence claim. It provided her with a questionnaire 

and requested that she submit rationalized medical evidence to support her claim. OWCP afforded 

appellant 30 days to submit the requested evidence. No additional evidence was received.

By decision dated September 14, 2015, OWCP denied appellant’s recurrence claim. It 

noted that it had last received medical evidence in 2005.

On October 3, 2015 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review. A telephonic hearing was held on May 23, 2016.

By decision dated July 26, 2016, OWCP’s hearing representative affirmed the 

September 14, 2015 decision. He found that the medical evidence of record failed to establish the 

recurrence claim. 

On May 23, 2017 appellant, through her then-counsel, requested reconsideration. He 

further requested that OWCP update its records to reflect his new address. 

By decision dated July 19, 2017, OWCP denied modification of its July 26, 2016 decision. 

It noted that the record was devoid of medical evidence from 2005 until 2014. OWCP sent a copy 

of the decision to appellant’s then-counsel at his former address and to appellant at her address of 

record.5

In letters dated September 5 and October 6, 2017, appellant’s then-counsel requested the 

status of the May 23, 2017 reconsideration request. On October 12 and 30, 2017 he requested that 

OWCP update his address and asserted that neither he nor appellant had received a copy of the 

 

4 OWCP had previously accepted appellant’s 1999 occupational disease claim for right shoulder strain and 

synovitis, assigned OWCP File No. xxxxxx378. This claim has not been administratively combined with the present 

claim.

5 There is no indication of record that the decision was returned as undeliverable to either person. 
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July19, 2017 decision. OWCP provided appellant’s then-counsel with a copy of the case record 

on December 7, 2017. 

On November 15, 2018 appellant, on the appeal request form that had accompanied 

OWCP’s July 19, 2017 decision, indicated that she was requesting reconsideration.

By decision dated November 27, 2018, OWCP denied appellant’s request for 

reconsideration, finding that it was untimely 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.6 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.7 Timeliness is determined by the document receipt date (i.e.,

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).8 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.9

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.10 Its 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, if the 

claimant’s reconsideration request demonstrates “clear evidence of error” on the part of OWCP.11 

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

on the prior evidence of record.12

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

issue which was decided by OWCP.13 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 not only be of sufficient probative value to create a conflict 

 

6 5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019).

7 20 C.F.R. § 10.607(a).

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

9 G.G., Docket No. 18-1072 (issued January 7, 2019); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

10 See 20 C.F.R. § 10.607(b); L.A., Docket No. 19-0471 (issued October 29, 2019).

11 L.C., Docket No. 18-1407 (issued February 14, 2019); see also 20 C.F.R. § 10.607(b); supra note 8 at Chapter 

2.1602.5 (February 2016).

12 J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

13 S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 8 at Chapter 2.1602.5(a) (February 2016).
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in medical opinion or establish a 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.14

ANALYSIS

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

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

OWCP’s regulations15 and procedures16 establish a one-year time limitation for requesting 

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

reconsideration within one year also accompanies any subsequent merit decision on the issues.17 

The most recent merit decision was OWCP’s July 19, 2017 decision.

18

 As appellant’s request for 

reconsideration was not received until November 15, 2018, more than one year after the issuance 

of OWCP’s July 19, 2017 merit decision, it was untimely filed. Consequently, she must 

demonstrate clear evidence of error by OWCP in its July 19, 2017 decision.19

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

that was decided by OWCP.20 The evidence must be positive, precise, and explicit and it must be 

apparent on its face that OWCP committed an error.21 On reconsideration, appellant failed to 

submit evidence or raise an argument relevant to the issue of whether she sustained a recurrence 

of a medical condition or disability causally related to her February 6, 2003 employment injury.22 

Accordingly, OWCP properly found that she failed to demonstrate clear evidence of error.23

On appeal appellant maintains that she had already had shoulder impingement at the time 

of her bilateral shoulder strains. She describes her difficulty finding a physician willing to treat 

her due to the involvement of workers’ compensation and contends that she had tried for years to 

reopen her claim. However, as noted, the Board lacks jurisdiction to review the merits of this 

 

14 J.W., supra note 12.

15 20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); Alberta Dukes, 56 ECAB 

247 (2005).

16 Supra note 8 at Chapter 2.1602.4 (February 2016).

17 J.W., supra note 12; Robert F. Stone, 57 ECAB 292 (2005).

18 See M.N, Docket No. 15-0758 (issued July 6, 2015) (the Board held that the timeliness calculation for a request 

for reconsideration runs from the date that OWCP first issued its final merit decision unless OWCP specifically 

reissues the decision anew.) 

19 20 C.F.R. § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

20 J.W., supra note 12.

21 Id.

22 J.B., Docket No. 18-1704 (issued April 8, 2019).

23 Id.
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case.

24

 As set forth above, OWCP properly found that appellant’s untimely request for 

reconsideration failed to demonstrate clear evidence of error.25 

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the November 27, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 16, 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

 

24 20 C.F.R. §§ 501.2(c) and 501.3; see also B.H., Docket No. 19-0169 (issued June 24, 2019).

25 See J.D., Docket No. 18-1765 (issued June 11, 2019).