United States Department of Labor

Employees’ Compensation Appeals Board

_________________________________________

E.G., Appellant

and

U.S. POSTAL SERVICE, SAND HILLS POST 

OFFICE, Columbia, SC, Employer

_________________________________________

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Docket No. 20-0974

Issued: February 26, 2021

Appearances: Case Submitted on the Record

Wayne Johnson, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 1, 2020 appellant, through counsel, filed a timely appeal from an October 4, 2019 

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

days has elapsed from the last merit decision dated January 20, 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.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

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

as follows.

On August 27, 2014 appellant, then a 60-year-old rural letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that her hip and back problems were caused by factors of her 

federal employment, including standing to case, pull, and deliver mail and parcels; and entering 

and alighting from a mail truck. She stopped work on June 5, 2014.

In a May 12, 2014 report, Dr. Robert M. Peele, Jr., a Board-certified orthopedic surgeon, 

provided examination findings and diagnosed hip and knee osteoarthritis, medial meniscus 

derangement, hip and knee pain, and tibialis tendinitis.

A July 15, 2014 magnetic resonance imaging scan of appellant’s hips revealed findings of 

mild left hip osteoarthritis, nondisplaced stress fracture of the posterior superior right ischium near 

the ilium junction, right hip endstage osteoarthritic changes with evidence of remote avascular 

necrosis, and degenerative lumbar spine changes.

In an August 11, 2014 report, Dr. Ryan Wetzel, a Board-certified physiatrist, diagnosed 

sciatica, noting that appellant had been given a right S1 transforaminal epidural steroid injection. 

On August 22, 2014 he related that appellant was given an intraarticular right hip injection for hip 

pain.

In an August 18, 2014 report, Dr. Coleman D. Fowble, a Board-certified orthopedic 

surgeon, diagnosed sciatica, and femur head and neck aseptic necrosis. On August 26, 2014

Dr. Fowble again related appellant’s diagnosis of avascular necrosis of the femur head and limited 

appellant to light-duty work.

On August 21, 2014 Dr. Ivan Lamotta, a Board-certified orthopedic surgeon, diagnosed 

sciatica and lumbago, and related that appellant could perform light-duty work with no bending, 

stooping, kneeling, twisting, or lifting over 25 pounds.

By decision dated December 1, 2014, OWCP denied the claim, finding that the medical 

evidence of record was insufficient to establish a causal relationship between the diagnosed 

medical conditions and the accepted employment factors.

 

3 Order Remanding Case, Docket No. 19-0236 (issued August 22, 2019).
3

On January 15, 2015 appellant requested an oral hearing before a representative of

OWCP’s Branch of Hearings and Review. By decision dated February 23, 2015, OWCP denied 

appellant’s untimely request for an oral hearing.

Appellant requested reconsideration on April 14, 2015. In support of her request, she 

submitted a March 9, 2015 report from Dr. Fowble diagnosing right hip avascular necrosis with 

some trochanteric bursitis, hip osteoarthritis, and femur head avascular necrosis.

By decision dated April 29, 2015, OWCP denied appellant’s request for reconsideration of 

the merits of her claim.

On July 1, 2015 appellant again requested reconsideration. In support of her request, she 

submitted an undated and unsigned chiropractic report, which diagnosed severe hip degenerative 

disc disease, lower back and hip pain, hip joint bursitis, lumbar spine and pelvis disuse musculature 

atrophy, lumbar degenerative disc disease, lumbar facet arthrosis, lumbar, sacrum and pelvis 

subluxation, altered gait, antalgic posture, and hip joint fracture and avascular necrosis. The report 

found that the diagnosed conditions had been aggravated by appellant’s employment duties. 

Appellant also submitted an attending physician’s report (Form CA-20) dated June 23, 2015 from

Dr. Fowble. Dr. Fowble diagnosed right hip avascular necrosis, right hip osteoarthritis, and right 

hip bursitis. He also checked a box marked “Yes,” indicating that the diagnosed conditions were 

causally related to appellant’s employment. Dr. Fowble concluded that appellant’s physical 

labor/manual labor aggravated her avascular necrosis.

On September 14, 2015 OWCP referred appellant to Dr. Charles S. Hayes, a Boardcertified orthopedic surgeon, for a second opinion as to whether appellant’s diagnosed right hip, 

right knee, and back conditions had been caused or aggravated by her employment and the extent 

of any work-related disability. In a report dated October 8, 2015, Dr. Hayes, based upon a review 

of the statement of accepted facts (SOAF), medical record, and appellant’s physical examination, 

diagnosed lumbar intervertebral disc degeneration, right femur idiopathic aseptic necrosis, pelvis 

stress fracture, right knee pain, and left knee unilateral primary osteoarthritis. He concluded that 

none of the diagnosed conditions had been caused or aggravated by appellant’s employment, but

rather were due to her morbid obesity, genetic predisposition, and severe deconditioning.

By decision dated December 14, 2015, OWCP denied modification of its December 1, 

2014 decision.

On March 8, 2016 appellant again filed a request for reconsideration. In support of her 

request, she submitted a March 15, 2012 lumbar x-ray interpretation from Dr. Angela M. Larson, 

a chiropractor, diagnosing a L4-5 subluxation. Appellant also submitted a March 3, 2016 Form 

CA-20 from Dr. Fowble diagnosing right hip bursitis, morbid obesity, and right hip avascular 

necrosis. Dr. Fowble again checked a box “Yes.” indicating that the diagnosed conditions were

causally related to appellant’s employment activity. He also related that appellant’s conditions 

were aggravated by job-related repetitive activity, lifting, carrying, pushing, pulling, 

standing/walking, squatting and bending.

By decision dated April 5, 2016, OWCP denied modification of the December 14, 2015 

decision.
4

Appellant again requested reconsideration on November 1, 2016.

In an undated Form CA-20, Dr. Fowble diagnosed right hip avascular necrosis, right hip 

pain, and obesity. He checked a box marked “Yes” to the question of whether the diagnosed 

conditions had been caused or aggravated by appellant’s employment. In support of this 

conclusion, Dr. Fowble explained that the diagnosed conditions had been aggravated by 

appellant’s job-related repetitive activity.

Dr. Lamotta, in a September 6, 2016 report, noted appellant’s complaints, detailed 

examination findings, and reviewed diagnostic tests. He diagnosed morbid obesity, knee and hip 

osteoarthritis, low back, hip, and knee pain, sciatica, hip bursitis, and femur head avascular 

necrosis. In a September 19, 2016 Form CA-20, Dr. Lamotta diagnosed back pain, severe right 

hip osteoarthritis, and morbid obesity. He checked a box marked “Yes” to the question of whether 

the diagnosed conditions had been caused or aggravated by appellant’s employment. Dr. Lamotta 

explained that appellant’s repetitive work activities aggravated the diagnosed conditions and 

referred to the attached September 6, 2016 report.

In a report dated September 14, 2016, Dr. Fowble detailed examination findings, reviewed 

diagnostic tests, and diagnosed morbid obesity, knee and hip osteoarthritis, low back, hip, and knee 

pain, sciatica, hip bursitis, and femur head avascular necrosis.

By decision dated January 20, 2017, OWCP denied modification of its April 5, 2016

decision.

On May 9, 2018 OWCP received appellant’s request for reconsideration dated 

January 20, 2018. No evidence accompanied her request.

By decision dated May 29, 2018, OWCP denied appellant’s request for reconsideration 

finding that she failed to submit medical evidence with her request or raise a new or relevant legal 

argument.

Appellant, through counsel, appealed to the Board on November 9, 2018. By order dated 

August 22, 2019, the Board found that OWCP erroneously applied the standard of review for a 

timely request for reconsideration as set forth at sections 10.605 through 10.607 of its regulations.4

The Board noted that the last merit decision was an OWCP decision dated January 20, 2017. Thus, 

as more than one year had elapsed since the last merit decision to the filing of appellant’s request 

for reconsideration on May 9, 2018, OWCP should have applied the clear evidence of error legal 

standard which is the appropriate standard for cases in which a reconsideration request is untimely 

filed. The Board set aside the May 29, 2019 decision and remanded the case to OWCP. The Board 

directed OWCP to apply the appropriate standard for reviewing an untimely request for 

reconsideration as set forth at 20 C.F.R. § 10.607(a).

OWCP received no further evidence following the Board’s order remanding the case.

 

4

Id. 
5

By decision dated October 4, 2019, OWCP denied appellant’s May 9, 2018 reconsideration 

request, finding that it was untimely filed and failed to demonstrate clear evidence of error of the 

January 20, 2017 decision.

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 Integrated Federal Employees’ Compensation System (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 request for reconsideration solely because it was untimely filed. 

When a request for reconsideration is untimely filed, it must nevertheless undertake a limited 

review to determine whether the request demonstrates clear evidence of error.8 OWCP’s 

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 for reconsideration establishes clear evidence of error on the part of OWCP.9

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 shift the weight of the 

evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s 

decision.10

OWCP’s procedures note and the Board has held that the term “clear evidence of error” is 

intended to represent a difficult standard. The claimant must present evidence that on its face 

shows that OWCP made an error (for example, proof that a schedule award was miscalculated). 

Evidence such as a detailed, well-rationalized medical report that, if submitted before the denial 

 

5 20 C.F.R. § 10.607(a).

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

7 G.L., Docket No. 18-0852 (issued January 14, 2020).

8 20 C.F.R. § 10.607(b); G.B., Docket No. 19-1762 (issued March 10, 2020); R.S., Docket No. 19-0180 (issued 

December 5, 2019).

9

Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.1602.5(a) (February 2016).

10 I.A., Docket No. 19-1910 (issued September 20, 2020); M.P., Docket No. 19-0674 (issued December 16, 2019).
6

was issued, would have created a conflict in medical opinion requiring further development, is not 

clear evidence of error.11 The Board makes an independent determination of whether a claimant 

has demonstrated clear evidence of error on the part of OWCP.

12

ANALYSIS

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

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

Preliminarily, the Board notes that it is unnecessary for the Board to consider the timeliness 

of appellant’s May 9, 2018 reconsideration request as the Board found on prior appeal that 

appellant’s reconsideration was untimely filed. 

Because appellant’s request was untimely filed, she must demonstrate clear evidence of 

error on the part of OWCP in denying her occupational disease claim.

Appellant’s untimely reconsideration request failed to demonstrate that OWCP clearly 

erred in finding that she had not established causal relationship between her diagnosed medical 

conditions and the accepted factors of her federal employment. Following the January 20, 2017 

merit decision, appellant submitted no medical evidence or argument in support of her untimely 

request for reconsideration. The Board finds that she has not submitted any argument or evidence 

that manifests on its face that OWCP committed an error in denying her occupational disease 

claim. Appellant has, therefore, not raised a substantial question as to the correctness of OWCP’s 

decision. Thus, the Board finds that the request failed to demonstrate clear evidence of error.13

On appeal counsel argues that OWCP improperly denied review when appellant submitted 

evidence of causal relationship. As explained above, the Board does not have jurisdiction over the 

merits of the claim and OWCP properly determined appellant’s untimely reconsideration request 

failed to demonstrate clear evidence of error.

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.

 

11 Federal (FECA) Procedure Manual, supra note 9; G.L., supra note 7.

12 I.A., supra note 10; M.P., supra note 10.

13 G.B., supra note 8; M.P., id.
7

ORDER

IT IS HEREBY ORDERED THAT the October 4, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 26, 2021

Washington, DC

Alec J. Koromilas, 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