United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

I.A., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENER/FACILITY, 

Carol Stream, IL, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-1910

Issued: September 29, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

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 September 11, 2019 appellant filed a timely appeal from a July 8, 2019 nonmerit 

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

elapsed from OWCP’s last merit decision, dated June 11, 2018, to the filing of this appeal, pursuant 

to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board lacks jurisdiction over the merits of this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the issuance of the July 8, 2019 decision, OWCP received additional evidence. 

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 February 10, 2018 appellant, then a 62-year-old mail processing clerk, filed an 

occupational disease claim (Form CA-2) alleging that she developed “occupational illnesses” as a 

result of factors of her federal employment which included moving and lifting heavy boxes. She 

noted that she first became aware of her condition on June 30, 2015 and realized its relationship 

to her federal employment on December 23, 2016.

OWCP subsequently received a February 7, 2018 statement from appellant claiming that 

moving and lifting heavy boxes at work had taken a toll on her right knee and caused pain due to 

overuse.

In a December 18, 2017 medical report, Dr. Ankur Chhadia, an attending Board-certified 

orthopedic surgeon, treated appellant for right knee pain and noted a history that appellant had 

worked at the employing establishment for 23 years and during the past 3 years her job duties 

included moving and lifting heavy boxes which had taken a toll on her right knee and caused pain 

due to overuse. He conducted a physical examination, reviewed x-rays, and noted an impression 

of early right knee osteoarthritis, possible left main trunk. Dr. Chhadia advised that appellant 

could perform full-duty work.

In a December 21, 2017 right knee magnetic resonance imaging (MRI) scan report,

Dr. Gregory Goldstein, a diagnostic radiologist, provided impressions of small effusion, discoid 

lateral meniscus, and intact menisci and ligaments.

OWCP, in an April 4, 2018 development letter, informed appellant that the evidence

submitted was insufficient to establish her claim. It advised her of the type of factual and medical 

evidence necessary to establish her claim and provided a questionnaire for her completion to. 

OWCP afforded appellant 30 days to submit the necessary evidence.

OWCP subsequently received an April 25, 2018 letter in which Dr. Chhadia noted that the 

onset of appellant’s symptoms began in June 2015. Dr. Chhadia also noted her various work 

duties, which included twisting, standing, walking, squatting, and bending. He diagnosed right 

knee osteoarthritis with early mild aggravation and right knee discoid lateral meniscus.

Dr. Chhadia opined, “to a reasonable degree of medical certainty,” that the mechanism of loading 

of appellant’s occupational functions, the time course related to these factors, and her history and 

objective findings contributed and temporarily aggravated her right knee early arthritis.

By decision dated June 11, 2018, OWCP denied appellant’s occupational disease claim,

finding that the evidence of record was insufficient to establish the alleged factors of his federal 

employment. As such, it concluded that the requirements had not been met to establish an injury 

as defined by FECA.
3

On June 20, 2018 appellant requested a telephonic oral hearing before a representative of 

OWCP’s Branch of Hearings and Review.

OWCP subsequently received a letter dated May 17, 2018, wherein Dr. Chhadia noted his 

review of diagnostic test results and reported appellant’s right knee symptoms. Dr. Chhadia opined 

that her severe right knee conditions were related to her work duties and aggravated by lifting tubs 

and trays weighing between 5 and 70 pounds, bending, sitting approximately six hours per day, 

five days per week, and standing and walking around in a circle for approximately 30 to 45 minutes

while dispatching. 

On September 11, 2018 OWCP scheduled a telephonic hearing for October 19, 2018 and 

provided appellant with the time, telephone number, and required passcode. Appellant did not 

appear for the scheduled telephonic hearing.

By decision dated October 29, 2018, OWCP found that appellant had failed to appear at 

the oral hearing before an OWCP hearing representative and, thus, had abandoned her request. It 

indicated that she had received written notice of the hearing scheduled for October 19, 2018 30 

days in advance, but she failed to appear or contact the Branch of Hearings and Review either prior 

to or subsequent to the scheduled hearing to explain her absence.

On March 29, 2019 appellant requested reconsideration. In an accompanying letter, she 

stated, “I am requesting a [r]econsideration in regards to my knee injury case.” Appellant

submitted copies of the previously submitted April 25 and May 17, 2018 letters of Dr. Chhadia 

and December 21, 2017 MRI scan report of Dr. Goldstein and contended that this evidence was 

sufficient to establish that her diagnosed right knee conditions were work related. Appellant noted 

that she appeared at the scheduled hearing, but missed it by one hour. 

Appellant also submitted her April 27, 2018 response to OWCP’s development 

questionnaire noting that her work duties involved lifting boxes weighing up to 70 pounds eight 

hours per day, five days per week. She indicated that she had no hobbies or volunteer activities 

outside her federal employment. 

OWCP, by letter dated June 5, 2019, informed appellant that she could not request 

reconsideration of its October 29, 2018 hearing abandonment decision. It noted that the appeal 

rights accompanying that decision only allowed her to appeal to the Board within 180 days of the 

decision date and, “That timeframe has expired.”

In a letter received by OWCP, on June 17, 2019, appellant stated, “I ... request a review 

and consideration of my recently submitted reconsideration request.” She contended that she was 

not given detailed instructions on how to appeal her case. Appellant also contended that she did 

not attend the scheduled oral hearing because she did not know when and where it was held.

By decision dated July 8, 2019, OWCP denied appellant’s request for reconsideration,

finding that it was untimely filed and failed to demonstrate clear evidence of error.
4

LEGAL PRECEDENT

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

merit review.3 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.4 The one-year period for requesting reconsideration begins 

on the date of the original OWCP decision, but the right to reconsideration within one year also 

accompanies any subsequent merit decision on the issues, including any merit decision by the 

Board.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 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 application 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 demonstrates clear evidence of error on the part of OWCP.9

To demonstrate clear evidence of error, the evidence submitted must not only be of 

sufficient probative value to create a conflicting 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.

10

 

The Board notes that clear evidence of error is intended to represent a difficult standard.11 

Evidence that does not raise a substantial question concerning the correctness of OWCP’s decision

is insufficient to demonstrate clear evidence of error.

12

 It is not enough merely to establish that 

 

3 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).

4 20 C.F.R. § 10.607(a).

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

6

Id. at Chapter 2.1602.4(b) (February 2016).

7 See R.L., Docket No. 18-0496 (issued January 9, 2019).

8 See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019).

9

Id. at § 10.607(b); supra note 5 at Chapter 2.1602.5(a) (February 2016).

10 G.G., supra note 8.

11 M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., supra note 7.

12 E.B., Docket No. 18-1091 (issued December 28, 2018).
5

the evidence could be construed so as to produce a contrary conclusion.13 This entails a limited 

review by OWCP of the evidence previously of record and whether the new evidence demonstrates 

clear error on the part of OWCP.14 In this regard, the Board will limit its focus to a review of how 

the newly submitted evidence bears on the prior evidence of record.15 The Board makes an 

independent determination as to whether a claimant has demonstrated clear evidence of error on 

the part of OWCP.16

ANALYSIS

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

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

The last merit decision was OWCP’s June 11, 2018 decision, which denied appellant’s

occupational disease claim. The Board finds that the March 29, 2019 request is a timely 

reconsideration request of OWCP’s June 11, 2018 merit decision denying her occupational disease 

claim for an alleged knee injury. Appellant not only requested reconsideration of her hearing 

abandonment issue, but she also requested “reconsideration” of her “knee injury case.” As 

appellant’s request for reconsideration was received by OWCP on March 29, 2019 within one year 

of the June 11, 2018 merit decision, it was timely filed. 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 it 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.17 

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.18

CONCLUSION

The Board finds that OWCP improperly denied appellant’s request for reconsideration of 

the merits of her claim.

 

13 J.W., Docket No. 18-0703 (issued November 14, 2018).

14 P.L., Docket No. 18-0813 (issued November 20, 2018).

15 A.F., 59 ECAB 714 (2008), D.G., 59 ECAB 455 (2008).

16 W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

17 A.K., Docket No. 20-0003 (issued June 2, 2020); J.H., Docket No. 18-1367 (issued July 17, 2019); E.S., Docket 

No. 17-0698 (issued July 14, 2017).

18 A.K., id.; J.H., id.; W.R., Docket No. 16-0098 (issued May 26, 2016).
6

ORDER

IT IS HEREBY ORDERED THAT the July 8, 2019 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: September 29, 2020

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