United States Department of Labor

Employees’ Compensation Appeals Board

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W.K., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Wayne, PA, Employer

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Docket No. 18-1260

Issued: February 5, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 4, 2018 appellant filed a timely appeal from a December 7, 2017 nonmerit decision 

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

the last merit decision dated September 14, 2016, 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 to review the merits of this case.

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 September 23, 1997 appellant, then a 49-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that harassment and unfair discipline at work caused an 

 

1 5 U.S.C. § 8101 et seq.
2

emotional condition. Following initial denial of the claim, OWCP accepted that appellant’s 

allegation that he was unfairly disciplined constituted a compensable employment factor, and on 

April 30, 1999 it accepted the claim for adjustment disorder with mixed anxiety and depressed 

mood. It paid him wage-loss compensation from September 15, 1999 to December 31, 2003. 

In correspondence dated April 24, 2015, appellant questioned why authorization for a 

prescribed medication had been denied. He attached an October 1, 2013 report in which

Dr. Stephan C. Mann, a Board-certified psychiatrist, noted that appellant had been under his care 

since November 6, 2007 and that his original diagnosis of adjustment disorder with mixed anxiety 

and depressed mood had matured into major depressive disorder, recurrent, severe. Dr. Mann 

indicated that appellant also saw a licensed social worker on a weekly basis for psychotherapy and

that he was treating appellant with medication.

By letter dated May 7, 2015, OWCP noted that appellant’s claim had not been accepted for 

major depression. It advised that he should provide a medical report from his treating psychiatrist 

that contained a rationalized medical opinion explaining how his current diagnosis of major 

depression was related to the accepted work incident that occurred in 1997. 

On September 3, 2015 appellant responded that Dr. Mann had retired and he had requested 

that his current psychologist be allowed to provide additional information. Nothing further was 

submitted.

By decision dated September 14, 2016, OWCP denied expansion of the acceptance of the 

claim to include major depressive disorder. It noted that the most recent medical evidence,

Dr. Mann’s October 1, 2013 report, did not provide rationale as to how his diagnosis of major 

depressive disorder (recurrent, severe) was causally related to the accepted employment factor.

On September 18, 2017 appellant requested reconsideration maintaining that his current 

depression was a natural progression of the accepted adjustment disorder. He attached copies of 

pages from an unidentified publication regarding adjustment disorders and major depressive 

disorder. 

By decision dated December 7, 2017, OWCP denied appellant’s reconsideration request, 

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, a

request for reconsideration must be received by OWCP within one year of the date of OWCP’s 

decision for which review is sought.2 Timeliness is determined by the document receipt date, as 

indicated by the “received date” in OWCP’s integrated Federal Employees’ Compensation 

 

2 20 C.F.R. § 10.607(a).
3

System.3 The Board has found that the imposition of the one-year limitation does not constitute 

an abuse of discretionary authority granted OWCP under section 8128 of FECA.4

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

a limited review to determine whether it demonstrated clear evidence of error.5 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 

application for review demonstrates clear evidence of error on the part of OWCP.6

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 prima facie shift the 

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

of OWCP’s decision.7

OWCP 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 shows that OWCP made 

an error. 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.8 The Board makes an independent determination of 

whether a claimant has demonstrated clear evidence of error on the part of OWCP.9

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. 

As appellant’s request for reconsideration was received by OWCP on September 18, 2017, 

more than one year after OWCP’s September 14, 2016 decision, the Board finds that his request 

 

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

4 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

6 20 C.F.R. § 10.607(b); supra note 3 at Chapter 2.1602.5(a) (February 2016).

7 M.M., Docket No. 18-0622 (issued October 2, 2018); Robert G. Burns, 57 ECAB 657 (2006).

8 Supra note 3 at Chapter 2.1602.5(a) (February 2016); J.S., Docket No. 16-1240 (issued December 1, 2016).

9 See D.S., Docket No. 17-0407 (issued May 24, 2017).
4

for reconsideration was untimely filed.

10

 Consequently, he must demonstrate clear evidence of 

error by OWCP in its prior merit decision.11

The Board finds that appellant failed to demonstrate clear evidence of error. In his 

reconsideration request, appellant maintained that his diagnosed major depression was a natural 

progression of the accepted adjustment disorder. In support thereof, he submitted information 

from an unidentified publication. The Board has held that excerpts from publications have little 

probative value in resolving medical questions unless a physician shows the applicability of the 

general medical principles discussed in the articles to the specific factual situation at issue in the 

case.12 Appellant has not submitted such a report from a physician.

As the evidence and argument submitted are of insufficient probative value to prima facie

shift the weight in favor of appellant and raise a substantial question as to the correctness of 

OWCP’s September 14, 2016 merit decision, appellant has not established that OWCP committed 

error.13 

Appellant asserts on appeal that due to his accepted emotional condition, he suffers from 

an inability to focus, especially with regard to his FECA claim, which is very distressing. He 

maintains that, therefore, it would be reasonable to find that his reconsideration request was timely. 

While appellant alleged that he was mentally incompetent to timely request reconsideration 

following the September 14, 2016 merit decision, he has not provided medical evidence to support 

a finding of incompetency during the relevant time period. Therefore, appellant has not proven 

incompetence as alleged.14

The Board therefore finds that OWCP properly denied appellant’s untimely request for 

reconsideration.15

CONCLUSION

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.

 

10 20 C.F.R. § 10.607(a).

11 Supra note 7.

12 A.S., Docket No. 18-0376 (issued July 18, 2018); Roger G. Payne, 55 ECAB 535 (2004).

13 P.S., Docket No. 17-1707 (issued February 9, 2018).

14 See E.P., Docket No. 17-1086 (issued October 13, 2017). 

15 20 C.F.R. § 10.607(b); see D.G., 59 ECAB 455 (2008). 
5

ORDER

IT IS HEREBY ORDERED THAT the December 7, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 5, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board