United States Department of Labor

Employees’ Compensation Appeals Board

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E.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

City of Industry, CA, Employer

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Docket No. 19-0859

Issued: December 10, 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

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 14, 2019 appellant filed a timely appeal from an October 9, 2018 nonmerit 

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

have elapsed since the last merit decision, dated July 19, 2017, 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the October 9, 2018 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 of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On March 25, 2017 appellant, then a 54-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his right hand and bicep that day when he was struck 

by an over-the-road container (OTR) while in the performance of duty. He did not stop work. 

In a supplemental statement dated March 25, 2017, appellant related that a coworker, G.N., 

was moving the OTR when it struck him. In a statement of even date, G.N. noted that he had not 

struck appellant with an OTR, as appellant alleged. In a separate witness statement of even date, 

A.B., indicated that G.N. was “nowhere near” appellant at the time his elbow was struck by the 

OTR.

In a series of reports dated March 25, 2017, Dr. Brent Harris, an osteopathic physician 

specializing in family practice, noted that appellant was treated on that day after he was struck by 

an OTR on the right hand, elbow, and back. He diagnosed right elbow contusion.

In a letter dated March 28, 2017, the employing establishment challenged appellant’s 

claim. It referenced the witness statements of record and contended that appellant had not 

established fact of injury based on the discrepancy of witness accounts, and therefore his claim 

should be denied.

OWCP received a March 30, 2017 magnetic resonance imaging (MRI) scan of appellant’s 

right elbow, which was interpreted by Dr. Vikram Hatti, Board-certified in diagnostic radiology, 

as demonstrating an osteochondral injury of the radial head, subcutaneous soft tissue edema 

superficial to the left cranial process, and distal attachment of the triceps tendon suggestive of 

contusion or inflammation.

In a development letter dated April 12, 2017, OWCP informed appellant that the evidence 

of record was insufficient to establish his claim. It advised him of the type of factual and medical 

evidence necessary to support his claim and provided a questionnaire for his completion. OWCP 

afforded appellant 30 days to submit the necessary evidence.

In his responses to the questionnaire, dated April 21, 2017, appellant noted that he was

working in the dispatch area and while hooking up a “web all-purpose container” he was struck in 

the arm by an OTR. He indicated that he recognized G.N. and called out to him, but G.N. ignored 

him and walked away. Appellant further related that A.B. witnessed the event and asked what 

happened.

By decision dated May 22, 2017, OWCP denied appellant’s claim finding that there were 

inconsistencies in the evidence which cast doubt as to whether the incident occurred as alleged.

On July 6, 2017 appellant requested reconsideration of OWCP’s May 22, 2017 decision. 

He submitted additional evidence along with his request.
3

In a statement dated July 6, 2017, appellant indicated that another coworker, A.J. witnessed 

the event. In a witness statement dated June 22, 2017, A.J. indicated that she witnessed appellant 

step down off his mule to hook up a piece of equipment. She related that appellant then injured 

his arm, but she did not specify how he injured it.

By decision dated July 19, 2017, OWCP denied modification of the May 22, 2017 decision. 

Following its July 19, 2017 decision, OWCP received duplicative medical reports 

previously of record. 

On July 23, 2018 OWCP received appellant’s request for reconsideration dated 

July 17, 2018. With his request for reconsideration appellant submitted a substantially similar 

witness statement from A.B., wherein she reiterated the accounts as noted in her June 22, 2017 

statement, with no additional information.

By decision dated October 9, 2018, OWCP denied appellant’s request for reconsideration 

without reviewing the merits of his claim. 

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 Timeliness is determined by the document receipt date of 

the request for reconsideration as indicated by the received date in the integrated Federal 

Employees’ Compensation System (iFECS).5 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.6 OWCP may not deny a reconsideration request solely 

because it was untimely filed. When a claimant’s request for reconsideration is untimely filed, it 

must nevertheless undertake a limited review to determine whether it demonstrates clear evidence 

of error.7 If an application demonstrates clear evidence of error, OWCP will reopen the case for 

merit review.8

 

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 2.1602.4(b) (February 2016).

6 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).

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

499, 501-02 (1990).

8 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 5 at Chapter 2.1602.5 (February 2016).
4

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.9

ANALYSIS

The Board finds that this case is not in posture for decision. 

The most recent merit decision of OWCP was the July 19, 2017 decision. One year from 

July 19, 2017 elapsed on July 19, 2018. As OWCP received appellant’s reconsideration request 

on July 23, 2018, more than one year after the July 19, 2017 decision, the request was untimely 

filed. 

The proper standard of review for an untimely reconsideration request is the clear evidence 

of error standard. In denying appellant’s reconsideration request, OWCP applied the standard of 

review for timely requests for reconsideration.10 As OWCP applied the incorrect standard of 

review to the untimely request for reconsideration, the Board will set aside OWCP’s October 9, 

2018 decision and remand the case for proper review under the clear evidence of error standard as 

required by regulations.11

CONCLUSION

The Board finds that this case is not in posture for decision. 

 

9

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

10 See L.W., Docket No. 16-1202 (issued January 25, 2018); H.L., Docket No. 13-2077 (issued March 20, 2014).

11 See 20 C.F.R. § 10.607(b); see also J.D., Docket No. 18-0066 (issued May 13, 2019). 
5

ORDER

IT IS HEREBY ORDERED THAT the October 9, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and this case is remanded for further action 

consistent with this decision of the Board. 

Issued: December 10, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board