United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

St. Louis, MO, Employer

__________________________________________

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Docket No. 20-1658

Issued: April 15, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 September 24, 2020 appellant, through counsel, filed a timely appeal from an 

August 28, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days elapsed from the last merit decision dated January 26, 2018 to the filing of 

this appeal, pursuant to the Federal Employees’ Compensation Act (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the case. 

ISSUE

The issue is whether OWCP properly denied appellant’s August 21, 2020 request for 

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

 

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

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances as set forth 

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

follows.

On August 14, 2017 appellant, then a 59-year-old mail carrier, filed an occupational 

disease claim (Form CA-2) alleging that he developed right carpal tunnel syndrome and right 

cubital tunnel syndrome as a result of factors of his federal employment, including constant lifting 

and carrying of packages weighing up to 10 pounds, pushing and pulling tubs of mail, and sorting 

mail for 10 to 12 hours per day, six days per week. He noted that he first became aware of his 

claimed condition and its relationship to factors of his federal employment on January 5, 2015. 

On the reverse side of the claim form the employing establishment indicated that appellant was 

last exposed to the condition alleged to have caused his condition on August 14, 2017.

By decision dated January 26, 2018, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that the events surrounding the claimed condition 

occurred as alleged. Therefore, it concluded that the requirements had not been met to establish 

an injury as defined by FECA.

On February 16, 2018 appellant requested reconsideration of the January 26, 2018 decision 

and submitted additional evidence in support of his claim.

By decision dated May 16, 2018, OWCP denied appellant’s request for reconsideration, 

finding that the evidence submitted was insufficient to warrant a review of the merits of its 

January 26, 2018 decision.

On August 28, 2018 appellant timely appealed to the Board from the May 16, 2018 OWCP 

nonmerit decision.

By decision dated March 14, 2019, the Board affirmed OWCP’s March 16, 2018 nonmerit 

decision. It found that appellant had not established that OWCP erroneously applied or interpreted 

a specific point of law. The Board further found that he had not advanced a new and relevant legal 

argument or submitted relevant evidence not previously considered by OWCP. Consequently, the 

Board found that OWCP properly denied appellant’s request for reconsideration of the merits of 

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

OWCP subsequently received medical evidence in support of appellant’s claim, which it 

had not previously considered, including a July 3, 2018 narrative report from Dr. Bruce Schlafly, 

an orthopedic hand surgeon, wherein he diagnosed severe right carpal tunnel syndrome and opined 

that appellant’s repetitive work duties as a mail carrier caused his diagnosed condition.

On August 21, 2020 appellant, through counsel, requested reconsideration. 

 

2 Docket No. 18-1660 (issued March 14, 2019).
3

By decision dated August 28, 2020, OWCP denied appellant’s request for reconsideration, 

finding that it was untimely filed and failed to demonstrate clear evidence of error.3

LEGAL PRECEDENT

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

merit review.4 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.5 Timeliness is determined by the document receipt date, i.e., 

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS).6 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.7

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.8 OWCP’s procedures provide that it 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 request for reconsideration demonstrates “clear evidence of error” on the part of 

OWCP.9 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.10

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

issue which was decided by OWCP.11 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 

 

3 OWCP actually referred to the Board’s March 14, 2019 decision. However, OWCP has no jurisdiction to review 

a Board decision. The decisions and orders of the Board are final as to the subject matter appealed and such decisions 

and orders are not subject to review, except by the Board. See 20 C.F.R. § 501.6(d). Appellant had 30 days from the 

date of the Board’s March 14, 2019 decision to file a petition for reconsideration with this Board of its decision. 

Therefore, the proper subject of modification is the January 26, 2018 OWCP merit decision. Id. at § 501.7. See also 

J.D., Docket No. 20-0838 (issued February 24, 2021); C.M., Docket No. 19-1211 (issued August 5, 2020); B.B., 

Docket No. 14-0464 (issued June 4, 2014).

4 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).

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.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).

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

499 (1990).

9 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 6 at Chapter 2.1602.5 (February 2016).

10 J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

11 S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 6 at Chapter 2.1602.5(a) (February 2016).
4

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 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.12

OWCP’s 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 demonstrates that OWCP 

made an error (for example, proof that a schedule award was miscalculated). 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.13 The Board makes an independent determination of whether a claimant has demonstrated 

clear evidence of error on the part of OWCP.14

ANALYSIS

The Board finds that OWCP properly determined that appellant’s August 21, 2020 request 

for reconsideration was untimely filed.

The last merit decision of record was issued on January 26, 2018. As appellant’s request 

for reconsideration was not received by OWCP until August 21, 2020, more than one year after 

the January 26, 2018 merit decision, pursuant to 20 C.F.R. §10.607(a), the Board finds the request 

for reconsideration was untimely filed. Consequently, he must demonstrate clear evidence of error 

by OWCP in denying the claim.15

The Board further finds that OWCP did not make sufficient findings regarding the evidence 

submitted in support of the reconsideration request.16 OWCP denied appellant’s request for 

reconsideration without complying with the review requirements of FECA and its implementing 

regulations.17 Section 8124(a) of FECA provides that OWCP shall determine and make a finding 

of fact and make an award for or against payment of compensation.18 Its regulations at section 

 

12 C.M., Docket No. 19-1211 (issued August 5, 2020).

13 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 6 at Chapter 2.1602.5(a) (February 2016).

14 D.S., Docket No. 17-0407 (issued May 24, 2017).

15 20 C.F.R. § 10.607(b); see R.T., Docket No. 19-0604 (issued September 13, 2019); see Debra McDavid, 57 

ECAB 149 (2005).

16 See Order Remanding Case, J.K., Docket No. 20-0556 (issued August 13, 2020); Order Remanding Case, C.D., 

Docket No. 20-0450 (issued August 13, 2020); Order Remanding Case, T.B., Docket No. 20-0426 (issued 

July 27, 2020).

17 See C.G., Docket No. 20-0051 (issued June 29, 2020); T.P., Docket No. 19-1533 (issued April 30, 2020); see 

also 20 C.F.R. § 10.607(b).

18 5 U.S.C. § 8124(a).
5

10.126 provide that the decision of the Director of OWCP shall contain findings of fact and a 

statement of reasons.19 As well, OWCP’s procedures provide that the reasoning behind OWCP’s 

evaluation should be clear enough for the reader to understand the precise defect of the claim and 

the kind of evidence which would overcome it.20

In denying appellant’s August 21, 2020 reconsideration request, OWCP noted: “Although 

you submitted a medical report from Dr. Schlafly dated 07/03/2018 and it was received on 

02/10/2020, it was received more than one year after the last merit review.” It further included an 

incomplete statement that, “The basis for this decision is,” and then failed to offer any further 

explanation or discussion regarding the additional evidence.

21

 

The Board will, therefore, set aside OWCP’s August 28, 2020 decision and remand the 

case for an appropriate decision on appellant’s untimely reconsideration request, which describes 

the evidence submitted on reconsideration and provides detailed reasons for accepting or rejecting 

the reconsideration request.22

CONCLUSION

The Board finds that OWCP properly determined that appellant’s August 21, 2020 request 

for reconsideration was untimely filed. However, the Board further finds that the case is not in 

posture for decision with regard to whether the untimely reconsideration request demonstrates 

clear evidence of error.

 

19 20 C.F.R. § 10.126.

20 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

21 See J.K., supra note 16.

22 5 U.S.C. § 8124(a).
6

ORDER

IT IS HEREBY ORDERED THAT the August 28, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed in part, set aside in part, and the case is remanded 

for further proceedings consistent with this decision of the Board.

Issued: April 15, 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