United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Independence, KS, Employer

__________________________________________

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Docket No. 19-1539

Issued: January 27, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On July 11, 2019 appellant, through counsel, filed a timely appeal from a June 14, 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 July 29, 2014, 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 to review the merits of this claim.

 

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

error.

FACTUAL HISTORY

On May 27, 2014 appellant, then a 62-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that, on January 21, 2014, he sustained injuries to his neck, left arm/hand, 

lower back, and right lower extremity when the long-life vehicle (LLV) he was operating was 

struck by a truck while in the performance of duty. On the reverse side of the claim form, the 

employing establishment indicated that appellant stopped work on April 3, 2014.3

A January 22, 2014 employing establishment accident report (PS Form 1769/301) provided 

specific details regarding appellant’s January 21, 2014 work-related motor vehicle accident 

(MVA). 

In an April 4, 2014 note, Dr. Yogesh Kolwadkar, an orthopedic surgeon, stated that 

appellant should be non-weight-bearing on the right lower extremity for approximately two weeks.

In a June 25, 2014 development letter, OWCP informed appellant of the deficiencies of his 

claim and requested additional medical evidence. It explained that the then-current record did not 

include a diagnosis of any condition resulting from his injury. OWCP afforded appellant 30 days 

to submit the requested medical evidence.

By decision dated July 29, 2014, OWCP denied appellant’s claim, finding that he had not 

submitted medical evidence containing a diagnosis by a qualified physician with regard to the 

accepted January 21, 2014 employment incident.

In November 2014, OWCP received appellant’s May 20, 2014 emergency department 

treatment records. Dr. Melinda R. Allen, a Board-certified family practitioner, diagnosed lumbar 

muscle spasm and lumbar radiculopathy. She noted that appellant had presented with lower back 

pain, knee pain, and neck pain, which had persisted for several weeks, and that he had returned to 

work three days prior.

On August 27, 2015 appellant requested reconsideration of OWCP’s July 29, 2014 

decision.

In a February 13, 2015 attending physician’s report (Form CA-20), Dr. Traeger Tvedten, a 

chiropractor, diagnosed degenerative disc disease of the cervical and lumbar spine, noting different 

symptoms since a January 21, 2014 MVA. He checked a box marked “yes” indicating that 

 

3 The employing establishment further noted that appellant was in the performance of duty when injured, and that 

his injury was caused by a third party. However, it challenged appellant’s entitlement to continuation of pay (COP) 

because of the more than 30-day delay in filing his traumatic injury claim.
3

appellant’s condition was caused or aggravated by the incident, explaining that his symptoms were 

aggravated after the MVA in a postal vehicle.

By decision dated September 23, 2015, OWCP denied appellant’s request for 

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

On December 5, 2016 appellant, through counsel, again requested reconsideration of 

OWCP’s July 29, 2014 decision.4 He referenced 5 U.S.C. § 8128(a) in support of his motion, and 

provided additional medical evidence.

A September 13, 2016 magnetic resonance imaging (MRI) scan of appellant’s thoracic 

spine revealed a benign hemangioma in the T1 vertebral body, abnormal signal intensity in the 

inferior endplate of T3 and superior endplate of T4, and no evidence of disc herniation or central 

canal stenosis.5

In a November 5, 2016 letter, Dr. Robert Legler, a Board-certified internist, opined that 

appellant’s back pathology was very likely exacerbated, if not caused by his past car accident. He 

explained that while it would have been helpful for appellant to have had a complete workup at 

the time of the accident to prove causation, nonetheless there was a “good chance” that “the 

accident was a major player in [appellant’s] current clinical presentation.”

The Office of Personnel Management (OPM) approved appellant’s disability retirement 

effective January 25, 2019, and he was separated from the employing establishment as of that date.

Along with a letter dated March 4, 2019, counsel resubmitted the request for 

reconsideration which OWCP previously received on December 5, 2016. He also resubmitted 

appellant’s September 13, 2016 thoracic spine MRI scan and Dr. Legler’s November 5, 2016 note. 

By decision dated June 14, 2019, OWCP denied appellant’s request for reconsideration, 

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

LEGAL PRECEDENT

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

merit review.6 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 

 

4 The Board notes that counsel captioned his motion as a motion to rescind. Counsel’s mere characterization of the 

request as a motion to rescind under 5 U.S.C. § 8128(a), rather than a request for reconsideration, is found by the 

Board to be without significance as it cannot circumvent OWCP’s discretionary authority to impose a one-year 

timeframe for requesting reconsideration pursuant to 5 U.S.C. § 8128(a). 

5 The reviewing radiologist noted that the abnormalities at T3-T4 may represent Modic II degenerative changes 

versus bone bruising secondary to occult fractures. She further commented that these findings were not present on a 

previous study from 2014.

6 5 U.S.C. § 8128(a); see M.E., Docket No. 18-1497 (issued March 1, 2019); J.W., Docket No. 18-0703 (issued 

November 14, 2018); Y.S., Docket No. 08-0440 (issued March 16, 2009).
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decision for which review is sought.7 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).8 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.9

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.10 If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.11

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

issue which was decided by OWCP.12 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.13 Evidence that does not raise a 

substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate 

clear evidence of error.14 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.15 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.16 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.17

OWCP’s procedures note that the term clear evidence of error is intended to represent a 

difficult standard.18 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 

 

7 20 C.F.R. § 10.607(a).

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

9 See M.E., supra note 6; E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 

104 (1989).

10 See 20 C.F.R. § 10.607(b); M.E., supra note 6; Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

11 G.G., Docket No. 18-1074 (issued January 7, 2019); see also id. at § 10.607(b); supra note 8 at Chapter 2.1602.5 

(February 2016).

12 A.A., Docket No. 19-1219 (issued December 10, 2019); J.F., Docket No. 18-1802 (issued May 20, 2019); J.D., 

Docket No. 16-1767 (issued January 12, 2017); see Dean D. Beets, 43 ECAB 1153 (1992).

13 Id.; see also Leona N. Travis, 43 ECAB 227 (1999).

14 J.F., supra note 12; J.D., supra note 12; Jimmy L. Day, 48 ECAB 652 (1997).

15 Id.

16 Id.

17 J.F., supra note 12; M.E., supra note 6; Robert G. Burns, 57 ECAB 657 (2006).

18 See G.G., supra note 11.
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the denial was issued, would have created a conflict in medical opinion requiring further 

development, is not clear evidence of error.19 The Board makes an independent determination of 

whether a claimant has demonstrated clear evidence of error on the part of OWCP.20

ANALYSIS

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.

The Board finds that OWCP properly determined that appellant failed to file a timely 

request for reconsideration. OWCP’s regulations21 and procedures22 establish a one-year time 

limitation for requesting reconsideration, which begins on the date of the last OWCP merit 

decision. A right to reconsideration within one year also accompanies any subsequent merit 

decision on the issues.23 The most recent merit decision was OWCP’s July 29, 2014 decision. As 

appellant’s request for reconsideration was not received by OWCP until December 5, 2016, more 

than one year after the July 29, 2014 decision, the Board finds that it was untimely filed. Because 

his request was untimely, he must demonstrate clear evidence of error on the part of OWCP in 

having denied his traumatic injury claim.

The Board further finds that appellant has failed to demonstrate clear evidence of error on 

the part of OWCP in its last merit decision. OWCP denied his traumatic injury claim, finding that 

he had notsubmitted medical evidence including a diagnosis by a qualified physician in connection 

with the accepted January 21, 2014 employment incident.

With his request for reconsideration, appellant submitted a letter from Dr. Legler dated 

November 5, 2016 and the results of an MRI scan of appellant’s thoracic spine taken on 

September 13, 2016. This evidence does not show that OWCP erred in its July 29, 2014 decision 

at the time it was issued. Dr. Legler’s letter contained neither a firm diagnosis, nor reference to 

the specific date of injury claimed by appellant. While the diagnostic report of September 13, 

2016 includes diagnoses, it also did not contain any reference to the specific date of injury. As 

noted above, 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, does not demonstrate clear evidence of error.24 Neither Dr. Legler’s November 5, 

2016 letter nor the diagnostic report of September 13, 2016 demonstrate clear evidence of error on 

the part of OWCP in its last merit decision.

 

19 J.F., supra note 12; J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 8 at Chapter 2.1602.5(a) 

(February 2016).

20 See M.E., supra note 6; D.S., Docket No. 17-0407 (issued May 24, 2017).

21 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

22 Supra note 8 at Chapter 2.1602.4 (February 2016); Veletta C. Coleman, 48 ECAB 367, 370 (1997).

23 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

24 J.F., supra note 12; J.S., supra note 19; supra note 8 at Chapter 2.1602.5(a) (February 2016).
6

Clear evidence of error is intended to represent a difficult standard. The Board makes an 

independent determination of whether a claimant has submitted clear evidence of error on the part 

of OWCP.25 As appellant has not submitted such evidence, the Board finds that he has not 

demonstrated 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.

ORDER

IT IS HEREBY ORDERED THAT the June 14, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 27, 2020

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

25 Supra note 17.