United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.S., Appellant

and

U.S. POSTAL SERVICE, POINT BREEZE 

STATION, Philadelphia, PA, Employer

__________________________________________

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Docket No. 20-1192

Issued: July 20, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 19, 2020 appellant filed a timely appeal from a November 21, 2019 nonmerit 

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

elapsed from the last merit decision dated April 17, 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 OWCP received additional evidence following the November 21, 2019 decision. 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 as it 

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

FACTUAL HISTORY

On August 8, 2014 appellant, then a 39-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on August 7, 2014 he sustained an emotional condition after hearing 

multiple gunshots nearby when he was delivering mail while in the performance of duty. He 

stopped work on August 7, 2014. OWCP accepted the claim for post-traumatic stress disorder 

(PTSD). It paid appellant wage-loss compensation on the supplemental rolls from September 23, 

2014 through April 29, 2017, on the periodic rolls from April 30 through June 24, 2017, and on 

the supplemental rolls again thereafter.

On May 24, 2017 appellant accepted a limited-duty full-time job as a city carrier/lobby 

assistant.

On June 29, 2017 appellant filed claims for wage-loss compensation (Form CA-7) for 

disability from work for the period May 27 through June 23, 2017.

In a development letter dated July 3, 2017, OWCP informed appellant that he had been 

paid wage-loss compensation on the periodic rolls for the period May 27 through June 24, 2017.3 

Thus, it informed him that it was unclear why he was claiming additional compensation for the 

same period of time. In addition, OWCP noted that appellant had accepted a modified job offer 

and returned to work on May 27, 2017.

Appellant subsequently filed additional claims for wage-loss compensation for disability 

from work beginning June 24, 2017 and continuing.

By decision dated October 19, 2017, OWCP denied appellant’s claim for wage-loss 

compensation for disability from work for the period June 1, 2017 and continuing. It noted that 

he returned to a modified job on May 27, 2017, stopped on June 1, 2017, and worked sporadically 

afterwards. OWCP found that the medical evidence appellant submitted was insufficient to 

establish that he was disabled due to the accepted August 7, 2014 employment injury.

On October 26, 2017 appellant, through his then counsel, requested an oral hearing before 

a representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on 

March 8, 2018.

By decision dated April 10, 2018, an OWCP hearing representative affirmed in part and 

modified in part the October 19, 2017 decision. He found that the evidence of record supported 

 

3 On July 3, 2017 OWCP issued a preliminary notice informing appellant that he had been overpaid in the amount 

of $2,861.84 because he returned to full-time work on May 27, 2017 and received wage-loss compensation for total 

disability on the periodic rolls for the period May 27 through June 24, 2017. In a letter dated August 4, 2017, it 

informed him that the identified overpayment had been administratively terminated as the overpayment collection 

action would exceed the expected recovery.
3

entitlement to 32 hours of wage-loss compensation for time missed from work to attend medical 

appointments during the period June 1, 2017 through February 8, 2018. The hearing representative 

affirmed the denial for the remaining claims for wage-loss compensation for time lost from work.

By decision dated April 17, 2018, OWCP found that appellant was entitled to four hours 

of wage-loss compensation on June 1 and 6, 2017 and four hours claimed for September 6, 14, and 

20 and November 14, 2017, and January 17, and February 5, 2018.

In a letter dated May 2, 2018, appellant related that in direct response to the decision dated 

April 17, 2018 he was submitting a May 1, 2018 letter from Dr. Anne W. Tax, a clinical 

psychologist, regarding the 30 plus appointments for treatment that OWCP had overlooked. He

requested payment for all of the documented dates of medical treatment.

In a letter dated May 1, 2018, Dr. Tax related that appellant had been seen in her office for 

psychotherapy for symptoms of PTSD caused by an on-the-job injury in 2017 on June 22 and 29, 

July 6, 13, and 20, August 3, 10, 17, and 24, September 7, 19, and 28, October 12, 18, and 25, 

November 1, 15, and 30, and December 7, 21, and 28, 2017, January 4 and 18, February 1, 8, and 

22, March 8 and 24, April 12 and 25, and May 1, 2018.

In reports dated April 25, May 16, and June 12, 2018, Dr. Burton Weiss, a Board-certified 

psychiatrist, related that appellant was working close to full time, but that since appellant’s claim 

was denied his symptoms of PTSD, with anxiety and depression, had increased. He related that 

all of appellant’s absences were consistent with this diagnosis of PTSD from the August 7, 2014 

incident.

On May 17, 2018 OWCP advised appellant that it had received his May 2, 2018 letter and 

that if he disagreed with the April 17, 2018 decision he could request reconsideration or an appeal 

of that decision.

In a letter dated May 21, 2018, appellant again related that he was directly responding to 

the April 17, 2018 decision. He again referred to Dr. Tax’s May 1, 2018 letter and unpaid medical 

appointments claims from CA-7 claims previously filed.

In a letter dated July 19, 2018 Dr. Tax again related that appellant had been her patient 

since August 13, 2014 for psychotherapy due to his August 7, 2014 employment injury. She 

related that the dates he was seen for treatment in 2017 and through May 1, 2018, and added that 

he was also seen on May 14 and 31, June 14, 21, and 28, and July 5, 12, and 19, 2018.

In a letter to OWCP dated July 27, 2018, appellant again addressed his CA-7 claims for 

wage-loss compensation for medical appointments from May 27, 2017 through March 30, 2018.

By decision dated August 1, 2018, OWCP accepted appellant’s claim for recurrence of 

disability, effective July 9, 2018 as the limited-duty/modified work assignment offered by the 

employing establishment had been withdrawn.

In a letter dated August 2, 2018, OWCP informed appellant that it was responding to his

letter dated July 27, 2018 wherein he requested compensation for medical appointments from 

June 22, 2017 to March 24, 2018. It advised him that the decision dated April 10, 2018 partially 
4

affirmed in part and partially reversed the prior decision dated October 19, 2017. OWCP related 

that if appellant did not agree with that decision he could appeal the decision.

OWCP continued to receive reports from Dr. Weiss and Dr. Tax relating to appellant’s 

treatment following July 9, 2018. 

In a March 5, 2019 report, Dr. Weiss noted that he was responding to OWCP’s April 10, 

2018 decision and he addressed appellant’s disability status due to his accepted PTSD for the 

period denied.

Dr. Tax, in a March 14, 2019 report, indicated that appellant’s psychiatric symptoms were 

well documented in her prior reports and that she was responding to the April 10, 2018 OWCP 

decision. She agreed with Dr. Weiss’ opinion that appellant was totally disabled on and after 

June 1, 2017.

In a letter dated July 24, 2019, appellant requested the status of his reconsideration request 

for an April 10, 2018 decision. He asserted that the request had been submitted on March 11, 2019 

as verified by an attached postage receipt and that the request had been accompanied by medical 

evidence.

In a letter dated October 24, 2019, appellant stated that in a letter dated March 11, 2019 he 

had requested reconsideration. He stated that he submitted medical documentation and argument 

in support of his March 11, 2019 request. Appellant attached a receipt from the U.S. Postal Service

dated March 11, 2019 for a flat rate envelope mailed to London, KY with a tracking number, the 

March 11, 2019 letter requesting reconsideration of the April 10, 2018 decision, and a March 5, 

2019 report from Dr. Weiss.

OWCP also received additional reports from Dr. Weiss and Dr. Tax related to appellant’s 

medical treatment in 2019.

By decision dated November 21, 2019, OWCP denied appellant’s request for 

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

noted that it was unable to determine what documents were mailed to OWCP by the March 11, 

2019 receipt, but acknowledged that medical documentation had been received around that date.

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.,

 

4 5 U.S.C. § 8128(a); A.M., Docket No. 20-0143 (issued October 28, 2020); 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).
5

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 Its 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 

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 not only be of sufficient probative value to create a conflict 

in 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. The Board makes an independent determination as to 

whether a claimant has demonstrated clear evidence of error on the part of OWCP.12

ANALYSIS

The Board finds that OWCP improperly determined that appellant’s request for 

reconsideration was untimely filed. 

 

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

7 S.M., Docket No. 19-1166 (issued October 16, 2020); 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); A.M., supra note 4; M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. 

Prudencio, 41 ECAB 499, 501-02 (1990).

9 See S.M., supra note 7; L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued 

April 15, 2010). See also id. at § 10.607(b); supra note 6 at Chapter 2.1602.5 (February 2016).

10 J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018); 

Robert G. Burns, 57 ECAB 657 (2006).

11 T.C., Docket No. 19-1709 (issued June 5, 2020); S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 6 

at Chapter 2.1602.5(a) (February 2016).

12 U.C., Docket No. 19-1753 (issued June 10, 2020): George C. Vernon, 54 ECAB 319 (2003).
6

The case record contains appellant’s letters dated May 2 and 21 and July 27, 2018 and 

received by OWCP on May 8 and 29 and July 27, 2018, respectively, in which he specifically 

addressed the April 17, 2018 decision which paid wage-loss compensation for certain dates, but 

denied payment for other dates for which he claimed wage-loss during medical appointments. In 

these letters, he explicitly stated that he was addressing the April 17, 2018 decision. Appellant 

also submitted May 1, 2018 medical evidence from Dr. Tax in support of his request. No special 

form is required as long as the request is made in writing, identifies the decision and specific issues 

to be considered, and is accompanied by relevant and pertinent new evidence or argument not 

previously considered.13 Accordingly, the Board finds that hislettersreceived by OWCP on May 8

and 29 and July 27, 2018 constituted requests for reconsideration of OWCP’s April 17, 2018 merit 

decision.14

As appellant’s requests for reconsideration were received within one year of OWCP’s 

April 17, 2018 decision,15 they were timely filed.16 Therefore, OWCP should have applied the

standard applicable to timely reconsideration requests as set forth in 20 C.F.R. § 10.606(b)(3), 

rather than the more stringent clear evidence of error standard for untimely reconsideration 

requests 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 more stringent clear evidence 

of error standard which applies to untimely filed reconsideration requests, the Board will remand 

the case for review of this evidence under the proper standard of review for timely reconsideration 

requests, to be followed by an appropriate decision.

17

CONCLUSION

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

 

13 Jack D. Johnson, 57 ECAB 593 (2006); Vicente P. Taimanglo, 45 ECAB 504 (1994).

14 T.L., Docket No. 19-1110 (issued August 11, 2020); R.D., Docket No. 14-0896 (issued August 1, 2014); C.M., 

Docket No. 11-1988 (issued June 6, 2012).

15 R.T., Docket No. 20-0298 (issued August 6, 2020); supra note 6 at Chapter 2.1602.4(a) (February 2016).

16 J.H., Docket No. 18-1367 (issued July 17, 2019); R.M., Docket No. 17-0473 (issued June 6, 2017); C.B., Docket 

No. 13-1732 (issued January 28, 2014).

17 L.N., Docket No. 19-0170 (issued August 21, 2019).
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ORDER

IT IS HEREBY ORDERED THAT November 21, 2019 decision of the Office of 

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

consistent with this decision of the Board. 

Issued: July 20, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board