United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.P., Appellant

and

U.S. POSTAL SERVICE, BUFFALO POST 

OFFICE, Buffalo, NY, Employer

__________________________________________

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Docket No. 20-0178

Issued: August 23, 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 October 31, 2019 appellant filed a timely appeal from a May 10, 2019 nonmerit 

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

elapsed from OWCP’s last merit decision, dated May 1, 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 her claim.

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the 

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

error. 

 

1 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY

On October 16, 2017 appellant, then, 63-year-old letter carrier, filed a notice of recurrence 

(Form CA-2a) alleging that she sustained a recurrence of disability as a result of an April 30, 2011 

left knee employment injury.

2

 She claimed that on approximately September 6, 2017, while

walking to her vehicle, her left knee unexpectedly buckled, and she twisted it when she tried to 

regain balance while in the performance of duty. Appellant indicated that her left knee has been 

unstable with cartilage loss following her original injury and subsequent surgery, causing 

weakness and for it to frequently buckle. On the reverse side of the claim form the employing

establishment indicated that appellant did not stop work and had been accommodated with 

modified job duties following her original injury.

3

A September 27, 2017 left knee magnetic resonance imaging (MRI) scan demonstrated a

tricompartmental degenerative change with full-thickness cartilage defects, complex tearing of the 

posterior horn and the medial meniscus, sequela of prior high-grade anterior cruciate ligament 

(ACL) injury, small-to-moderate popliteal cyst, and small joint effusion with synovial 

hypertrophy.

In an August 15, 2017 work capacity evaluation (Form OWCP-5c), Dr. Mark Anders, a 

Board-certified orthopedic surgeon, advised that appellant had permanent work restrictions 

resulting from her previously accepted work injury under OWCP File No. xxxxxx095, consisting 

of no repetitive use of stairs, reaching above the shoulder, climbing, as well as no pushing, pulling, 

or lifting more than 20 pounds.

In an October 3, 2017 medical report, Dr. Anders noted that the September 28, 2017 MRI 

scan demonstrated some degree of tricompartmental osteoarthritis as well as a degenerative 

meniscus tear. He recommended a new x-ray and left knee arthroscopy with partial medial 

meniscectomy. In a Form OWCP-5c of even date, Dr. Anders modified appellant’s permanent 

work restrictions to include no bending/stooping, as well as no climbing into a mail vehicle, 

driving, winter walking while delivering mail, or street walking while delivering mail with a 20-

pound bag. He also limited appellant’s walking to inside only.

In a letter dated October 19, 2017, a health and resource management specialist for the 

employing establishment provided OWCP a copy of a modified city carrier position offered to 

appellant on September 25, 2017, based on the work restrictions provided by Dr. Anders in his 

August 15, 2017 report. She requested that it determine whether appellant could perform the duties 

of the offered position.4

 

2 OWCP previously accepted appellant’s claim for a left knee meniscus tear and strain resulting from the April 30, 

2011 employment incident under OWCP File No. xxxxxx095.

3 A March 1, 2018 employing establishment notification of personnel action (PS Form 50) indicated that appellant 

retired, effective December 31, 2017.

4

In an October 19, 2017 report of work status (Form CA-3), the employing establishment informed OWCP that 

appellant had accepted its new offer of modified assignment on October 16, 2017.
3

In a response dated December 18, 2017, OWCP informed the employing establishment that 

the September 25, 2017 offer of the modified city carrier position was not suitable for appellant, 

finding that it exceeded work restrictions provided by Dr. Anders in his October 3, 2017 work 

capacity evaluation.

In a December 19, 2017 development letter, OWCP provided a definition of a recurrence 

of disability. It advised appellant of the factual and medical evidence necessary to establish her 

claim, provided a questionnaire for her completion, and afforded her 30 days to submit additional 

evidence.

In a December 15, 2015 medical report, Dr. Anders noted that appellant presented with 

arthritic symptoms, but was managing with her work restrictions. He indicated that she 

experienced a mild-to-moderate disability with regard to her bilateral knee osteoarthritis. 

Dr. Anders opined that appellant had 50 percent temporary impairment.

An October 3, 2017 left knee x-ray report revealed moderate symmetric osteoarthritis of 

both knees with medial joint space narrowing.

In an October 16, 2017 medical report, Dr. Thomas Bevilacqua, a Board-certified 

diagnostic radiologist, noted April 30, 2011 as the date of incident and diagnosed osteoarthritis.

In a January 16, 2018 narrative response to OWCP’s development questionnaire, appellant 

described her modified job duties following her original April 30, 2011 employment injury, which 

included casing and handling mail. She explained that she struggled with her work duties because 

it temporarily required her to perform street deliveries, which included climbing in and out of her 

mail vehicle at least 14 times a day. Appellant indicated that Dr. Anders modified her work 

restrictions after reviewing the September 27, 2017 left knee MRI scan, which revealed a torn 

meniscus. She explained that she was then limited to working inside and worked with restrictions 

until she retired on December 31, 2017. Appellant contended that she still had residuals from her 

original employment injury.

In a January 17, 2018 medical report, Dr. Anders noted that appellant’s 2011 employmentrelated injury resulted in both meniscal and articular damages. He diagnosed a recurrent meniscal 

tear and progressive degenerative osteoarthritis. Dr. Anders opined, although he could not say 

with certainty, her current injury was “definitely more likely than not” attributed to and consequent 

to her 2011 employment injury.

On January 18, 2018 appellant completed OWCP’s questionnaire, noting that her disability 

occurred by simply walking and that there was no intervening cause except for her work activities. 

She asserted that pain and instability of her left knee never went away following the April 30, 2011 

employment injury. Appellant contended that her current condition was caused by the 2011 

employment injury, which was made worse after her original meniscus surgery causing her left 

knee to buckle, twist, and tear.

On February 22, 2018 OWCP notified appellant that her recurrence claim had been 

administratively converted to an occupational disease under the current claim, File No. xxxxxx739. 

It found that, based on her “description of the circumstances that prompted the filing of the Form 
4

CA-2a, [appellant was] really claiming a new occupational disease attributed to repetitive 

work/exposure over the course of more than one work shift.”

In a March 22, 2018 development letter, OWCP informed appellant of the deficiencies in 

her claim. It advised her of the factual and medical evidence necessary to establish her claim and 

provided a factual questionnaire for completion. In a separate development letter of even date, 

OWCP requested that the employing establishment provide additional information concerning 

appellant’s claim. It noted that in the absence of a full reply from the employing establishment, it 

may accept appellant’s allegations as factual. OWCP afforded both parties 30 days to submit the 

requested information. 

In a March 30, 2018 letter, appellant’s postmaster, A.E., indicated that appellant had 

informed her that her left knee buckled and twisted when she was walking to her vehicle. She 

explained that appellant’s modified work duties included casing, sorting, and pulling down mail 

for about one hour a day. A.E. noted that appellant was accommodated with a stool to avoid 

standing on her knee for a long period and was able to take a break if needed. She further noted 

that additional help was available upon appellant’s request. A.E. indicated that appellant was 

unable to perform any of the street activities due to the injury of her knee.

In an April 18, 2018 response to OWCP’s March 22, 2018 questionnaire, appellant 

estimated that her injury occurred on or around September 6, 2017. She explained that her left 

knee buckled so frequently and unpredictably that she did not write down actual dates. Appellant 

indicated that her left knee started to buckle in 2015, when she started using a brace. She related 

that when her knee buckled, it might be sore for a day or two before the pain would go away, but 

on or around September 6, 2017, the pain did not subside. Appellant explained that she was not 

working at the time of the September 6, 2017 incident, but was walking to her personal vehicle on 

her own free time when her left knee spontaneously buckled without any intervening cause. She 

indicated that she saw Dr. Anders on October 3, 2017, who increased her work restrictions and 

advised her to avoid further damaging the left knee.

In a separate letter of even date, appellant contended that OWCP made a mistake,

converting her recurrence case to a new occupational disease claim. She noted that the employing 

establishment had initially given her a Form CA-2a. Appellant argued that she was not released 

from treatment for the accepted April 30, 2011 employment injury under OWCP File No. 

xxxxxx095. She explained that she was experiencing symptoms of an articular damage on a daily 

basis and that there was no way for her to keep track of every time her knee buckled. Appellant 

noted that she wore a knee brace for stability in 2015. She contended that this buckling had been 

going on since 2011.

By decision dated May 1, 2018, OWCP denied appellant’s occupational disease claim 

finding that the medical evidence submitted was insufficient to establish causal relationship 

between her condition and the accepted factors of her federal employment.

On May 7, 2019 appellant requested reconsideration. She argued that her case should have 

been developed as a recurrence claim, not a new occupational disease claim. Appellant contended 

that her current injury was a consequential injury of the previously accepted April 30, 2011 

employment injury under OWCP File No. xxxxxx095.
5

By decision dated May 10, 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.5 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.6 The one-year period for requesting reconsideration begins 

on the date of the original OWCP decision, but the right to reconsideration within one year also 

accompanies any subsequent merit decision on the issues, including any merit decision by the 

Board.7 Timeliness is determined by the document receipt date (i.e., the “received date” in 

OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).8 The Board has found 

that the imposition of the one-year limitation does not constitute an abuse of the discretionary 

authority granted OWCP under section 8128(a) of FECA (5 U.S.C. § 8128(a)).

9

OWCP may not deny a request for reconsideration solely because the application was not 

timely filed. When a request for reconsideration is untimely filed, it must nevertheless undertake 

a limited review to determine whether the application demonstrates clear evidence of error.10 

OWCP 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 request demonstrates clear evidence of error on the part of OWCP.11

To demonstrate clear evidence of error, the evidence submitted must not only be of 

sufficient probative value to create a conflicting 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.12 The Board 

notes that clear evidence of error is intended to represent a difficult standard.13 Evidence that does 

not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to 

 

5 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).

6 20 C.F.R. § 10.607(a).

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

8

Id. at Chapter 2.1602.4(b) (February 2016).

9 See R.L., Docket No. 18-0496 (issued January 9, 2019).

10 See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019).

11 Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.1602.5(a) (February 2016).

12 G.G., supra note 10.

13 M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., supra note 9.
6

demonstrate clear evidence of error.14 It is not enough merely to establish that the evidence could 

be construed so as to produce a contrary conclusion.15 This entails a limited review by OWCP of 

the evidence previously of record and whether the new evidence demonstrates clear error on the 

part of OWCP.16 In this regard, the Board will limit its focus to a review of how the newly 

submitted evidence bears on the prior evidence of record.17 The Board makes an independent 

determination as to whether a claimant has demonstrated clear evidence of error on the part of 

OWCP.18

ANALYSIS

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

reconsideration was untimely filed. The last merit decision of record was OWCP’s May 1, 2018 

decision. As appellant’s request for reconsideration was received by OWCP on May 7, 2019, more 

than one year after the May 1, 2018 merit decision, it was untimely filed. Consequently, she must 

demonstrate clear evidence of error by OWCP in denying her claim.19

The Board finds that the evidence submitted in support of appellant’s untimely request for 

reconsideration raises a substantial question as to the correctness of OWCP’s May 1, 2018 merit 

decision and is sufficient to demonstrate clear evidence of error.20

Appellant filed a notice of recurrence after working in a modified-duty capacity following 

the accepted April 30, 2011 left knee employment injury under OWCP File No. xxxxxx095. In a 

February 22, 2018 development letter, OWCP informed her that her recurrence claim had been

administratively converted to an occupational disease claim. It found that, based on her description 

of the circumstances, appellant was claiming a new occupational disease attributed to repetitive 

work/exposure over the course of more than one work shift. OWCP provided no further 

explanation. 

Appellant has consistently maintained that OWCP should have developed the claim as one 

for a recurrence under OWCP File No. xxxxxx095. In her April 18, 2018 response to the 

development letter, she asserted that that OWCP made a mistake converting her recurrence case 

to a new occupational disease claim. Appellant noted that the employing establishment had 

initially given her a Form CA-2a. She further argued that she was not yet released from treatment 

 

14 E.B., Docket No. 18-1091 (issued December 28, 2018).

15 J.W., Docket No. 18-0703 (issued November 14, 2018).

16 P.L., Docket No. 18-0813 (issued November 20, 2018).

17 D.G., 59 ECAB 455 (2008); A.F., 59 ECAB 714 (2008).

18 W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

19 Supra note 7; See also Debra McDavid, 57 ECAB 149 (2005).

20 See S.M., Docket No. 18-1499 (issued February 5, 2020) (OWCP will reopen a claimant’s case for merit review, 

notwithstanding the one-year filing limitation, if the claimant’s request for reconsideration shows clear evidence of 

error on the part of the OWCP).
7

for the accepted April 30, 2011 employment injury under OWCP File No. xxxxxx095. However, 

in its May 1, 2018 decision OWCP did not reference or discuss appellant’s contention of the 

unilateral conversion from a recurrence to a new occupational disease claim. 

Federal (FECA) Procedure Manual provides that, while a submission of an incorrect form 

is a technical error, it is improper to deny a case because a claimant failed to submit the correct 

form. Rather, OWCP should convert the incorrect claim form to the correct type and notify the 

claimant and the employing establishment that the claim has been converted and explain the 

reasons for the conversion.21 

As OWCP did not reference or discuss appellant’s contentions, nor explained the reasons 

for its conversion the Board therefore finds that she has raised a substantial question as to the 

correctness of the May 1, 2018 merit decision and, thus, has demonstrated clear evidence of error.22

The Board will reverse OWCP’s May 10, 2019 decision and remand the case for an 

appropriate decision on the merits of appellant’s claim.

CONCLUSION

The Board finds that appellant has demonstrated clear evidence of error in OWCP’s 

May 10, 2018 merit decision and, thus, OWCP improperly denied her request for reconsideration 

of the merits of her claim.

 

21 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.800.3(c)(2) (June 2011).

22 B.C., Docket No. 20-0465 (issued November 19, 2020)
8

ORDER

IT IS HEREBY ORDERED THAT the May 10, 2019 decision of the Office of Workers’

Compensation Programs is reversed and this case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: August 23, 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