United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Seattle, WA, Employer

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Docket No. 21-1066

Issued: April 4, 2022

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

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On June 21, 2021 appellant filed an appeal from a March 22, 2021 nonmerit decision of 

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

the last merit decision dated March 3, 2020 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.

On September 24, 2018 appellant, then a 55-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on September 5, 2018 she sustained left knee meniscustears when 

she lost balance after stepping off a sidewalk and into the grass while in the performance of duty. 

She did not initially stop work. OWCP accepted the claim for complex tears of the lateral and 

medial meniscus of the left knee.

1

5 U.S.C. § 8101 et seq.
2

Appellant stopped work on January 14, 2019. On that date, she underwent OWCP

authorized arthroscopic surgery, chondroplasty of the patella and medial femoral condyle, and 

partial medial meniscectomy of her left knee. 

On November 7, 2019 appellant requested OWCP authorization for platelet plasma 

injections. 

In a letter dated November 19, 2019, Dr. Ronan Cahill, a physician Board-certified in 

family practice and sports medicine, noted that a recent magnetic resonance imaging (MRI) scan 

of appellant’s left knee demonstrated persistent lateral meniscal tearing for which he recommended 

platelet plasma injections as treatment. 

In a letter dated December 11, 2019, Dr. Cahill observed that three surgeons had already 

agreed that attempting another surgery of her left knee was not recommended, as the lateral 

compartment was too restricted for successful surgery. He noted that surgery was not the only 

option, as platelet rich plasma injections had a realistic chance of providing significant functional 

improvement and allowing her to return to her date-of-injury position.

On January 21, 2020 OWCP referred the medical evidence of record, along with a 

statement of accepted facts (SOAF), to Dr. Nathan Hammel, a Board-certified orthopedic surgeon 

serving as district medical adviser (DMA) for review. It requested that he opine as to the medical 

necessity of the proposed platelet plasma injection treatment.

In a report dated February 4, 2020, Dr. Hammel reviewed the SOAF and medical records, 

and opined that the proposed platelet rich plasma injection treatment was causally related to the 

accepted condition, but not medically necessary, as evidence did not indicate that it was superior 

over other techniques for treating a meniscus tear. He noted that Dr. Cahill had not addressed any 

reason why open surgical treatment was not an option. 

By decision dated March 3, 2020, OWCP denied authorization for medical treatment of 

platelet plasma injections.

OWCP continued to receive medical evidence. In a report dated June 8, 2020, Dr. Kevin 

Conley, a family medicine specialist, administered a corticosteroid injection. He noted that 

surgery was not a good option given previous recommendations against surgery by her original 

surgeon. Dr. Conley recommended consideration of platelet rich plasma injections.

On December 17, 2019 and August 17, 2020 appellant underwent platelet rich plasma 

injections of the left knee with Dr. Cahill. 

On March 8, 2021 appellant requested reconsideration of its March 3, 2020 decision. With 

her reconsideration request, she submitted a statement dated January 29, 2021 in which she argued 

that she had submitted sufficient medical evidence demonstrating that her platelet rich plasma 

injections had been successful and had enabled her to return to full duty in her date -of-injury 

position. On the same date, OWCP received the results of diagnostic tests of the left knee dated 

February 19, March 4, June 8, and October 5 2020 and January 5, 2021. It also received physical 

evidence in the form of two compact discs, which appellant indicated contained ultrasound images 

of her left knee. In a letter dated February 1, 2021, Dr. Cahill noted that appellant had undergone 
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platelet rich plasma injections and noted that she had significant improvement in both pain and 

function, as she had returned to work at full capacity. He stated that the pla telet rich plasma 

injections had been very successful in managing and improving appellant’s disability secondary 

to meniscal tearing, especially in the setting of poor surgical options.

By decision dated March 22, 2021, OWCP 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.

LEGAL PRECEDENT

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

merit review.2 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.3 Timeliness is determined by the document receipt date, i.e., 

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 4 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.5

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.6Its 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.7In this 

regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the 

prior evidence of record.8

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

issue which was decided by OWCP.9 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 

2

5 U.S.C. § 8128(a); seeT.J., Docket No. 21-0586 (issued September 30, 2021); L.W., Docket No. 18-1475 (issued 

February7, 2019); Y.S., Docket No. 08-0440 (issued March 16, 2009).

3

20 C.F.R. § 10.607(a).

4 Federal (FECA) Procedure Manual, Part 2 --Claims, Reconsiderations, Chapter 2.1602.4b (September 2020).

5 G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); LeonD. 

Faidley, Jr., 41 ECAB 104 (1989).

6

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).

7 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April15, 2010). See 

also 20 C.F.R. § 10.607(b); supranote 4 at Chapter 2.1602.5 (September 2020).

8

J.M., Docket No. 19-1842 (issued April23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

9

S.C., Docket No. 18-0126 (issued May 14, 2016); supranote 4 at Chapter 2.1602.5a (September 2020).
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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.10

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. 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.11 The Board makes an independent determination of 

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

ANALYSIS

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

reconsideration was untimely filed. 

The last merit decision was dated March 3, 2020. As appellant’s request for 

reconsideration was not received by OWCP until March 8, 2021, more than one year after March 3, 

2020, pursuant to 20 C.F.R. § 10.607(a), the request for reconsideration was untimely filed. 

Consequently, appellant must demonstrate clear evidence of error by OWCP in denying the 

claim.13

The Board further finds that OWCP summarily denied appellant’s request for 

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

regulations.14 Section 8124(a) of FECA (5 U.S.C. § 8124(a)) provides that OWCP shall determine 

and make findings of fact and make an award for or against payment of compensation. Its 

regulations at 20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain 

findings of fact and a statement of reasons. As well, OWCP’s procedures provide that the 

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

11 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 4 at Chapter 2.1602.5(a) (September 2020).

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

13 20 C.F.R. § 10.607(b); S.C., Docket No. 20-1537 (issued April14, 2021); R.T., Docket No. 19-0604 (issued 

September 13, 2019); see Debra McDavid, 57 ECAB 149 (2005).

14 See Order Remanding Case, W.D., Docket No. 20-0859 (issued November 20, 2020); Order Remanding Case,

C.G., Docket No. 20-0051 (issued June29, 2020); Order Remanding Case, T.P., Docket No. 19-1533 (issued April30, 

2020); see also 20 C.F.R. § 10.607(b).
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reasoning behind OWCP’s decision should be clear enough for the reader to understand the precise 

defect of the claim and the kind of evidence, which would overcome it.15

In its March 22, 2021 decision, OWCP did not discharge its responsibility to set forth 

findings of fact and a clear statement of reasons explaining the disposition so that appellant could 

understand the basis for the decision.16 It did not make any findings regarding the evidence 

submitted in support of the reconsideration request.17 OWCP summarily denied appellant’s 

request for reconsideration without complying with the review requirements of FECA and its 

implementing regulations.18 Its failure to provide factual findings and explain the basis for its 

conclusion that appellant did not demonstrate clear evidence of error precludes the Board’s review 

of the decision.19

The Board will set aside OWCP’s March 22, 2021 decision and remand the case for an 

appropriate decision on appellant’s untimely reconsideration request.

CONCLUSION

The Board finds that appellant’s request for reconsideration was untimely filed. The Board 

further finds that the case is not in posture for decision regarding whether appellant has 

demonstrated clear evidence of error.

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

16 20 C. F.R. § 10.126; D.W., Docket No. 18-0483 (issued March 7, 2019).

17 See C.R., Docket No. 17-0964 (issued September 9, 2019).

18 Id.

19 See Order Remanding Case, Docket No. 19-1533 (issued April30, 2020).
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ORDER

IT IS HEREBY ORDERED THAT the March 22, 2021 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for action consistent with 

this decision of the Board.

Issued: April 4, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board