United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.G., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Surfside, FL, Employer

__________________________________________

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Docket No. 21-0540

Issued: November 9, 2021

Appearances: Case Submitted on the Record

Joanne M. Wright, for the appellant1

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 February 26, 2021 appellant, through his representative, filed a timely appeal from a 

December 28, 2020 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). The last merit decision in this case was a Board decision dated April 9, 2019, which

became final after 30 days of issuance, and is not subject to further review. 2 As there was no merit 

decision issued by OWCP within 180 days of the filing of this appeal, pursuant to the Federal 

Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not 

have jurisdiction over the merits of this case.

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

20 C.F.R. § 501.6(d).

3

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

This case has previously been before the Board.4 The facts and circumstances of the case 

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

are as follows.

On June 29, 2015 appellant, then a 58-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that he sustained a right shoulder condition in the form of a rotator 

cuff tear due to performing his work duties as a letter carrier.5 He indicated that he had engaged 

in repetitive motions of casing mail, reaching, and lifting on a daily basis for the past 333⁄4 years 

while working as a letter carrier. Appellant advised that he first reported his right shoulder pain 

when he previously filed a separate claim for an alleged August 18, 2007 right shoulder injury 

under OWCP File No. xxxxxx964,6 and indicated that he continued to experience right shoulder 

pain consistent with a right rotator cuff tear when casing mail, lifting, and otherwise reaching out 

with his arms. He noted that he first became aware of the claimed condition on August 18, 2007 

and April 16, 2015 and first realized its relation to his federal employment on August 18, 2007 and 

May 6, 2015. Appellant stopped work on May 5, 2015.

In support of his claim, appellant submitted a report dated July 29, 2013 from Dr. Alex M. 

Lam, a Board-certified internist and rheumatologist, who diagnosed diffuse arthralgia and primary 

localized osteoarthritis. In a September 9, 2013 report, Dr. Hugh Fonesca, a Board-certified 

internist and rheumatologist, diagnosed diffuse arthralgia, primary localized osteoarthritis, 

sarcoidosis, Crohn’s disease, synovitis, and tenosynovitis. In a March 27, 2015 report, Dr. Marc Z. 

Hammerman, a Board-certified orthopedic surgeon, advised that appellant presented complaining 

of having right shoulder pain for an unspecified period. He diagnosed right rotator cuff 

tendinitis/bursitis in the shoulder region,scapular elastofibroma of the right shoulder, with possible 

tear, as seen on prior diagnostic testing, and degeneration of cervical intervertebral disc. 

Appellant also submitted August 20, 2007 and April 10, 2015 magnetic resonance imaging 

(MRI) scans of his rightshoulder.

Appellant also submitted a May 6, 2015 report indicating that Dr. Hammerman performed 

unauthorized right shoulder surgery on that date, including rotator cuff repair involving the 

4 Docket No. 17-1536 (issued December 5, 2017); Docket No. 18-1778 (issued April9, 2019).

5 OWCP assigned the present claim OWCP File No. xxxxxx065.

6 The Board notes that appellant’s prior claim for an August 18, 2007 right shoulder injury was denied underOWCP 

File No. xxxxxx964 and is not the subject of the present appeal.
3

supraspinatus muscle, acromioplasty, resection of the distal clavicle, subacromial bursectomy, and 

arthroscopic labral debridement.

In an August 14, 2015 report, Dr. Hammerman discussed the findings of the April 10, 2015

MRI scan and indicated that, considering appellant’s 33 years of engaging in repetitive motion as

a letter carrier, it was within all reasonable medical probability that there was a causal relationship

between his letter carrier duties and the clinical findings.

By decision dated January 26, 2016, OWCP denied appellant’s claim for a work-related

occupational right shoulder condition, finding that he had not submitted sufficient medical 

evidence to establish causal relationship between a diagnosed medical condition and the accepted

employment factors, i.e., his letter carrier duties, which included casing mail, carrying a mailbag,

delivering mail, and pushing mail gurneys.

On May 6, 2016 appellant requested reconsideration of the January 26, 2016 decision and 

he submitted a May 4, 2016 report from Dr. Hammerman who provided a discussion of his work 

duties and the results of right shoulder MRI scans. Dr. Hammerman opined that, considering 

appellant’s 34 years of employment as a letter carrier with the employing establishment, which 

required a great deal of repetitive motions including lifting tubs and trays of mail and repetitive 

motion of reaching above shoulder height to case mall, it was within all reasonable medical 

probability there was a causal relationship between his letter carrier duties and the clinical findings.

By decision dated June 2, 2016, OWCP denied modification of the January 26, 2016 

decision.

On March 28, 2017 appellant, through his representative, requested reconsideration of the 

June 2, 2016 decision. He submitted a March 20, 2017 report from Dr. Martin E. Hale, an 

attending Board-certified orthopedic surgeon, who indicated that his continued work with 

overhead reaching for casing, as well as repetitive reaching and twisting of his arm during the 

delivery portion of his route, “are significantly contributing to his continuing shoulder problems.”

By decision dated June 16, 2017, OWCP denied modification of its June 2, 2016 decision. 

On August 2, 2016 appellant, through his representative, requested reconsideration of the 

January 26, 2016 decision and presented additional argument. By decision dated December 20, 

2016, OWCP denied appellant’s request for reconsideration of the merits of his claim pursuant to 

5 U.S.C. § 8128(a).

Appellant appealed to the Board and, by decision dated December 5, 2017,7the Board

affirmed OWCP’s June 16, 2017 decision. 

On June 26, 2018 appellant, through his representative, requested reconsideration of the 

June 16, 2017 decision and submitted a March 1, 2018 report from Dr. Hammerman who noted 

that appellant’s physical findings were consistent with the work activities of reaching above 

shoulder height, lifting 25- to 30-pound tubs, and casing mail. He opined that the findings of an 

April 10, 2015 MRI scan of the right shoulder were consistent with the history of the overuse 

7

Supra note 4.
4

syndrome. Dr. Hammerman noted, “[i]n view of there not being any other history of trauma to the 

shoulder, and in view of the nature of his work activities resulting in the overuse of his right 

dominant upper extremity, I find the correlation of his work overuse activities, to the right shoulder 

pathology, as a causative factor, to be quite consistent.”

By decision dated September 20, 2018, OWCP denied appellant’s claim for an 

employment-related right shoulder condition. Appellant, through his representative, appealed to 

the Board and, by decision dated April 9, 2019,8the Board affirmed OWCP’s September 20, 2018 

decision.

On December 10, 2020 appellant, through his representative, requested reconsideration of 

his claim. 

Appellant submitted an undated report from Dr. Fernando Jimenez, a Board-certified 

internist, who discussed his work duties and the history of his complaints of right shoulder 

symptoms. Dr. Jimenez noted that he examined appellant on June 25, 2020 at which time he 

reported that he had to case 250 to 700 letters and 800 to 2,000 flats for five to six days per week 

over the course of the past 34 years. Appellant further reported that he carried a mail pouch 

weighing up to 35 pounds for approximately four or five miles per day, opened and closed mail 

boxes with his right arm, and lifted, pushed, and pulled items weighing up to 70 pounds. 

Dr. Jimenez indicated that, based on the reported work duties, appellant cased approximately 2.652 

million letters and 8.4 million flats over a 34-year period. He noted that the motion required to 

bring a letter from the tub to the table and then into the case for sorting purposes required the use 

of the bicep working in conjunction with the shoulder joint in order to grasp, pull, extend , and 

rotate the letter into the slot. Dr. Jimenez advised that appellant reported suffering a slight tear of 

the distal head of the right deltoid in 2007 and posited that this injury was significant because any 

interruption in the biomechanics of movement would cause further injury over time. He further 

noted that, when a muscle is deficient, the other muscles involved in movement would have to 

compensate and, thus, become injured over time. Dr. Jimenez opined that the 2007 injury caused

further damage resulting in his surgery in 2015 and noted that every time appellant lifted his arm 

past 90 degrees there was undue stress to the muscles and ligaments of the right shoulder, which 

over time, caused an occupational disease. He indicated, “[f]rom 2007 until 2015 the repetitive 

movement coupled with the deficient biomechanics was the direct cause of [appellant’s] 

[o]ccupational [d]isease. The fact that [appellant] was injury free until 2007 and the [MRI scans] 

taken approximately [seven] years apart as well as the postoperative report that utilize the 

description of ‘frayed,’ ‘degenerative,’ and chronic illustrate the causative nature of this 

gentleman’s injury.”

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

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

8

Id.
5

LEGAL PRECEDENT

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

merit review.9 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.10 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).11 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.12

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. 13 If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.14

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

issue which was decided by OWCP.15 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.16 Evidence that does not raise a 

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

clear evidence of error.17 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.18 To demonstrate clear evidence 

of error, the evidence submitted must be of sufficient probative value to shift the weight of the 

9

5 U.S.C. § 8128(a); see also A.B., Docket No. 19-1539 (issued January 27, 2020); W.C., 59 ECAB 372 (2008).

10 20 C.F.R. § 10.607(a).

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

12 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).

13 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).

14 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 11 at Chapter 2.1602.5 (September 2020).

15 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); Dean D. Beets, 43 ECAB 1153 (1992).

16 J.D., Docket No. 19-1836 (issued April6, 2020); Leone N. Travis, 43 ECAB 227 (1999).

17 S.W., Docket No. 18-0126 (issuedMay14, 2019); Robert G. Burns, 57 ECAB 657 (2006).

18 T.N., Docket No. 18-1613 (issued April29, 2020).
6

evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s 

decision.19

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

difficult standard.20 The claimant must present evidence which on its face shows that OWCP made 

an error.21 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.22 The Board makes an independent determination of 

whether a claimant has demonstrated clear evidence of error on the part of OWCP. 23

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration as it 

was untimely filed.

As noted above, a request for reconsideration must be received within one year of the date 

of the last merit decision for which review is sought.24 As appellant’s request for reconsideration 

was not received by OWCP until December 10, 2020, more than one year after issuance of the last

merit decision, i.e., the Board’s April 9, 2019 decision, it was untimely filed.25 Consequently, he 

must demonstrate clear evidence of error by OWCP in its September 20, 2018 decision.

The Board further finds that appellant has not demonstrated clear evidence of error. The 

representative argued that the reports of Dr. Hammerman and Dr. Jimenez established appellant’s 

claim for an employment-related right shoulder injury, but the representative’s own opinion on the 

underlying medical issue of the case also does not raise a substantial question as to the correctness 

of OWCP’s September 20, 2018 decision.

26

Appellant submitted an undated report in which Dr. Jimenez opined that he had developed 

an employment-related right shoulder injury due to his repetitive work duties. Dr. Jimenez

indicated, “[f]rom 2007 until 2015 the repetitive movement coupled with the deficient 

biomechanics was the direct cause of [appellant’s] occupational disease. The fact that [appellant] 

19 J.M., Docket No. 19-1842 (issued April23, 2020).

20 See supra note 11 at Chapter 2.1602.5(a) (September 2020); see also J.S., Docket No. 16-1240 (issued 

December 1, 2016).

21 K.W., Docket No. 19-1808 (issued April2, 2020).

22 Id.

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

24 See supra note 14.

25 According to OWCP’s procedures, 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. See supra note 11 at Chapter 2.1602.4a (September 2020).

26 See supra notes 21and 23.
7

was injury free until 2007 and the [MRI scans] taken approximately [seven] years apart as well as 

the postoperative report that utilize the description of ‘frayed,’ ‘degenerative,’ and chronic 

illustrate the causative nature of this gentleman’s injury.” The Board notes, however, that the 

submission of this report does not establish clear evidence of error in OWCP’s September 20, 2018 

decision. Dr. Jimenez’ report mostly implicated a claimed August 18, 2007 injury, previously 

denied under a separate OWCP file, which is not the subject of the present case, and Dr. Jimenez 

failed to explain why the degenerative right shoulder condition observed on diagnostic testing was 

not the result of the natural progression of a nonwork-related degenerative condition. Therefore,

Dr. Jimenez’ report would not tend to raise a substantial question concerning the correctness of 

OWCP’s September 20, 2018 decision.

As noted, clear evidence of error is intended to represent a difficult standard. 27 Even a 

detailed, well-rationalized medical report, which if submitted before the denial was issued, would 

have created a conflict in medical evidence requiring further development is insufficient to 

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

as to produce a contrary conclusion. Instead, the evidence must shift the weight in appellant’s 

favor.28 Appellant has not met this standard in the present case.

The Board finds that appellant’s request for reconsideration does not demonstrate on its 

face that OWCP committed error when it found in its September 20, 2018 decision that he had not 

established an employment-related right shoulder injury.29 Therefore, OWCP properly determined 

that appellant did not demonstrate clear evidence of error in its September 20, 2018 decision.

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration, 

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

27 See supra note 24.

28 M.E., Docket No. 18-1442 (issued April22, 2019).

29 See S.F., Docket No. 09-0270 (issued August26, 2009).
8

ORDER

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

Workers’ Compensation Programs is affirmed.

Issued: November 9, 2021

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