United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Lynbrook, NY, Employer

__________________________________________

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Docket No. 19-1424

Issued: September 15, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 17, 20191appellant filed a timely appeal from a December 17, 2018 nonmerit 

decision of the Office of Workers’ Compensation Program (OWCP).2 As more than 180 days has 

elapsed from OWCP’s last merit decision, dated November 16, 2017, to the filing of this appeal, 

 

1 A claimant has 180 days from the date of OWCP’s decision to timely file an appeal. 20 C.F.R. § 501.3(e). One 

hundred and eighty days from the December 17, 2018 decision expired on Saturday, June 15, 2019. If the last day to 

file an appeal falls on a Saturday, Sunday, or federal holiday, the 180-day period runs until the close of the next 

business day. 20 C.F.R. § 501.3(f)(2). The appeal in this case, received by the Board on Monday, June 17, 2019 was 

therefore timely filed.

2 Appellant timely requested oral argument pursuant to the Board’s Rules of Procedure. 20 C.F.R. § 501.5(b). By 

order dated September 8, 2020, the Board exercised its discretion and denied the request, finding that the arguments 

on appeal could adequately be addressed based on the case record. Order Denying Request for Oral Argument, Docket 

No. 19-1424 (issued September 8, 2020).
2

pursuant to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board lacks jurisdiction over the merits of the case.4

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.

FACTUAL HISTORY

On June 28, 2016 appellant, then a 59-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on June 27, 2016 she injured her right knee when she stepped off a 

stoop while in the performance of duty. She indicated that after her injury her right knee began to 

swell. Appellant stopped work that day. 

In a June 27, 2016 attending physician’s report,5 Dr. Iquinder Singh, a Board-certified 

family physician, noted a history that appellant felt a crack in her right knee. She diagnosed right 

knee pain and checked a box marked “Yes,” indicating that the condition was employment related. 

Dr. Singh advised that appellant should return in two days for work clearance. She also provided 

a work excuse of even date. Dr. Singh asked that appellant be excused from work on June 28 

and 29, 2016, noting that appellant was seen on June 27, 2016 for a “medical concern.” 

In a duty status report (Form CA-17) dated June 30, 2016, Dr. Zoila Flores, an osteopath 

who practices family medicine, indicated that appellant could not work and that she was unable to 

determine when appellant could return to work. In a second form report of even date, she reported 

a date of injury of June 27, 2016 and diagnosed right knee pain. Dr. Flores indicated that appellant 

could return to work on July 5, 2016. 

The employing establishment controverted the claim. In a June 29, 2016 correspondence, 

an injury compensation specialist noted that, two months prior, appellant had been cleared for full 

duty, however, she had been unable to complete her full route without assistance. The specialist 

indicated that, on the date of the alleged injury, appellant was instructed to deliver a 2-hour 

20-minute walking route, but only delivered the business portion and did not deliver her walking 

piece, returning to the employing establishment to report her injured knee. The specialist also 

indicated that the employing establishment believed that the claim was fraudulent. A job 

 

3 5 U.S.C. § 8101 et seq.

4 The Board notes that appellant submitted additional evidence on appeal. 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. 

5 This report, designated as Part B, was attached to an unsigned Authorization for Examination and/or Treatment 

(Form CA-16). 
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description for city carrier was attached. The record reflects that appellant has two separate 

accepted claims. 

In a development letter dated July 1, 2016, OWCP informed appellant that the evidence 

submitted was insufficient to establish her claim. It advised her of the type of factual and medical 

evidence necessary to establish her claim and attached a questionnaire for her completion. OWCP 

afforded appellant 30 days to submit the necessary evidence.

Appellant returned to full-time regular duty on July 5, 2016. 

In a treatment note dated July 25, 2016, Dr. Robert Garroway, a Board-certified orthopedic 

surgeon, noted a history that appellant felt a pop in her right knee when she twisted her knee 

descending stairs while at work on June 27, 2016. He indicated that she was currently not working 

and that she complained of intermittent right knee pain that caused aches and difficulty walking. 

Dr. Garroway described right knee examination findings and noted that a right knee x-ray taken 

that day showed degenerative change and lateral joint space narrowing. He diagnosed right knee 

acute pain, primary osteoarthritis, and sprain. Dr. Garroway advised that the incident described 

by appellant was the competent medical cause of the injury, based on her symptoms and his 

objective findings. He advised that she could return to work with physical restrictions and

recommended a right knee magnetic resonance imaging (MRI) scan. In a Form CA-17 report of 

same date, Dr. Garroway advised that appellant could not use stairs. 

By decision dated August 17, 2016, OWCP denied the claim. It found the evidence 

insufficient to establish that the incident occurred as alleged. OWCP concluded, therefore, that 

the requirements had not been met to establish an injury as defined by FECA. 

In an August 15, 2016 report, received by OWCP on August 23, 2016 Dr. Garroway

reported his physical examination findings, and repeated appellant’s history of injury and his 

diagnoses. 

On September 13, 2016 appellant requested a hearing before a representative of OWCP’s 

Branch of Hearings and Review. 

At the hearing, held telephonically on December 22, 2016 appellant testified that on 

June 27, 2016 she had delivered mail for one to two hours, working the residential walking part of 

her route, and had delivered five or six blocks prior to the injury. She stated that she ascended five 

steps to put mail in a box, and as she stepped off, she twisted her right knee, but not her leg, heard 

a pop, and felt sharp pain that escalated as she walked away. Appellant noticed that her knee was 

swelling and returned to the employing establishment. She stated that she had called a supervisor 

to report the injury, who told her to return to the employing establishment. Appellant indicated 

that all of the houses on her residential route had five to six steps, and that she still had a brace on 

her knee, which remained “a little sore.” The hearing representative advised her that Dr. Garroway 

needed to explain how the twist caused the injury, and left the record open for 30 days. 

A December 23, 2016 MRI scan of appellant’s right knee demonstrated tearing of the mid 

zone of the lateral meniscus and a probable free edge tear at the junction of the posterior horn and 

mid zone of the medial meniscus with tricompartmental chondral loss, mild subchondral edema, 

and osteophytes in the patellofemoral compartment with mild effusion, a patellofemoral synovitis, 
4

and small popliteal cyst; slight laxity of the medial collateral ligament without acute tear; and mild 

distal quadriceps tendinopathy without tear. 

In January 16 and September 13, 2016 form reports, Dr. Garroway advised that appellant 

had not reached maximum medical improvement and that her prognosis was guarded. He indicated

that she could work eight hours per day, but could not climb stairs. 

By decision dated February 13, 2017, an OWCP hearing representative affirmed the 

August 17, 2016 decision, as modified. He found that the June 27, 2016 employment incident had 

been established, but denied the claim, finding that Dr. Garroway had not provided a rationalized 

medical explanation of how the incident caused appellant’s medical condition. 

On August 21, 2017 appellant, through her representative, requested reconsideration. He 

submitted a March 27, 2017 report in which Dr. Garroway diagnosed tear of lateral meniscus of 

right knee. The representative opined that appellant injured her knee by twisting it while 

descending stairs completing her job duties on June 27, 2015 sic, indicating that he felt strongly 

that the injury described caused the meniscus tear. 

By decision dated November 16, 2017, OWCP denied modification of its prior decision. 

It found Dr. Garroway’s March 27, 2017 report insufficient to establish appellant’s claim because 

he failed to explain how the June 27, 2016 incident caused the diagnosed meniscus tear. 

In an April 25, 2018 treatment note, Dr. Garroway described complaints of continued knee 

pain, worse with activity, and noted that appellant was working, but avoiding stairs. He reported: 

right knee examination findings and diagnosed primary osteoarthritis of right knee; peripheral tear 

of medial meniscus, current injury, of right knee, with other tear of lateral meniscus; and acute 

pain of right knee. Dr. Garroway advised that the meniscal tears were from the 2015 injury which 

he felt was work related and that the injury also made appellant’s arthritis worse. He concluded 

that stepping down at work that could involve load and twisting of knee could cause meniscal 

tears, and that appellant described this as the mode of injury. Dr. Garroway also resubmitted a 

copy of the December 23, 2016 right knee MRI scan. 

On November 20, 2018 OWCP received appellant’s November 13, 2018 request for 

reconsideration. Appellant described the June 27, 2017 employing establishment incident,

maintained that after she felt her right knee pop she tried to continue walking and deliver mail, but 

the pain was excruciating. She indicated that she then called the employing establishment, drove 

back, and immediately sought medical attention. 

By decision dated December 17, 2018, 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 

 

6 5 U.S.C. § 8128(a); see R.K., Docket No. 19-1474 (issued March 3, 2020).
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instance, a request for reconsideration must be received within one year of the date of OWCP’s 

decision for which review is sought.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 time limitation does not constitute an 

abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.9

OWCP may not deny a request for reconsideration solely because it was untimely filed. 

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

review to determine whether the request demonstrates clear evidence of error.10 OWCP’s 

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 for reconsideration shows clear evidence of error on the part of OWCP.11

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

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

must manifest on its face that OWCP committed an error. Evidence that 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 to merely 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.12

OWCP’s procedures note and the Board has held that the term “clear evidence of error” is 

intended to represent a difficult standard. The claimant must present evidence that on its face 

shows that OWCP made an error (for example, proof that a schedule award was miscalculated). 

Evidence such as a detailed, well-rationalized medical report that, if submitted before the denial 

was issued, would have created a conflict in medical opinion requiring further development, is not 

clear evidence of error.13 The Board makes an independent determination of whether a claimant 

 

7 20 C.F.R. § 10.607(a); see T.L., Docket No. 19-1110 (issued August 11, 2020).

8 R.T., Docket No. 20-0298 (issued August 6, 2020); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.4(b) (February 2016).

9 G.L., Docket No. 18-0852 (issued January 14, 2020).

10 20 C.F.R. § 10.607(b); A.K., Docket No. 20-0003 (issued June 2, 2020); R.S., Docket No. 19-0180 (issued 

December 5, 2019).

11 Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.1602.5(a) (February 2016).

12 G.B., Docket No. 19-1762 (issued March 10, 2020); M.P., Docket No. 19-0674 (issued December 16, 2019).

13 Federal (FECA) Procedure Manual, supra note 8; supra note 9.
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has demonstrated clear evidence of error on the part of OWCP such that it abused its discretion in 

denying merit review in the face of such evidence.

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ANALYSIS

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.

OWCP’s regulations and procedures establish a one-year time limit for requesting 

reconsideration, which begins on the date of the last merit decision issued in the case.15 A right to 

reconsideration within one year also accompanies any subsequent merit decision on the issue(s).16 

The most recent merit decision regarding appellant’s claim was OWCP’s November 16, 2017 

decision. As her November 13, 2018 request for reconsideration was not received by OWCP until 

November 20, 2018, more than one year after the November 16, 2017 decision, the Board finds 

that it was untimely filed. Because appellant’s request was untimely, she must demonstrate clear 

evidence of error on the part of OWCP in denying her claim that she sustained an employment 

injury caused by the accepted June 27, 2016 employment incident.

The Board further finds that appellant’s reconsideration request failed to demonstrate clear 

evidence of error on the part of OWCP in its last merit decision.

In support of the untimely request for reconsideration, OWCP received an April 25, 2018 

treatment note from Dr. Garroway and a duplicate report of a December 13, 2016 MRI scan of 

appellant’s right knee. In his April 25, 2018 report, Dr. Garroway merely reiterated his belief that 

the June 27, 2016 incident caused her diagnosed right knee meniscal tear. The Board finds this 

evidence insufficient to demonstrate clear evidence of error in OWCP’s November 16, 2017 

decision.17 

The arguments raised in support of appellant’s untimely reconsideration request did not 

establish that OWCP erred in denying her claim. She merely again described the June 27, 2016 

incident and maintained that this caused her right knee injury. However, these arguments do not 

demonstrate clear evidence of error, as they did not raise a substantial question as to the correctness 

of OWCP’s November 16, 2017 decision.

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The Board finds that appellant has not raised an argument or submitted positive, precise, 

and explicit evidence that manifests on its face that OWCP committed an error in the denial of her 

claim.19 Appellant has therefore not provided evidence of sufficient probative value to raise a 

 

14 T.N., Docket No. 18-1613 (issued April 29, 2020).

15 Supra notes 7, 8, and 9.

16 L.F., Docket No. 19-0324 (issued January 2, 2020).

17 M.C., Docket No. 18-1659 (issued December 2, 2019).

18 Supra note 9.

19 U.C., Docket No. 19-1753 (issued June 10, 2020).
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substantial question as to the correctness of OWCP’s November 16, 2017 decision. Thus, the 

Board finds that the request failed to demonstrate clear evidence of error.20

CONCLUSION

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

merits of her claim as it was untimely filed and failed to demonstrate clear evidence of error.

ORDER

IT IS HEREBY ORDERED THAT the December 17, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 15, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

20 Id.