United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland, OH, Employer

__________________________________________

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Docket No. 20-1651

Issued: May 6, 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

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On September 21, 2020 appellant filed a timely appeal from a September 15, 2020 

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

days has elapsed from OWCP’s last merit decision, dated March 9, 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.

ISSUE

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

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

FACTUAL HISTORY

On January 30, 2018 appellant, then a 51-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on January 29, 2018 he was physically assaulted on his mail route 

and sustained a fractured nose, injuries to his face, mouth, eyes, and back while in the performance 

 

1 5 U.S.C. § 8101 et seq.
2

of duty. On the reverse side of the claim form appellant’s supervisor noted that appellant was 

injured in the performance of duty. Appellant stopped work on January 29, 2018.

In a state workers’ compensation form dated January 29, 2018, a healthcare provider whose 

signature was illegible, noted that appellant was treated for multiple injuries sustained in a physical 

assault. Appellant reported working as a mail carrier and, while delivering mail on January 29, 

2018, he was physically assaulted. He was diagnosed with a nasal fracture and physical assault. 

In an unsigned physician’s report of work ability dated January 29, 2018, appellant was reportedly 

hit in the nose, mouth, head, and experienced back pain from the incident. Similarly, in a return 

to work note dated January 29, 2018, the provider noted: appellant sought emergency room

treatment; was held off work on January 30, 2018; and returned to work on February 1, 2018.

In a development letter dated February 6, 2018, OWCP informed appellant that the 

evidence of record was insufficient to establish his traumatic injury claim. It noted that the 

evidence of record was insufficient to establish that he actually experienced the incident alleged 

to have caused his injury and no diagnosis of any condition related to his injury was provided.

OWCP requested medical evidence and provided a questionnaire seeking further information 

including a description of events, a list of witnesses, and any investigative a police report related 

to the January 29, 2018 employment incident. It afforded appellant 30 days to submit the necessary 

evidence.

In an emergency room report dated January 29, 2018, Dr. Kirk Stiffler, Board-certified in 

emergency medicine, treated appellant for facial pain, headache, and back pain. Appellant 

reported working as a mail carrier when he was assaulted with a closed fist by an individual while 

on his route. He alleged that he was punched repeatedly in the face and head. Findings on 

examination revealed diffuse bilateral lumbar paraspinal tenderness with palpation, tenderness of 

the anterior aspect of the right shoulder, and limited range of motion. An x-ray of the right shoulder 

revealed no acute fracture or dislocation. A computerized tomography (CT) scan of the facial 

bones revealed acute minimally displaced left and right nasal bone fractures. Dr. Stiffler 

diagnosed acute nasal fracture, physical assault, and lumbar strain. He discharged appellant and 

recommended that he follow-up with an otolaryngologist.

By decision dated March 9, 2018, OWCP denied appellant’s traumatic injury claim, finding 

that the evidence submitted was insufficient to establish the factual component of fact of injury 

because he failed to submit the requested written statements, including a police report, to clearly 

establish fact of injury. It concluded, therefore, that the requirements had not been met to establish 

an injury as defined under FECA.

OWCP continued to receive evidence. Appellant resubmitted the following medical 

reports previously of record: emergency room records from Dr. Stiffler dated January 29, 2018; 

an x-ray of his right shoulder dated January 29, 2018; a CT scan of facial bones of even date; a

state workers’ compensation form of even date; an unsigned physician’s report of work ability 

dated January 29, 2018; and a return to work note dated January 29, 2018. These documents were 

initially submitted on February 2 and 16, 2018.

By appeal request form postmarked August 13, 2020, received by OWCP on August 18, 

2020, appellant requested both an oral hearing and reconsideration.
3

In an undated statement received by OWCP on August 31, 2020, appellant withdrew his 

hearing request and requested only reconsideration.

By decision dated September 15, 2020, 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,2 OWCP has the discretion to reopen a case for further

merit review.3 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.4 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).5 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.6

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

a claimant’s request for reconsideration is untimely filed, OWCP must nevertheless undertake a 

limited review to determine whether it demonstrates clear evidence of error.7 If a request 

demonstrates clear evidence of error, it will reopen the case for merit review.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.10 Evidence which does not raise a 

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

clear evidence of error.11 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.12 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 

 

2 5 U.S.C. § 8101 et seq.

3

Id. at § 8128(a); P.J., Docket No. 19-1479 (issued May 8, 2020); J.W., Docket No. 18-0703 (issued 

November 14, 2018).

4 20 C.F.R. § 10.607(a).

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

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

7 20 C.F.R. § 10.607(b); C.M., id.

8 See also id. at § 10.607(b); supra note 5 at Chapter 2.1602.5 (September 2020).

9

J.S., Docket No. 20-0337 (issued July 15, 2020).

10 Id.

11 Id.

12 Id.
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the new evidence demonstrates clear error on the part of OWCP.13 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.14

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

difficult standard.15 The claimant must present evidence which on its face shows 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 insufficient to demonstrate clear evidence of error.16 The Board makes an 

independent determination of whether a claimant has demonstrated clear evidence of error on the 

part of OWCP.17

ANALYSIS

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

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

OWCP’s regulations provide that the one-year time limitation period for requesting 

reconsideration begins on the date of the last merit decision.18 The last merit decision was dated 

March 9, 2018. Because appellant’s request for reconsideration was first received on August 18, 

2020, more than one year after the March 9, 2018 merit decision, the Board finds that their request

was untimely filed.19 Therefore, appellant must demonstrate clear evidence of error on the part of 

OWCP.20

The Board finds that appellant failed to demonstrate clear evidence of error.

On reconsideration appellant submitted several medical reports to OWCP. These reports, 

however, were previously of record. Emergency room records from Dr. Stiffler dated January 29, 

2018, an x-ray of his right shoulder dated January 29, 2018; a CT scan of facial bones of even date; 

a state workers’ compensation form of even date; an unsigned physician’s report of work ability 

dated January 29, 2018; and a return to work note dated January 29, 2018. These documents were 

previously reviewed by OWCP in its March 9, 2018 decision. The Board, therefore, finds that this 

 

13 Id.

14 See C.M., supra note 6.

15 Supra note 5 at Chapter 2.1602.4(b) (February 2016).

16 C.M., supra note 6.

17 Id.

18 20 C.F.R. § 10.607(a).

19 Id.

20 20 C.F.R. § 501.6(d); see R.T., Docket No. 20-0298 (issued August 6, 2020); G.G., Docket No. 18-1074 (issued 

January 7, 2019).
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previously submitted evidence does not raise a substantial question concerning the correctness of 

OWCP’s decision and is insufficient to demonstrate clear evidence of error.21

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the September 15, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 6, 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

 

21 C.M., supra note 6.