United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

U.S. POSTAL SERVICE, BULK MAIL 

CENTER, Forest Park, IL, Employer

__________________________________________

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Docket No. 19-1961

Issued: January 28, 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

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 25, 2019 appellant filed a timely appeal from April 29 and September 9, 

2019 nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP). The most 

recent merit decision was a Board decision dated March 10, 1999, which became final after 30 

days of issuance and is not subject to further review.1 As there is no merit decision by OWCP 

issued within 180 days of the filing of this appeal, the Board lacks jurisdiction to review the merits 

of the case pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3.

 

1 20 C.F.R. § 501.6(d); see P.S., Docket No. 18-0718 (issued October 26, 2018); T.B., Docket No. 15-0001 (issued 

July 1, 2015); C.M., Docket No. 15-0471 (issued April 27, 2015); D.A., Docket No. 08-1217 (issued October 6, 2008).

2 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether OWCP properly denied appellant’s September 20, 2018 and 

August 29, 2019 requests for reconsideration, finding that they were untimely filed and failed to 

demonstrate clear evidence of error.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decisions and orders are incorporated herein by reference. The relevant facts 

are as follows.

On September 30, 1987 appellant, then a 28-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that he sustained left carpal tunnel syndrome causally related 

to factors of his federal employment. OWCP accepted the claim for left carpal tunnel syndrome. 

Appellant stopped work on October 9, 1987.

On July 6, 1988 the employing establishment offered appellant a position as a modified 

custodial laborer. The position required intermittent standing and walking, lifting no more than 

10 pounds, and occasional reaching above the shoulder. The duties of the position included 

cleaning tables and chairs in the lunchroom and spot sweeping bathroom floors. 

On November 16, 1988 Dr. James D. Schlenker, a Board-certified surgeon, found that 

appellant could return to full-time duties as described, effective October 31, 1988. Appellant 

returned to work on November 4, 1988 as a modified custodial laborer.

4

 

 

3 Docket No. 90-0321 (issued April 5, 1990); Order Dismissing Appeal, Docket No. 95-0082 (issued July 11, 1995); 

Docket No. 97-0670 (issued March 10, 1999), denied petition for recon, Docket No. 97-0670 (issued August 19, 

1999); Order Dismissing Appeal, Docket No. 00-2532 (issued January 31, 2001); Order Dismissing Appeal, Docket 

No. 02-1467 (issued January 22, 2002); Docket No. 02-1032 (issued October 22, 2002); Order Remanding Case, 

Docket No. 02-1209 (issued October 28, 2002); Order Dismissing Appeal, Docket No. 02-1143 (issued April 13, 

2002); Order Granting Petition for Reconsideration, Docket No. 02-1467 (issued December 16, 2002); Order 

Dismissing Appeal, Docket No. 02-1467 (issued January 23, 2003); Docket No. 04-0757 (issued May 2, 2005); Order 

Dismissing Appeal, Docket No. 06-0457 (issued March 21, 2006); Order Dismissing Appeal, Docket No. 07-0068 

(issued January 29, 2007); Order Dismissing Appeal, Docket No. 07-1774 (issued May 21, 2008); Docket No. 

09-0151 (issued October 21, 2009), denied petition for recon., Docket No. 09-0151 (issued April 13, 2010); Order 

Dismissing Appeal, Docket No. 11-0007 (issued June 11, 2011); Docket No. 10-2320 (issued July 19, 2011), denied 

petition for recon., Docket No. 10-2320 (issued January 25, 2012); Docket No. 12-0174 (issued July 25, 2012); Order 

Dismissing Appeal, Docket No. 12-1967 (issued March 1, 2013); Order Remanding Case, Docket No. 13-1383 (issued 

December 16, 2013); Docket No. 14-0759 (issued July 1, 2014); Docket No. 15-0426 (issued April 20, 2015); Docket 

No. 16-0270 (issued April 26, 2016); Order Dismissing Appeal, Docket No. 17-0761 (issued June 20, 2017); Docket 

No. 18-0075 (issued April 11, 2018); Order Dismissing Appeal, Docket No. 18-1245 (issued November 9, 2018); and 

Order Dismissing Appeal, Docket No. 19-1254 (issued June 25, 2019).

4 By decision dated August 9, 1989, OWCP granted appellant a schedule award for seven percent permanent 

impairment of the left upper extremity. By decision dated April 5, 1990, the Board affirmed the August 9, 1989 

decision. Docket No. 90-0321 (issued April 5, 1990). 
3

On March 1, 1989 the employing establishment asked Dr. Schlenker to address whether 

appellant could perform additional job duties to include sweeping, dusting, and washing sinks and 

toilets.

On March 1, 1989 the employing establishment denied appellant’s request for 

reassignment to a different work schedule. 

Appellant stopped work on March 16, 1989, advising the employing establishment that he 

would not return until he was placed back on his original tour schedule, and preferably with a 

position in his own craft. On September 14, 1989 the employing establishment removed him from 

employment effective June 9, 1989 for unauthorized absence since March 1989. 

On February 17, 1991 Dr. Timothy Norton, a Board-certified orthopedic surgeon serving 

as a district medical adviser (DMA), found that appellant could perform the modified position as 

set forth, but that additional duties like washing sinks and toilets would require too much repetitive 

movement. On May 2, 1991 the employing establishment advised that it had not assigned him 

additional duties, but continued with the duties provided in the July 6, 1988 offered position. It 

asserted that appellant had stopped work because he did not like his shift hours. 

By decision dated July 6, 1992, OWCP denied appellant’s request for wage-loss 

compensation beginning March 16, 1989. It found that the employing establishment provided him 

with work within his restrictions and that he stopped work for reasons unrelated to his employment 

injury. By decisions dated August 15, 1994 and October 27, 1995, OWCP denied modification of 

its finding that appellant had not established disability from work on or after March 16, 1989. By 

decision dated August 10, 1996, it modified its October 27, 1995 decision to reflect that he had 

performed duties not specifically approved by his physician. OWCP noted, however, that the there 

was no evidence supporting that theses duties exceeded the restrictions set forth by Dr. Schlenker. 

It found that the medical evidence of record was insufficient to establish that appellant was 

disabled from his modified employment beginning March 16, 1989. Appellant requested 

reconsideration. By decision dated November 13, 1996, OWCP denied his request for 

reconsideration, finding that he had not raised an argument or submitted evidence sufficient to 

warrant reopening his case for further merit review under 5 U.S.C. § 8128(a).

By decision dated March 10, 1999, the Board affirmed the August 10 and November 13, 

1996 OWCP decisions.5 The Board determined that appellant had not established that he worked 

outside of his restrictions. The Board further found that the medical evidence of record was 

insufficient to establish show that he was disabled from his limited-duty position beginning 

March 16, 1989.

By decision dated October 22, 2002, the Board affirmed March 14 and November 29, 2001 

and March 5, 2002 OWCP decisions denying appellant’s requests to reopen his case for further 

merit review pursuant to 5 U.S.C. § 8128(a).6 In decisions dated May 2, 2005, October 21, 2009, 

July 19, 2011, and July 25, 2012, the Board affirmed OWCP decisions denying his requests for 

 

5 Docket No. 97-0670 (issued March 10, 1999). 

6 Docket No. 02-1032 (issued October 22, 2002).
4

reconsideration on the grounds they were untimely filed and failed to demonstrate clear evidence 

of error.7 In an order dated December 16, 2013, the Board set aside a May 10, 2013 nonmerit 

decision denying appellant’s request for reconsideration under section 8128(a) and remanded the 

case for OWCP to apply the standards for untimely requests for reconsiderations.8 On July 1, 2014 

and April 20, 2015 the Board affirmed OWCP nonmerit decisions finding that his requests for 

reconsideration were untimely filed and failed to demonstrate clear evidence of error.9 

By decision dated April 26, 2016, the Board affirmed a November 16, 2015 OWCP 

nonmerit decision that again denied appellant’s request for reconsideration as it was untimely filed 

and failed to demonstrate clear evidence of error.10 The Board reviewed his contention that OWCP 

erred in failing to consider that the employing establishment withdrew his limited-duty position, 

noting that it had previously addressed this argument and that it was thus res judicata.

11

 

By decision dated April 11, 2018, the Board affirmed a September 29, 2017 OWCP 

decision denying appellant’s request for reconsideration as untimely filed and failing to 

demonstrate clear evidence of error.

12

On May 17, 2018 appellant again requested reconsideration. He argued that OWCP should 

have referred him for a work capacity evaluation. Appellant also maintained that the August 10, 

1996 decision indicated that he performed duties not approved by his physician. 

By decision dated May 23, 2018, OWCP denied appellant’s request for reconsideration, 

finding that it was untimely filed and failed to demonstrate clear evidence of error.13 

On September 20, 2018 appellant again requested reconsideration. He contended that 

OWCP had withheld evidence from Dr. Schlenker, noting that it had provided questions and a 

statement of accepted facts (SOAF) to the DMA, but not to his physician. Appellant asserted that 

a conflict existed between Dr. Schlenker and the DMA regarding whether he could perform the 

 

7 Docket No. 04-0757 (issued May 2, 2005); Docket No. 09-0151 (issued October 21, 2009); Docket No. 10-2320 

(issued July 19, 2011); Docket No. 12-0714 (issued July 25, 2012). On January 25, 2010 the Board denied appellant’s 

petition for reconsideration of its July 19, 2011 decision. Order Denying Petition for Reconsideration, Docket No. 

10-2320 (issued January 25, 2012). On March 1, 2013 the Board dismissed appellant’s appeal of an information letter. 

Order Dismissing Appeal, Docket No. 12-1967 (issued March 1, 2013).

8 Order Remanding Case, Docket No. 13-1383 (issued December 16, 2013).

9 Docket No. 14-0759 (issued July 1, 2014); Docket No. 15-0426 (issued April 20, 2015. The Board denied 

appellant’s petition for reconsideration on October 27, 2015. Order Denying Petition for Reconsideration, Docket 

No. 15-0426 (issued October 27, 2015). 

10 Docket No. 16-0270 (issued April 26, 2016). 

11 On February 21, 2017 appellant sought an appeal before the Board from a purported December 19, 2016 decision. 

In an order dated June 20, 2017, the Board dismissed his appeal as there was no final adverse decision over which it 

had jurisdiction. Order Dismissing Appeal, Docket No. 17-0761 (issued June 20, 2017).

12 Docket No. 18-0075 (issued April 11, 2018).

13 Appellant appealed the May 23, 2018 decision to the Board; however, he subsequently requested that the appeal 

by dismissed. Order Dismissing Appeal, Docket No. 18-1245 (issued November 9, 2018).
5

modified position. He advised that in its August 10, 1996 decision OWCP acknowledged that his

physician had not reviewed all the duties of the position he returned to on November 5, 1988. 

Appellant asserted that a June 14, 1996 union document established that he had to perform duties 

outside those set forth in the July 6, 1988 job offer.14

By decision dated April 29, 2019, OWCP denied appellant’s September 20, 2018 request 

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

error. 

OWCP subsequently received a report dated August 14, 2019, wherein Dr. Salman 

Chaudri, an osteopath, advised that he had reviewed some of Dr. Schlenker’s medical reports and 

other factual evidence. Dr. Chaudri opined that the duties of stocking custodial supplies and 

cleaning tables and chairs four to six hours per day were outside appellant’s work capacity due to 

their repetitive nature. He further found that the duties exceeded the restrictions set forth by his 

attending physician. Dr. Chaudri related that the additional duties “would have been too much for 

his condition and would likely aggravate the condition of his hands and cause recurrent problems.”

Appellant, on August 29, 2019, requested reconsideration. He argued that the August 14, 

2019 report from Dr. Chaudri established that he was unable to perform the duties of the modified 

position. Appellant noted that on February 17, 1991 a DMA had found that he could not perform 

additional duties as they were repetitive and would aggravate his condition. He described the 

evidence reviewed by Dr. Chaudri in reaching his conclusion. Appellant discussed reports from

Dr. Schlenker dated June 7, 1988, February 24, 1989, and September 14, 1990 and the June 14, 

1996 statement from the union president.

By decision dated September 9, 2019, OWCP denied appellant’s August 29, 2019 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.15 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.16 Timeliness is determined by the document receipt date (i.e., 

 

14 In a June 14, 1996 statement, union president J.W., related that she had worked with appellant from approximately 

November 1988 to March 1989. She indicated that he was assigned to maintain supply cages and clean tables and 

chairs in the lunchroom for four to six hours per day. J.W. advised that appellant had to unpack, lift, and arrange 

custodial supplies.

15 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).

16 20 C.F.R. § 10.607(a).
6

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).17 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.18

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.19 OWCP’s 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.20 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.21

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

issue which was decided by OWCP.22 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 

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.23

OWCP 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 (for example, proof that a schedule award was miscalculated). 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 

 

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

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

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

19 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).

20 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See 

also 20 C.F.R. § 10.607(b); supra note 17 at Chapter 2.1602.5 (February 2016).

21 J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

22 S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 17 at Chapter 2.1602.5(a) (February 2016).

23 C.M., Docket No. 19-1211 (issued August 5, 2020).
7

error.24 The Board makes an independent determination of whether a claimant has demonstrated 

clear evidence of error on the part of OWCP.25

ANALYSIS

The Board finds that OWCP properly denied appellant’s September 20, 2018 and 

August 29, 2019 requests for reconsideration as they were untimely filed.

OWCP’s regulations26 and procedures27 establish a one-year time limit for requesting 

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

reconsideration within one year also accompanies any subsequent merit decision on the issues.28 

The most recent merit decision was the Board’s March 10, 1999 decision. As appellant’s 

September 20, 2018 and August 29, 2019 requests for reconsideration were received more than 

one year after the March 10, 1999 merit decision, the Board finds that they were untimely filed. 

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

for compensation beginning March 16, 1989.

29

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

evidence of error on the part of OWCP.

In his September 20, 2018 reconsideration request, appellant contended that OWCP erred 

in failing to provide Dr. Schlenker with a SOAF and questions. He maintained that a conflict 

existed between Dr. Schlenker and the DMA. Appellant further asserted that OWCP, in its 

August 10, 1996 decision, had found that he was performing duties not listed in the offered position 

or approved by his physician and that a June 14, 1996 statement supported that he worked outside 

the duties provided in the July 6, 1988 job offer. The Board, however, in its March 10, 1999 

decision previously considered the evidence from Dr. Schlenker, the February 17, 1991 report 

from the DMA, the findings by OWCP in its August 10, 1996 decision, and the June 14, 1996 

statement from J.W., the union president. Findings made in prior Board decisions are res judicata

absent further merit review by OWCP.30 Therefore, appellant’s assertions are insufficient to 

demonstrate clear evidence of error.

 

24 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 17 at Chapter 2.1602.5(a) (February 2016).

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

26 20 C.F.R. § 10.607(a); see J.W., Docket No. 18-0703 (issued November 14, 2018); Alberta Dukes, 56 ECAB 

247 (2005).

27 Supra note 17 at Chapter 2.1602.4 (February 2016); Veletta C. Coleman, 48 ECAB 367, 370 (1997).

28 20 C.F.R. § 10.607(b); see A.M., Docket No. 20-0143 (issued October 28, 2020); Debra McDavid, 57 ECAB 

149 (2005).

29 Id. at § 10.607(b); see M.W., Docket No. 17-0892 (issued May 21, 2018); see S.M., Docket No. 16-0270 (issued 

April 26, 2016).

30 See V.G., Docket No. 19-0038 (issued June 18, 2019); B.W., Docket No. 17-0366 (issued June 7, 2017).
8

In support of his August 29, 2019 request for reconsideration, appellant submitted an 

August 14, 2019 report from Dr. Chaudri. Dr. Chaudri opined that the stocking custodial supplies 

and cleaning tables and chairs four to six hours per day constituted repetitive work outside the 

restrictions found by Dr. Schlenker. He noted that the additional duties would likely have 

aggravated his hand condition and resulted in recurrent problems. The Board finds that

Dr. Chaudri’s opinion is insufficient to demonstrate clear evidence of error by OWCP. As 

discussed, clear evidence of error is intended to represent a difficult standard.31 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 not clear evidence of error.32 

Dr. Chaudri’s opinion fails to manifests on its face that OWCP committed an error in denying 

appellant’s claim and is thus insufficient to demonstrate clear evidence of error by OWCP in 

finding that he had not established that he was disabled from his limited-duty position beginning 

March 16, 1989.

Appellant again argued in his August 29, 2019 reconsideration request that the DMA found 

that he could not perform additional duties, and that the February 24, 1989, and September 14, 

1990 reports from Dr. Schlenker and the June 14, 1996 statement from the union president

established that he could not perform the modified position. The Board, however, has previously 

considered this evidence. The Board found that this evidence was insufficient to show that 

appellant was disabled from his modified employment beginning March 16, 1989 is res judicata

absent further merit review by OWCP.33 

Appellant further referenced a June 7, 1988 form report from Dr. Schlenker; however, this 

evidence is not relevant to the issue of whether he could perform the duties of his modified position 

effective March 16, 1989. To establish clear evidence of error, a claimant must submit evidence 

relevant to the issue that was decided by OWCP.34 

Appellant has not provided evidence of sufficient probative value or raised a substantial 

question as to the correctness of OWCP’s decision. Thus, the Board finds that he has not 

demonstrated clear evidence of error.35

On appeal appellant reiterated arguments previously raised in his reconsideration requests. 

As explained above, they are insufficient to demonstrate clear evidence of error. 

 

31 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).

32 Id.; see also Leona N. Travis, 43 ECAB 227 (1999).

33 See B.W., Docket No. 17-0366 (issued June 7, 2017).

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

35 See M.B., Docket No. 17-1505 (issued January 9, 2018).
9

CONCLUSION

The Board finds that OWCP properly denied appellant’s September 20, 2018 and 

August 29, 2019 requests for reconsideration as they were untimely filed and failed to demonstrate 

clear evidence of error.

ORDER

IT IS HEREBY ORDERED THAT the September 9 and April 29, 2019 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: January 28, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board