United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.G., Appellant

and

U.S. POSTAL SERVICE, PALM BAY WEST 

POST OFFICE, Palm Bay, FL, Employer

__________________________________________

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Docket No. 21-0893

Issued: December 27, 2021

Appearances: Case Submitted on the Record

Gary L. Drake, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 20, 2021 appellant, through her representative, filed a timely appeal from an 

April 21, 2021 nonmerit decision of the Office of Workers’Compensation Programs (OWCP). As 

more than 180 days elapsed from the last merit decision dated January 29, 2020 to the filing of this 

appeal, pursuant to the Federal Employees’Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) 

and 501.3, the Board lacks 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

5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether OWCP properly denied appellant’s February 1, 2021 request for 

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

FACTUAL HISTORY

On November 13, 2019 appellant, then a 35-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on November 7, 2019 she was involved in a motor vehicle 

accident and sustained injuries to her neck, back, and shoulder, while in the performance of duty. 

She stopped work on November 13, 2019.

In a December 18, 2019 development letter, OWCP advised appellant that additional 

factual and medical evidence was necessary to establish her claim. It noted that no medical report 

had been received,which provided a diagnosis of any condition resulting from the alleged incident. 

OWCP afforded appellant 30 days to respond.

Appellant submitted medical evidence in support of her claim, which included a 

November 18, 2019 note by Dr. Stephen H. Canuel, a chiropractor, wherein he held appellant off

work from November 17 to 29, 2019. Progress notes dated November 20, 2019 from Dr.Brian C. 

Dowdell, Board-certified in pain medicine, noted that appellant had been involved in a motor 

vehicle accident and that she was seen for back pain. Dr. Dowdell related diagnoses of cervical 

facet syndrome, strain of neck muscle, lumbar facet joint syndrome, strain of lumbar region, 

cervical radiculopathy, lumbar radiculopathy, cervical disc displacement, and visual aura and light 

sensitivity. OWCP also received a November 19, 2019 x-ray of appellant’s lumbar spine and 

November 19, 2019 magnetic resonance imaging (MRI) scans of her cervical and lumbar spines.

By decision dated January 29, 2020, OWCP denied appellant’s claim. It found that the 

evidence of record was insufficient to establish causal relationship between the diagnosed 

conditions and the accepted November 7, 2019 employment incident. OWCP concluded, 

therefore, that the requirements had not been met to establish an injury or medical condition 

causally related to the accepted employment incident.

Appellant subsequently submitted additional evidence, including February 21 and June 8, 

2020 return-to-work notes, a copy of the November 19, 2019 MRI scan of the cervical spine, a 

January 13, 2020 intraoperative neurophysiological monitoring report, an April 27, 2020 surgery 

report, and postoperative instructions for a lumbar left four to five micro-endoscopic discectomy 

with bone marrow aspiration concentrate and amnion transplant to bilateral lumbar three and four 

to five facets.

On February 1, 2021 appellant’s representative requested reconsideration. He submitted a 

report dated January 25, 2021 from Dr. Dowdell. Dr. Dowdell noted appellant’s history of injury 

and medical treatment. He provided appellant’s physical examination findings and diagnosed 

cervical facet syndrome, strain of neck muscle, lumbar facet syndrome, motor vehicle accident 

victim, cervical radiculopathy, lumbar radiculopathy, visual aura, light sensitivity, disc 

displacement cervical, and disc displacement lumbar. Dr. Dowdell opined that appellant had 

reached a medical end point and suffered a permanent aggravation of her neck pain and a 
3

permanent injury to her lower back. He opined that the injuries were causally related to her motor 

vehicle accident. Dr. Dowell also indicated that appellant would need ongoing medical treatment.

By decision dated April 21, 2021, 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.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, i.e., 

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS).5 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.6

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.7 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.8 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.9

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

issue, which was decided by OWCP.10 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 

3

Id. at § 8128(a); see T.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).

4

20 C.F.R. § 10.607(a).

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

6 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).

7

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).

8 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 5 at Chapter 2.1602.5 (February 2016).

9

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

10 S.C.,Docket No. 18-0126 (issued May 14, 2016); supranote 5 at Chapter 2.1602.5(a) (February2016).
4

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.11

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 (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 

error.12 The Board makes an independent determination of whether a claimant has demonstrated 

clear evidence of error on the part of OWCP.13

ANALYSIS

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

reconsideration was untimely filed. The last merit decision was dated January 29, 2020. As her 

request for reconsideration was not received by OWCP until February 1, 2021, more than one-year 

after January 29, 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.14

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.15 As noted, section 8124(a) of FECA provides that OWCP shall determine and make 

a finding of fact and make an award for or against payment of compensation.16 Its regulations at 

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

facts and a statement of reasons.17 As well, OWCP’s procedures provide that the reasoning behind 

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

12 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 5 at Chapter 2.1602.5(a) (February 2016).

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

14 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).

15 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).

16 5 U.S.C. § 8124(a).

17 20 C.F.R. § 10.126.
5

OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the 

claim and the kind of evidence which would overcome it.18

In the April 21, 2021 decision, OWCP did not mention or address any of the medical 

reports received since the January 29, 2020 decision. It failed to analyze this evidence as to 

whether it was sufficient to demonstrate clear evidence of error. The Board finds that OWCP 

failed to properly explain the findings with respect to the issue presented so that appellant could 

understand the basis for the decision, i.e., whether she had demonstrated clear evidence that 

OWCP’s last merit decision was incorrect.

The case must, therefore, be remanded for findings of fact and a statement of reasons, to 

be followed by 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.

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

decisions should contain findings of fact sufficient to identify the benefit being denied and t he reason for the 

disallowance).
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ORDER

IT IS HEREBY ORDERED THAT the April 21, 2021 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part. The case is remanded for further 

proceedings consistent with this decision of the Board.

Issued: December 27, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board