United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Saint Louis, MO, Employer

__________________________________________

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Docket No. 21-1137

Issued: January 26, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On July 22, 2021 appellant, through counsel, filed a timely appeal from a June 28, 2021

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

days has elapsed from OWCP’s last merit decision, dated January 26, 2018, to the filing of this

appeal, pursuantto the FederalEmployees’CompensationAct2(FECA) and 20C.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 request for reconsideration, 

finding that it was 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 are incorporated herein by reference. The relevant facts are as 

follows.

On August 14, 2017 appellant, then a 59-year-old mail carrier, filed an occupational 

disease claim (Form CA-2) alleging that he developed right carpal tunnel syndrome and right 

cubital tunnel syndrome as a result of constant lifting and carrying of packages weighing up to 10 

pounds, pushing and pulling tubs of mail, and sorting mail for 10 to 12 hours per day, six days per 

week, while in the performance of duty. He noted that he first became aware of his claimed

condition, and its relationship to factors of his federal employment on January 5, 2015. On the 

reverse side of the claim form the employing establishment indicated that appellant was last 

exposed to the factors alleged to have caused his condition on August 14, 2017.

In a report dated March 10, 2017, Dr. Siddharth Kaul, a Board-certified neurologist, noted 

that an electromyogram/nerve conduction velocity (EMG/NCV)study showed moderate-to-severe 

sensory demyelinating-type neuropathy of the median nerve at the wrist and chronic denervation 

patterns in the abductor pollicis brevis consistent with median neuropathy. He found that the 

findings were significant for the presence of right-sided carpal tunnel syndrome. 

In a report dated March 20, 2017, Dr. Fallon Maylock, an orthopedic surgeon, examined 

appellant and diagnosed carpal tunnel syndrome of the right wrist and right cubital tunnel 

syndrome.

In a report dated June 22, 2017, Dr. Maylock opined that appellant’s employment duties 

were responsible for his right carpal tunnel syndrome, and that his condition required surgery. He 

noted that he had worked in a physical job for 40 years that required repetitive lifting, pushing, 

pulling, and heavy physical activity.

By decision dated January 26, 2018, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that the events surrounding the claimed condition 

occurred as he described. 

On February 16, 2018 appellant requested reconsideration of the January 26, 2018 decision 

and submitted additional evidence in support of his claim, including another copy of

Dr. Maylock’s June 22, 2017 report and his own narrative statement dated February 2, 2018. 

3 Docket No. 18-1660 (issued March 14, 2019); Docket No. 20-1658 (issued April15, 2021).
3

By decision dated May 16, 2018, OWCP denied appellant’s request for reconsideration, 

finding that the evidence submitted was insufficient to warrant review of its January 26, 2018 

decision.

On September 19, 2018 appellant filed a timely appeal to the Board from OWCP’s May 16, 

2018 decision.

By decision dated March 14, 2019, the Board affirmed OWCP’s May 16, 2018 decision, 

finding that OWCP properly denied appellant’s request for reconsideration of the merits of his 

claim pursuant to 5 U.S.C. § 8128(a). 

OWCP subsequently received additional medical evidence. In a July 3, 2018 narrative 

report, Dr. Bruce Schlafly, an orthopedic hand surgeon, noted a history of pain, numbness, and 

tingling in the right hand since 2015, which had worsened in late 2016. He related that appellant 

had worked as a mail carrier for 36 years, and that his job duties included repetitive grasping of 

bundles of mail, sorting mail for 2.5 hours per day, and walking, driving and delivering mail for 5

hours per day. Dr. Schlafly reviewed the March 10, 2017 EMG/NCV study and performed a 

physical examination, which revealed atrophy of the thenar muscles of the right hand, positive 

Tinel’s sign at the median nerve, and positive Phalen’s test at the right wrist. He diagnosed severe 

right carpal tunnel syndrome and opined that the condition was caused by appellant’s employment 

duties since 2016. 

On August 21, 2020 appellant, through counsel, again requested reconsideration. 

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

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

By decision dated April 15, 2021, the Board affirmed OWCP’s August 28, 2020 decision 

in part, finding that OWCP properly determined that appellant’s August 21, 2020 request for 

reconsideration was untimely filed. The Board, however, also set aside OWCP’s August 28, 2020 

decision in part, finding that OWCP did not make sufficient findings regarding the evidence 

submitted in support of the reconsideration request. The case was remanded for an appropriate 

decision on appellant’s untimely reconsideration request, including a description of the evidence 

submitted on reconsideration and detailed reasons for accepting or rejecting the reconsideration 

request.

By decision dated June 28, 2021, OWCP again denied appellant’s request for 

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

LEGAL PRECEDENT

To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a 

request for reconsideration must be received by OWCP 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 is indicated by the “received date” in the Integrated Federal 

4

20 C.F.R. § 10.607(a). 
4

Employees’ Compensation System (iFECS).5 The Board has found that the imposition of the oneyear time limitation does not constitute an abuse of the discretionary authority granted OWCP 

under section 8128(a) of FECA.6

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. 7 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 claimant’s 

request for reconsideration demonstrates clear evidence of error on the part of OWCP. 8

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

issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest 

on its face that OWCP committed an error.9 Evidence that does not raise a substantial question as 

to the correctness of OWCP’s decision is insufficient to demonstrate clear evidence of error.10 It 

is not enough merely to show that the evidence could be construed so as to produce a contrary 

conclusion.11 This entails a limited review by OWCP of the evidence previously of record and 

whether the new evidence demonstrates clear error on the part of OWCP.12 The Board makes an 

independent determination as to whether a claimant 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.13 

OWCP’s procedures further provide that the term clear evidence of error is intended to 

represent a difficult standard.14 The claimant must present evidence that on its face shows that 

OWCP made an error. Evidence such as a detailed, well-rationalized medical report that, if 

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

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

7

20 C.F.R. § 10.607(b); T.C., Docket No. 19-1709 (issued June 5, 2020); Charles J. Prudencio, 41 ECAB 499, 

501-02 (1990).

8

Supra note 2; supranote 5 at Chapter 2.1602.5(a) (February 2016).

9

20 C.F.R. § 10.607(b); B.W., Docket No. 19-0626 (issued March 4, 2020); Fidel E. Perez, 48 ECAB 663, 

665 (1997).

10 S.W., Docket No. 18-0126 (issued May 14, 2019); Robert G. Burns, 57 ECAB 657 (2006).

11 See G.B., Docket No. 19-1762 (issued March 10, 2020); LeonaN. Travis, 43 ECAB 227, 240 (1991).

12 Id.

13 Id.

14 R.K., Docket No. 19-1474 (issued March 3, 2020).
5

submitted before the denial was issued, would have created a conflict in medical opinion requiring 

further development, is not clear evidence of error.15 

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. 

Preliminarily, the Board notes that in its April 15, 2021 decision the Board found that 

OWCP properly determined that appellant’s August 21, 2020 request for reconsideration was 

untimely filed. Findings made in prior Board decisions are res judicataabsent further merit review 

by OWCP under section 8128 of FECA.16 Consequently, appellant must demonstrate clear 

evidence of error on the part of OWCP in denying the claim.17

In support of his untimely request for reconsideration, appellant submitted the July 3, 2018 

report of Dr. Schlafly. The underlying issue in this matter, however, is whether he met his burden 

of proof to establish that the events surrounding the claimed condition occurred as he described. 

As this issue is factual in nature, the Board finds that the evidence submitted in support of 

reconsideration does not raise a substantial question as to the correctness of OWCP’s January 26, 

2018 decision.

The term clear evidence of error is intended to represent a difficult standard. 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. The Board finds that the evidence 

submitted on reconsideration does not show on its face that OWCP committed error when, in its 

January 26, 2018 decision. Appellant has not otherwise submitted evidence sufficient to raise a 

substantial question as to the correctness of OWCP’s January 26, 2018 decision. Accordingly, the 

Board finds that OWCP properly denied his reconsideration request, finding that it was untimely 

filed and failed to demonstrate clear evidence of error.

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. 

15 W.B., Docket No. 20-1197 (issued February 3, 2021); A.R., Docket No. 15-1598 (issued December 7, 2015).

16 S.M., Docket No. 18-1195 (issued January 6, 2020); J.L., Docket No. 17-1460 (issued December 21, 2018).

17 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).
6

ORDER

IT IS HEREBY ORDERED THAT the June 28, 2021 decision of the Office of Workers’

Compensation Programs is affirmed. 

Issued: January 26, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board