United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.L., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Brooklyn, NY, 

Employer

__________________________________________

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Docket No. 21-1218

Issued: May 10, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 11, 2021 appellant filed a timely appeal from an April 26, 2021 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The last merit decision in 

this case was a Board decision dated February 4, 2020, which became final after 30 days of 

issuance, and is not subject to further review.1 As there was no merit decision issued by OWCP 

within 180 days of 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

20 C.F.R. § 501.6(d). See P.H., Docket No. 19-1354 (issued March 10, 2022).

2

5 U.S.C. § 8101 et seq.
2

ISSUE

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

merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

FACTUAL HISTORY

This case has been previously before the Board.3 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are as follows.

On August 26, 2018 appellant, then a 53-year-old mail handler in modified duty status,4

filed a notice of recurrence (Form CA-2a), alleging that on July 26, 2018 he aggravated a May 19, 

2007 lumbar injury accepted by OWCP for lumbosacral neuritis or radiculitis under OWCP File 

No. xxxxxx213 when he lifted heavy buckets of mail while in the performance of duty. He stopped 

work on July 30, 2018 and did not return. In a November 7, 2018 statement, appellant asserted 

that he exceeded his work limitations on July 26, 2018 by lifting heavy buckets. 

In support of his claim, appellant submitted an August 6, 2018 report by Dr. Diane Lam, 

Board-certified in anesthesiology and pain management, who noted a history of a lumbar injury 

approximately 10 years prior, with a recent exacerbation of symptoms. 5 Dr. Trina Barman, Boardcertified in emergency medicine, provided August 29, 2018 reports relating appellant’s 10-year 

history of chronic lumbar pain with a flare-up in July 2018 when performing “a lot of heavy lifting 

and pulling” at work. She diagnosed spinal stenosis at L5-S1. Dr. Teresa M. Amato, Boardcertified in emergency medicine, submitted September 3 and 4, 2018 reports noting appellant’s 

complaints of lumbar pain with right-sided radiculopathy.

Appellant underwent an L5-S1 hemilaminectomy on September 5, 2018.

On November 20, 2018 OWCP administratively created a new traumatic injury claim, 

assigned OWCP File No. xxxxxx041, as appellant had alleged a new traumatic incident, rather 

than a spontaneous worsening of the accepted May 19, 2007 lumbar injury under OWCP File No. 

xxxxxx213.

3 Docket No. 19-1326 (issued February4, 2020).

4 Following an accepted lumbar injury in OWCP File No. xxxxxx213, appellant returned to work on August 4, 

2009 for six hours per day, facing up metered mail and patching ripped letters and flats. Appellant’s claims have not 

been administratively combined. 

5 An August 22, 2018 magnetic resonance imaging (MRI) scan of the lumbar spine demonstrated severe central 

spinal canal stenosis, mild encroachment of the right neural foramen at L5-S1, disc herniation and mild stenosis at 

L4-5 with neuroforaminal encroachment, disc bulges with mild neuroforaminal encroachment at L2-3 and L3-4, and 

facet arthropathy.
3

In a development letter dated November 26, 2018, OWCP advised appellant of the 

additional evidence needed to establish his traumatic injury claim and afforded him 30 days to 

respond.

In response, appellant submitted a September 6, 2018 report by Dr. Steven Factor, a Boardcertified neurophysiologist, who diagnosed a recurrent L5-S1 disc.

In a report dated December 5, 2018, Dr. William C. Wang, a physiatrist, noted that 

appellant sustained a lumbar injury while at work on May 19, 2007, with severe lumbar pain and 

left-sided radiculopathy. Appellant returned to limited-duty work, but experienced a severe flareup of lumbar symptoms on July 30, 2018. Dr. Wang held him off work through 

December 30, 2018.

By decision dated January 7, 2019, OWCP found that appellant had established that the 

July 26, 2018 employment incident occurred as alleged; however, it denied the claim finding that 

the medical evidence of record was insufficient to establish a medical condition causally related

to the accepted employment incident.

On February 11, 2019 appellant requested reconsideration. He submitted a January 29, 

2019 report from Dr. Wang, who opined that the accepted July 26, 2018 employment incident 

“aggravated an earlier injury from May 2007.” Dr. Wang noted that appellant believed that the 

cumulative effect of lifting and carrying heavy objects while at work had contributed to the severe 

flare-up of lumbar radiculopathy on July 26, 2018.

By decision dated February 28, 2019, OWCP denied modification of its prior decision.

Appellant appealed to the Board. By decision dated February 4, 2020, the Board affirmed 

OWCP’s February 28, 2019 decision, finding that appellant had not met his burden of proof to 

establish a lumbar injury causally related to the accepted July 26, 2018 employment incident.

On April 14, 2021 appellant, through his then-representative, requested reconsideration.

He asserted that an April 12, 2021 report by Dr. Tsai C. Chao, a Board-certified physiatrist, was 

sufficient to establish appellant’s claim. 

In an April 12, 2021 report, Dr. Chao provided a history of injury and treatment and 

reviewed medical records. He noted that he first examined appellant on September 16, 2019. 

Dr. Chao opined that a September 4, 2018 lumbar MRI scan demonstrated possible indentation 

and compression of the thecal sac and right S1 nerve root, improved on a September 10, 2018 

lumbar MRI scan. An October 30, 2019 lumbar MRI scan demonstrated degenerative disc disease 

in the lower lumbar spine, greatest at L5-S1 with posterior disc protrusion or herniation, mild 

spinal stenosis, and narrowing of the neural foramina. He opined that heavy lifting and pulling at 

work caused spinal stenosis necessitating the September 5, 2018 hemilaminectomy, as appellant 

was more susceptible to injury following the May 2007 lumbar injury.

By decision dated April 26, 2021, OWCP denied appellant’s request for reconsideration, 

finding that it was untimely filed and failed to demonstrate clear evidence of error.
4

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 

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 of 

the request for reconsideration as indicated by the received date in the Integrated Federal 

Employees’ Compensation System (iFECS).8 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.9

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

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

review to determine whether it demonstrates clear evidence of error. 10 If a request for 

reconsideration demonstrates clear evidence of error, OWCP will reopen the case for merit 

review.11

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

issue, which was decided by OWCP.12 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.13 Evidence that does not raise a 

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

clear evidence of error.14 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 

 

6

5 U.S.C. § 8128(a); see also A.B., Docket No. 19-1539 (issued January 27, 2020); W.C., 59 ECAB 372 (2008).

 

7

20 C.F.R. § 10.607(a).

 

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

 

9 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).

 

10 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).

 

11 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 8 at Chapter 2.1602.5 (September 2020).

 

12 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 ECAB1153 (1992).

 

13 J.D., Docket No. 19-1836 (issued April6, 2020); LeoneN. Travis, 43 ECAB 227 (1999).

 

14 S.W.,Docket No. 18-0126 (issued May 14, 2019); Robert G. Burns, 57 ECAB 657 (2006).
5

the new evidence demonstrates clear error on the part of OWCP.15 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.16

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

represent a difficult standard.17 The claimant must present evidence which on its face shows that 

OWCP made an error.18 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.19 The Board makes an independent 

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

OWCP.20

ANALYSIS

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

was untimely filed.

As noted above, a request for reconsideration must be received within one year of the date 

of the last merit decision for which review is sought.21 As appellant’s request for reconsideration 

was not received by OWCP until April 14, 2021, more than one year after the Board’s February 4, 

2020 decision, it was untimely filed.22 Consequently, he must demonstrate clear evidence of error 

by OWCP in its February 28, 2019 decision.

The Board further finds that appellant has not demonstrated clear evidence of error. On 

reconsideration appellant submitted Dr. Chao’s April 12, 2021 report. Dr. Chao summarized a 

 

15 T.N., Docket No. 18-1613 (issued April29, 2020).

 

16 J.M., Docket No. 19-1842 (issued April23, 2020).

 

17 See supra note 8 at Chapter 2.1602.5(a) (September 2020); see also J.S., Docket No. 16-1240 (issued 

December 1, 2016).

 

18 C.C., Docket No. 21-0896 (issued December 2, 2021); R.G., Docket No. 21-0540 (issued November 9, 2021); 

K.W., Docket No. 19-1808 (issued April2, 2020).

 

19 Id.

 

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

21 See supra note 7.

 

22 According to OWCP’s procedures, the one-year period for requesting reconsideration begins on the date of the 

original OWCP decision, but the right to reconsideration within one year also accompanies any subsequent merit 

decision on the issues, including any merit decision by the Board. See supra note 8 at Chapter 2.1602.4a 

(September 2020).
6

history of injury and treatment and reviewed imaging studies. He opined that heavy lifting and 

pulling at work on July 26, 2018 aggravated appellant’s preexisting spinal stenosis caused by a 

May 19, 2007 employment injury. However, Dr. Chao failed to explain whether or how 

appellant’s lumbar condition were related to the May 19, 2007 employment injury. Therefore, his

report does not raise a substantial question concerning the correctness of OWCP’s February 28, 

2019 decision.

As noted, clear evidence of error is intended to represent a difficult standard. 23 Even a 

detailed, well-rationalized medical report, which if submitted before the denial was issued, would 

have created a conflict in medical evidence requiring further development is insufficient to 

demonstrate clear evidence of error. 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.24 

The Board finds that appellant’s request for reconsideration does not demonstrate on its 

face that OWCP committed error when it found in its February 28, 2019 decision that he had not 

established an employment-related lumbar injury.25 Therefore, OWCP properly determined that 

appellant did not demonstrate clear evidence of error in its February 28, 2019 decision.

CONCLUSION

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.

 

23 See supra note 17. 

 

24 M.E., Docket No. 18-1442 (issued April22, 2019).

 

25 See S.F., Docket No. 09-0270 (issued August 26, 2009).
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ORDER

IT IS HEREBY ORDERED THAT the April 26, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 10, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board