United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., Appellant

and

U.S. POSTAL SERVICE, ROSELAND POST 

OFFICE, Chicago, IL, Employer

__________________________________________

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Docket No. 22-0379

Issued: June 6, 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 December 31, 2021 appellant filed a timely appeal from a July 6, 2021 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 The last merit decision in 

this case was a Board decision dated November 28, 2017, which became final after 30 days of 

issuance, and is not subject to further review.2 As there was no merit decision issued by OWCP 

within 180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation 

Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the 

merits of this case. 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from OWCP’s July 6, 2021 decision was January 2, 2022. Because using 

the January 10, 2022 date of receipt would result in the loss of appeal rights, the date of the postmark is considered 

the date of filing. The date of the U.S. Postal Service postmark is December 31, 2021, rendering the appeal timely 

filed. See 20 C.F.R. § 501.3(f)(1).

2

20 C.F.R. § 501.6(d).

3

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 her 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.4 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 23, 2005 appellant, then a 48-year-old mail processing clerk, filed an 

occupational disease claim (Form CA-2) alleging that she sustained neck, back, and right shoulder 

injuries due to factors of her federal employment including repetitive lifting and bending. She 

noted that she first became aware of her condition on March 28, 2005 and realized its relation to 

her federal employment on May 17, 2005. Appellant stopped work in May 2005 and did not 

return.

On August 14, 2006 OWCP accepted that appellant sustained a herniated C5-6 disc, lumbar 

strain, and right rotator cuff tear. As of September 9, 2008, it expanded the acceptance of the claim 

to include bilateral hip and thigh strains. On November 26, 2008 OWCP further expanded the 

acceptance of appellant’s claim to include aggravation of osteoarthritis of both hips.

By decision dated February 3, 2009, OWCP granted appellant a schedule award for 10 

percent permanent impairment of each lower extremity.5

On June 21, 2016 appellant requested reconsideration and submitted additional medical 

evidence.

By decision dated August 25, 2016, OWCP denied modification of its February 3, 2009 

schedule award determination.6 Appellant subsequently appealed to the Board. By decision issued 

November 28, 2017,7the Board affirmed OWCP’s August 25, 2016 decision, finding that the 

4 Docket No. 19-1757 (issued April15, 2020); Docket No. 17-0767 (issued November 28, 2017); Docket No. 15-

1879 (issued February 10, 2016); Docket No. 09-2007 (issued May 21, 2010), petition for recon. denied,Docket No. 

09-2007 (issued September 28, 2010); Docket No. 98-1379 (issued May 23, 2000).

5 Appellant subsequently claimed an increased schedule award for lower extremity permanent impairment due to 

thoracic disc herniations OWCP developed the claim for consequential conditions. By decision dated July 28, 2014, 

it denied appellant’s claim for consequential thoracic disc herniations at T8-9, T9-10, and T10-11. Following an oral 

hearing, by decision dated April 21, 2015, an OWCP hearing representative affirmed the July 28, 2014 decision. 

Appellant then appealed to the Board. By decision dated February 10, 2016, the Board affirmed OWCP’s April21, 

2015 merit decision. Docket No. 15-1879 (issued February 10, 2016).

6 OWCP also denied modification of the hearing representative’s April21, 2015 denial of a consequential thoracic 

spine condition.

7 Docket No. 17-0767 (issued November 28, 2017).
3

medical evidence of record failed to establish greater than 10 percent permanent impairment of 

each lower extremity, or that she sustained a consequential thoracic spine condition.

On November 20, 2018 appellant requested reconsideration of OWCP’s August 25, 2016 

decision. She submitted statements dated from January 30 through November 19, 2018, alleging 

that OWCP erred by failing to list bilateral hip osteoarthritis as an accepted condition in an 

October 9, 2008 letter to Dr. Samuel J. Chmell, an attending Board-certified orthopedic surgeon, 

inquiring as to whether she had sustained a bilateral hip condition other than accepted 

strains/sprains. Appellant also submitted correspondence to and from OWCP regarding the status 

of her claim, printouts from a U.S. Postal Service website, and copies of documents previously of 

record.8

By decision dated February 20, 2019, OWCP denied further merit review of appellant’s 

claim pursuant to 5 U.S.C. § 8128(a) finding that her reconsideration request neither raised 

substantive legal questions nor included new and relevant evidence.

Appellant appealed to the Board. During the pendency of the prior appeal, she submitted 

July 31 and September 12, 2019 prescriptions, and copies of documents previously of record.

By decision issued April 15, 2020,9the Board affirmed OWCP’s February 20, 2019 

decision, finding that appellant’s November 20, 2018 reconsideration request did not show that 

OWCP erroneously applied or interpreted a specific point of law, advance a new and relevant legal 

argument not previously considered, or provide relevant and pertinent new evidence regarding the 

underlying issues of permanent impairment or causal relationship.

On April 8, 2021 appellant requested reconsideration. She alleged thatOWCP mishandled 

the development of her schedule award claims for bilateral hip impairment, bilateral carpal tunnel 

syndrome, and a thoracic condition. Appellant asserted that OWCP should have developed the 

bilateral hip condition together with another claim for a hernia with partial hysterectomy and 

endometrial ablation. She submitted a June 8, 2021 statement asserting that an October 9, 2008 

memorandum of telephone call (Form CA-110) previously of record established that she had

claimed a schedule award claim for bilateral hip impairment. 

By decision dated July 6, 2021, OWCP denied appellant’s request for reconsideration, 

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

8 On November 27, 2018 appellant sought an appeal from a purported June 1, 2018 OWCP decision. The Clerk of 

the Appellate Boards assigned the appeal Docket No. 19-0330. By order dated July 26, 2019, the Board dismissed 

the appeal as the case record did not contain an adverse OWCP decision issued within 180 days of November 27, 2018. 

The Board notes that the June 1, 2018 document referenced by appellant was an informational letter and not a final 

decision. Docket No. 19-0330 (issued July 26, 2019).

9 Docket No. 19-1757 (issued April15, 2020).
4

LEGAL PRECEDENT

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further 

merit review.10 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.11 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).12 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.13

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. 14 If a request for 

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

review.15

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

issue, which was decided by OWCP.16 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.17 Evidence that does not raise a 

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

clear evidence of error.18 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.19 To demonstrate clear evidence 

of error, the evidence submitted must be of sufficient probative value to shift the weight of the 

10 5 U.S.C. § 8128(a); see also A.B., Docket No. 19-1539 (issued January 27, 2020); W.C., 59 ECAB 372 (2008).

11 20 C.F.R. § 10.607(a).

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

13 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).

14 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).

15 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 12 at Chapter 2.1602.5 (September 2020).

16 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).

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

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

19 T.N., Docket No. 18-1613 (issued April29, 2020).
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evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s 

decision.20

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

represent a difficult standard.21 The claimant must present evidence which on its face shows that 

OWCP made an error.22 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.23 The Board makes an independent 

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

OWCP.24

In schedule award cases, a distinction is made between a claim for a schedule award and a 

request for reconsideration of the denial of a schedule award. When a claimant is asserting that 

the original award was erroneous based on his or her medical condition at that time, this is a request 

for reconsideration.25

The Board has held that a claimant may request a schedule award or increased schedule 

award at any time based on evidence of a new exposure or medical evidence showing progression 

of an employment-related condition resulting in permanent impairment or increased impairment.26 

When a claimant has requested reconsideration and has submitted new and relevant evidence with 

respect to a permanent impairment or an increased permanent impairment, then he or she will be 

entitled to a merit decision on the issue.27

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

21 See supra note 12 at Chapter 2.1602.5(a) (September 2020); see also J.S., Docket No. 16-1240 (issued 

December 1, 2016).

22 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).

23 Id.

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

25 L.J., Docket No. 21-0468 (issued December 1, 2021); J.H., Docket No. 20-1097 (issued December 18, 2020);

L.D., Docket No. 17-1946 (issued August 23, 2018); C.M., Docket No. 17-0310 (issued February 15, 2017); J.F., 

Docket No. 13-0112 (issued November 6, 2013); see also B.K., 59 ECAB 228 (2007) (where it was evident that the 

claimant was seeking a schedule award based on new a nd current medical evidence, OWCP should have issued a 

merit decision on the schedule award claim rather than adjudicate a request for reconsideration).

26 L.J., id.; R.D., Docket No. 18-0579 (issued September 14, 2018); D.S., Docket No. 17-0407 (issued 

May 24, 2017).

27 See C.W., Docket No. 18-1110 (issued December 28, 2018); Linda T. Brown, 51 ECAB 115 (1999); Paul R. 

Reedy, 45 ECAB 488 (1994); see also B.K., 59 ECAB 228 (2007) (where it was evident that the claimant was seeking 

a schedule award based on new and current medical evidence, OWCP should have issued a merit decision on the 

schedule award claim rather than adjudicate a request for reconsideration).
6

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.28 As appellant’s request for reconsideration 

was not received by OWCP until April 8, 2021, more than one year after the November 28, 2017

merit decision, it was untimely filed.29 Consequently, she must demonstrate clear evidence of 

error by OWCP in its August 25, 2016 decision.

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

support of her April 8, 2021 request for reconsideration, appellant submitted April 5 and June 8, 

2021 statements expressing dissatisfaction with OWCP’s adjudication of her schedule award 

claim, as well as July 31 and September 12, 2019 prescription notes. As these documents are not 

relevant to the underlying issue of determining the appropriate percentage of permanent 

impairment of appellant’s lower extremities, they do not raise a substantial question as to the 

correctness of OWCP’s August 25, 2016 decision.30

Appellant also submitted copies of OWCP correspondence previously of record. These 

documents are duplicative in nature and are therefore insufficient to shift the weight of the 

evidence in favor of the claimant.31

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

its face that OWCP committed error in its August 25, 2016 schedule award decision.

32

 

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

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

error.

28 See supra note 11.

29 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 12 at Chapter 2.1602.4a 

(September 2020).

30 See supra notes 18 and 20.

31 A.S., Docket No. 18-1556 (issued September 17, 2019); see A.M., Docket No. 17-1434 (issued January 2, 2018);

D.B., Docket No. 16-0539 (issued May 26, 2016).

32 See S.F., Docket No. 09-0270 (issued August26, 2009).
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ORDER

IT IS HEREBY ORDERED THAT the July 6, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 6, 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