United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Greensboro, NC, Employer

__________________________________________

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Docket No. 21-1278

Issued: March 29, 2022

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 August 23, 2021 appellant filed a timely appeal from a February 23, 2021 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

elapsed from the last merit decision dated January 7, 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.3

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 February23, 2021 decision was August 22, 2021. As

this fell on a Sunday, the appeal was due the next business day,which was Monday, August 23, 2021, rendering the 

appeal timely filed. See 20 C.F.R. § 501.3(f)(3).

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the February 23, 2021 decision, appellant submitted additional evidence to 

OWCP. However, the Board’s Rules of Proceduresprovides: “The Board’s review of a case is limited to the evidence 

in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be 

considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from 

reviewing this additional evidence for the first time on appeal.
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

On September 24, 2018 appellant, then a 34-year-old rural carrier associate, filed a 

traumatic injury claim (Form CA-1) alleging that on September 12, 2018 she sustained an injury 

to her left shoulder when she was carrying packages upstairs and an entire step collapsed, causing 

her to fall to the left and hit her shoulder, while in the performance of duty. She did not stop work. 

A September 12, 2018 urgent care report from Dr. Brian Hagler, a Board-certified family 

practitioner, related appellant’s history of injury. Dr. Hagler’s examination revealed pain with 

movement of the left shoulder and tenderness over the acromioclavicular (AC) joint. He reviewed 

x-ray scans of appellant’s left shoulder taken on the same date, which revealed no acute 

abnormality, and diagnosed a left shoulder injury.

A medical report dated October 3, 2018 from Dr. Thomas E. Kingsley, Board-certified in 

family medicine and an occupational medicine specialist, related appellant’s history of carrying 

packages up cement steps when a step gave way, causing her to fall to her left and hit her trapezius 

muscles between her shoulder and neck on the handrail. Dr. Kingsley reviewed appellant’s 

medical records from the date of injury, noting that her left shoulder x-ray was negative. His

examination revealed discomfort and tenderness to palpation in the trapezius muscles of the upper 

back just behind the left clavicle, pain in left trapezius muscles with reaching the left hand over 

head and with movement of the head. Dr. Kingsley diagnosed myalgia, referred appellant to

physical therapy, and advised her to use ibuprofen. An accompanying duty status report (Form 

CA-17) of even date diagnosed shoulder pain and advised that appellant would need help when 

lifting objects above her head at work. 

In November 1 and December 26, 2018 medical reports, Dr. Kingsley related appellant’s 

history of injury, diagnosed myalgia, and advised that appellant should not lift, push, or pull more 

than 10 pounds with her left arm orlift above her head. In a work restriction note, patient discharge 

summary, and Form CA-17, all dated December 26, 2018, he related that appellant could lift, push, 

and pull up to 10 pounds with her left arm with no lifting above her head. 

Appellant also submitted medical reports from Dr. Dominic McKinley, Board-certified in

family practice and sports medicine, dated February 1 and 12, 2019. In his February 1, 2019

report, Dr. McKinley related appellant’s history of injury. He indicated that, though appellant was 

in physical therapy, she continued to experience left shoulder and neck pain that was aggravated 

with activity. Dr. McKinley’s examination revealed tenderness along the left side of appellant’s

neck, acromion region, and trapezius region, painful arc of motion with lightly limited flexion, 

positive empty can test, and positive impingement signs. He reviewed x-ray scans of the left 

shoulder taken that day, which revealed a partially fused os acromiale, and noted that there was 

some indication that the region had partially healed, as compared to the September 12, 2018 x-rays. 

Additionally, cervical spine x-rays revealed no abnormalities. Dr. McKinley diagnosed cervical 

strain with possible left-side radiculopathy and left shoulder pain, which he believed had 

multifactorial etiology, including possible referred pain from her neck, symptomatic healing os 

acromiale avulsion fracture, and possible rotator cuff injury. He recommended appellant undergo 
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magnetic resonance imaging (MRI) scans and advised that appellant should not lift more than 10 

pounds with her left arm, lift overhead, or reach behind herself. In his February 12 report,

Dr. McKinley noted that appellant’s shoulder pain had increased, she was having difficulty lifting 

objects at work, and she had missed work in previous days due to the aggravated pain. He injected

a mixture of betamethasone and lidocaine into the left subacromial space, which improved 

appellant’s range of motion in her neck and left shoulder. Dr. McKinley advised that appellant 

should not work pending the recommended MRI scan.

In a development letter dated March 5, 2019, OWCP informed appellant of the deficiencies 

of her claim. It advised her as to the type of factual and medical evidence needed and provided a 

questionnaire for completion. OWCP afforded appellant 30 days to respond. 

Appellant submitted a Form CA-17 dated February 12, 2019 from Dr. McKinley, who

diagnosed cervical radiculitis and left shoulder pain. Dr. McKinley recommended that appellant 

undergo an MRI scan of her left shoulder before returning to work.

On March 11, 2019 appellant responded to OWCP’s development questionnaire, relating 

that she was delivering packages at an apartment complex on September 12, 2018 and, as she 

climbed the steps, a step collapsed and she “went left,” trying to hold herself up while carrying 

packages, and hit her shoulder. She reported that she notified R.W., the employing establishment 

supervisor on September 12, 2018, the day she fell. Appellant also noted that she had no prior 

injuries.

In a March 19, 2019 medical report, Dr. McKinley noted appellant’s continuing left 

shoulder and neck pain, as well as a sensation of “lack of blood flow” radiating from her shoulder 

down to her hand for the previous 4 to 6 weeks. Appellant had not returned to work and was no 

longer undergoing physical therapy. Dr. McKinley reviewed the March 9, 2019 left shoulder MRI 

and the March 16, 2019 cervical spine MRI.4 He diagnosed neck pain secondary to cervical strain 

due to compensating for left shoulder discomfort, noting that the MRI did not reveal findings 

consistent with a work-related injury, as well as persisting left shoulder pain with multifactorial 

etiology including symptomatic biceps tendinitis and aggravation of pre-existing left AC joint 

arthritis.5 Dr. McKinley advised that appellant should not lift more than five pounds or use her 

left upper extremity.

By decision dated April 11, 2019, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that the incident occurred, as alleged. It noted that 

the evidence of record contained factual inconsistencies and that appellant had not adequately 

4 The March 16, 2019 cervical spine MRI scanrevealed suspected congenital incomplete segmentation of the C5-

C6 cervical level, minor superimposed cervical spine degeneration, and borderline to mild left side neural foraminal 

stenosis at the left C7 and C8 nerve levels.

5 Dr. McKinley also diagnosed swelling and fullness in the left supraclavicular region associated with an enlarged 

axillary lymph gland unrelated to her injury.
4

described the mechanism of injury. It concluded, therefore, that the requirements had not been 

met to establish an injury as defined by FECA.6

On April 29, 2019 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. The hearing was held on July 25, 2019. OWCP did not receive 

any further evidence.

By decision dated September 3, 2019, OWCP’s hearing representative affirmed the 

April 11, 2019 decision, as modified, finding that the evidence of record established that the 

incident occurred as alleged. The claim remained denied, however, as the medical evidence of 

record was insufficient to establish causal relationship between appellant’s diagnosed conditions 

and the accepted September 12, 2018 employment incident.

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OWCP subsequently received a September 13, 2019 narrative medical report from

Dr. Dawn Quashie, a Board-certified family practitioner, who described appellant’s employment 

duties and history of injury and examined appellant. Dr. Quashie diagnosed a sprain of the AC 

joint, a sprain of the left shoulder joint, and adhesive capsulitis of the left shoulder. She advised 

that appellant was temporarily disabled and should be on light-duty work. In her discussion of the 

September 12, 2018 employment incident, Dr. Quashie described the anatomy of the shoulder and 

stated that appellant “tried to stop her fall by stretching out her left arm . . . [and] she jammed her 

humerus into the shoulder joint leading to her shoulder sprain.” She further explained what occurs

when a person falls forward onto an outstretched hand, 

“[T]he impact force travels up the arm and exits in the cervical spine (neck) and thoracic 

spine (upper back) similar to a whiplash type injury. Residual delayed symptoms may 

appear, which include headaches, neck pain, muscle spasm, tingling or numbness in the 

arm, and pain between the shoulder blades. [Appellant’s] fall caused mechanical and 

functional damage to the leftshoulder leading to inefficient movement and compensations. 

These neurological compensations are part of your nervous system[‘]s hardwired survival

mechanism to avoid pain at all cost by taking the path of least resistance.”

Dr. Quashie opined that appellant’s shoulder sprain was directly and causally attributed to 

the September 12, 2018 employment incident.

On October 10, 2019 appellant requested reconsideration.

By decision dated January 7, 2020, OWCP denied modification of its September 3, 2019

decision.

OWCP subsequently received an October 7, 2020 narrative medical report from

Dr. Quashie relating that appellant’s neck and left shoulder pain had progressively worsened and 

6 Appellant subsequently submitted the March9, 2019 left shoulder MRIscan, which revealedmild supraspinatus 

and infraspinatus tendinosis, mild biceps tenosynovitis, mild AC osteoarthritis, and a single enlarged left axillary 

lymph node.

7 The hearing representative noted that appellant’s 2016 injury had been assigned OWCP File No. xxxxxx987 and 

accepted for limited medical expenses without formal adjudication. The representative ordered the case files to be 

administratively combined. On January 9, 2020 it administratively combined OWCP File Nos. xxxxxx987 and 

xxxxxx854, with the current file designated as the master file.
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that she continued to have reduced range of motion with pain for the left shoulder. She diagnosed 

arthropathy and primary osteoarthritis of the left shoulder and advised that appellant should remain 

on light duty. Dr. Quashie noted that “[w]hile most people experience wear and tear in their joints 

as they age, the development of [appellant’s] acromioclavicular joint arthrosis caused 

degeneration, disabling the shoulder joint, sometimes making it appear larger. Spurs, or spiny 

projections from the bones, may develop around the joint. With this condition, there is usually 

pain and swelling that limits the motion of the arm.” Dr. Quashie explained that appellant’s 

employment duties, including sorting mail and lifting and delivering packages, placed a great deal 

of stress on her shoulder joint, leading to “cartilage deterioration in her right [sic] shoulder ... and 

allowing arthritis to develop into the joint.” She opined that appellant’s September 12, 2018 fall 

through the apartment steps exacerbated her arthritic shoulder, leadingto her AC joint arthropathy. 

On January 29, 2021 appellant requested reconsideration. OWCP did not receive any 

further evidence.

By decision dated February 23, 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.8 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.9 Timeliness is determined by the document receipt date, i.e., 

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS).10 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.11

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.12 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 

8

5 U.S.C. § 8128(a); seeT.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).

9

20 C.F.R. § 10.607(a).

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

11 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).

12 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).
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OWCP.13 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.14

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

issue which was decided by OWCP.15 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.16

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

clear evidence of error on the part of OWCP.18

ANALYSIS

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

reconsideration was untimely filed.

The last merit decision was dated January 7, 2020. As appellant’s request for 

reconsideration was not received by OWCP until January 21, 2021, more than one year after 

January 7, 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.19

The Board further finds that OWCP summarily denied appellant’s request for 

reconsideration without complying with the review requirement of FECA and its implementing 

13 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 10 at Chapter 2.1602.5 (September 2020).

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

15 S.C., Docket No. 18-0126 (issued May 14, 2016); supranote 10 at Chapter 2.1602.5a (September 2020).

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

17 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 10 at Chapter 2.1602.5(a) (September 2020).

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

19 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).
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regulations.20 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.21 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.22 As well, OWCP’s procedures provide that the reasoning behind 

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.23

In the February 23, 2021 decision, OWCP did not address Dr. Quashie’s October 7, 2020 

medical report, which was received after the January 7, 2020 merit 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.

20 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).

21 5 U.S.C. § 8124(a).

22 20 C.F.R. § 10.126.

23 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 the reason for the 

disallowance).
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ORDER

IT IS HEREBY ORDERED THAT the February 23, 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: March 29, 2022

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