United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.S., Appellant

and

U.S. POSTAL SERVICE, WATERFORD POST 

OFFICE, Waterford, WI, Employer

__________________________________________

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Docket No. 22-0541

Issued: October 3, 2022

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

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 1, 2022 appellant, through counsel, filed a timely appeal from a January 14, 

2022 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed from the last merit decision dated December 8, 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 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

On November 18, 2019 appellant, then a 61-year-old rural carrier, filed an occupational 

disease claim (Form CA-2) alleging thatshe could not lift her arm past her shoulder due to factors 

of her federal employment, including “repetition.” She reported that she first became aware of her

condition and its relation to her federal employment on August 24, 2019. On the reverse side of 

the claim form appellant’s supervisor noted that appellant had modified her work techniques to 

accommodate her restrictions. Appellant did not stop work. 

In support of her claim, appellant submitted an undated statement indicating that she had 

worked for the employing establishment for 18 years and that her right shoulder recently started 

to hurt to the point that she was unable to lift her arm past her shoulder. She attributed this to the 

physical nature of her job, including lifting heavy parcels daily and opening and closing her heavy 

door over one hundred times a day.

Appellant also submitted a November 18, 2019 work restriction note from Dr. Scott M. 

Dresden, Board-certified in occupational medicine, who diagnosed right shoulder tendinitis and 

right shoulder strain, indicating that the conditions were work related. Dr. Dresden advised that 

appellant could return to work with restrictions of no lifting, carrying, pushing, or pulling with the 

right hand over 10 pounds and no above-shoulder work with the right arm. 

In a development letter dated December 4, 2019, OWCP informed appellant of the

deficiencies in her claim. It advised her of the additional evidence needed to establish her 

occupational disease claim and afforded her 30 days to respond. In a separate letter dated 

January 3, 2020, OWCP requested clarification from Dr. Dresden, including a complete factual 

history and rationalized medical opinion regarding causal relationship.

OWCP subsequently received a January 20, 2020 work restriction note from Dr. Dresden, 

diagnosing right shoulder tendinitis, right shoulder strain, right glenohumeral arthritis, and right 

rotator cuff injury, indicating that these conditions were work related. Dr. Dresden released 

appellant for work with restrictions and noted that surgical intervention was needed.

By decision dated February 19, 2020, OWCP denied appellant’s occupational disease

claim, finding that the medical evidence submitted was insufficient to establish causal relationship 

between her diagnosed condition and the accepted factors of her federal employment.

Appellant subsequently submitted November 12, 2019 progress notes from Kim T. 

Duczak, a nurse practitioner, relating appellant’s yearlong history of worsening right shoulder pain 

and decreased range of motion (ROM), which she attributed to the repetitive nature of her job and 

heavy lifting. Appellant’s symptoms had not improved with physical therapy. Ms. Duczak’s 

examination of the right shoulder revealed a large soft effusion in the anterior aspect of the bicep 
3

with tenderness to palpation, reproducible supraspinous tenderness, limited adduction, and 

decreased strength. She diagnosed chronic right shoulder pain.

November 18, 2019 progress notes from Dr. Dresden related that appellant experienced 

insidious development of right shoulder pain over the course of her work delivering mail and 

parcels and that, by August 24, 2019, she noticed difficulty lifting her arm above shoulder level. 

Dr. Dresden’s examination of appellant’s right shoulder and upper extremity revealed increased 

prominence and swelling, as well as moderate tenderness to palpation, over the anterior shoulder 

along the inferior and anterior glenohumeral space, moderate tenderness to palpation over the 

bicipital tendon and just medial to the aforementioned prominence, mild-to-moderate tenderness 

to palpation over the anterior and lateral subacromial space, including subdeltoid bursa 

distribution, markedly attenuated ROM of the right shoulder in abduction, positive Neer 

impingement, Hawkins Kennedy, and empty can tests, equivocal O’Brien’s compression test, 

tenderness over the midline cervical or thoracic spine, and mild tenderness to palpation over the

right posterior neck musculature. Dr. Dresden reviewed a right shoulder x-ray taken that day and 

diagnosed right shoulder tendinitis with concurrent severe right shoulder osteoarthrosis. He 

indicated that the work-relatedness of appellant’s right shoulder condition was of undetermined 

status. Dr. Dresden explained that, while her work activities certainly played a role in the 

development of the very apparent degenerative changes in her right shoulder and aggravated the 

associated tendinitis and pain, appellant’s osteoarthrosis had many other influencing factors. He 

released appellant for work with restrictions.

In December 16, 2019 progress notes, Dr. Dresden noted that appellant continued to have 

a good deal of pain over her right shoulder with difficulty lifting the arm up to shoulder level. He

reviewed a December 9, 2019 magnetic resonance imaging (MRI) scan arthrogram of the right 

shoulder, which demonstrated severe erosive glenohumeral joint arthropathy with little evidence 

of any remaining supportive labrum tissue. Dr. Dresden diagnosed right glenohumeral arthritis, 

right shoulder tendinitis, and right shoulder strain. He again noted that the injury was of 

undetermined work-relatedness and released appellant for work with restrictions. In a workers’

compensation report of even date, Dr. Dresden repeated his diagnoses, released appellant for work 

with restrictions, and indicated that the injury was of undetermined work relatedness.

A January 14, 2020 report from Dr. Navjot S. Kohli, a Board-certified orthopedic surgeon, 

related that appellant had considerable right shoulder pain since an August 24 2019 employment 

incident. Dr. Kohli’s examination of the right shoulder revealed pain through ROM and weakness 

with external rotation. He reviewed the earlier x-ray and MRI scan studies and diagnosed right 

shoulder rotator cuff tear arthropathy. Dr. Kohli recommended right reverse total shoulder 

arthroscopy (TSA). In a work excuse note of even date, he indicated that appellant was under his 

care and could return to regular-duty work beginning on January 15, 2020. 

In January 20, 2020 progress notes, Dr. Dresden noted that appellant had decided to go 

forward with a reverse TSA after consultation with Dr. Kohli. He diagnosed right shoulder 

tendinitis, right shoulder strain, right glenohumeral arthritis, and right rotator cuff injury and 

released appellant for work with restrictions. In a workers’ compensation report of even date,

Dr. Dresden provided his earlier diagnoses, released appellant for work with restrictions, and 

indicated that appellant’s conditions were work related. 
4

A May 26, 2020 surgical follow-up report from Dr. Kohli indicated that appellant had 

undergone right reverse TSA on March 11, 2020, and reported right-sided arm and hand weakness. 

Dr. Kohli’s examination revealed good ROM of the right shoulder, but limited flexion at her distal 

interphalangeal and proximal interphalangeal joints of her thumb through middle fingers. 

Dr. Kohli reviewed a May 21, 2020 MRI scan of the brachial plexus, right upper extremity, which 

revealed myoedema involving the right infraspinatus muscle belly with sparing laterally and 

multilevel degenerative disc disease. He diagnosed status post right reverse TSA and median nerve 

contusion and indicated that appellant should be off work until October 31, 2020. In a June 30, 

2020 report, Dr. Kohli noted that appellant was doing well with regards to her right shoulder, but 

reported constant right elbow pain and limited use of her right hand. An x-ray of the right elbow 

taken that day revealed no abnormalities. Dr. Kohli diagnosed status post reverse TSA. In a 

September 15, 2020 report, his examination revealed weak motor function in the median nerve 

distribution on the right, good ROM of the right shoulder and elbow without pain, and good 

strength of the right shoulder. Dr. Kohli reviewed a September 14, 2020 electromyography (EMG)

of the right upper extremity and diagnosed status post shoulder replacement and median 

mononeuropathy.

On November 10, 2020appellant, through counsel, requested reconsideration. By decision 

dated December 8, 2020, OWCP denied modification of its prior decision.

On December 27, 2021 appellant, through counsel, requested reconsideration. She 

submitted a November 9, 2021 report by Dr. Kohli, contending although late, was sufficient to 

establish causal relationship.

In a November 9, 2021 report, Dr. Kohli explained that appellant developed arthritis and 

rotator cuff disease, noting that the arthritis was a preexisting condition. However, he opined that 

appellant’s repetitive use of her arm with repetitive carrying of a mailbag and packages over the 

years contributed to the injury and was a material, permanent, exacerbating factor of her shoulder 

condition. Dr. Kohli further explained his belief that “physical labor, especially repetitive in 

nature, over years can contribute to arthritic changes, can contribute to rotator cuff pathology and 

can contribute to patient’s disability necessitating surgery.”

By decision dated January 14, 2022, 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 of 

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

3

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

4

20 C.F.R. § 10.607(a).
5

Employees’ Compensation System (iFECS).5 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.6

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. 7 If a request for 

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

review.8

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

issue which was decided by OWCP.9 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.10 Evidence that does not raise a 

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

clear evidence of error.11 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.12 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.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, which on its face shows that 

OWCP made an error.15 Evidence such as a detailed, well-rationalized medical report which, if 

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

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 (September 2020).

9 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).

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

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

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

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

14 See supra note 5 at Chapter 2.1602.5(a) (September 2020); see also J.S., Docket No. 16-1240 (issued 

December 1, 2016).

15 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).
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submitted before the denial was issued, would have created a conflict in medical opinion requiring 

further development, is not clear evidence of error.16 The Board makes an independent 

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

OWCP.17

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.18 As appellant’s request for reconsideration 

was not received by OWCP until December 27, 2021, more than one year after OWCP’s 

December 8, 2020 decision, it was untimely filed.19 Consequently, she must demonstrate clear 

evidence of error by OWCP.20

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

reconsideration appellant submitted Dr. Kohli’s November 9, 2021 report. Although Dr. Kohli 

addressed the issue of causal relationship, the Board finds that this report does not demonstrate 

clear evidence of error because it does not show that OWCP committed an error in finding that 

appellant failed to establish causal relationship between her medical condition and the accepted 

factors of her federal employment. As such, it does not raise a substantial question as to the 

correctness of OWCP’s December 8, 2020 merit decision.21

As noted, clear evidence of error is intended to represent a difficult standard. 22 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.23

16 Id.

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

18 See supra note 5.

19 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 a ny merit decision by the Board. See supra note 5 at Chapter 2.1602.4a 

(September 2020).

20 Supra note 8.

21 See D.R., Docket No. 21-0061 (issued May 24, 2021).

22 See supra note 15.

23 M.E., Docket No. 18-1442 (issued April22, 2019).
7

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

face that OWCP committed error when it found in its December 8, 2020 decision that she had not 

established an employment-related shoulder injury.24 Therefore, OWCP properly determined that 

appellant did not demonstrate clear evidence of error in its December 8, 2020 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.

ORDER

IT IS HEREBY ORDERED THAT the January 14, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 3, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

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