United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

I.L., Appellant

and

U.S. POSTAL SERVICE, KINGSBRIDGE 

STATION, Bronx, NY, Employer

__________________________________________

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Docket No. 23-0329

Issued: August 1, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 3, 2023 appellant filed a timely appeal from an October 12, 2022 nonmerit 

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

elapsed from OWCP’s last merit decision, dated June 7, 2021, to the filing of this appeal, pursuant 

to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. § § 501.2(c) and 501.3, the 

Board lacks jurisdiction over the merits of this case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the October 12, 2022 decision, and on appeal, appellant submitted additional 

evidence. However, the Board’s Rules of Procedureprovides: “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. Id.
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 October 26, 2020 appellant, then a 56-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on August 26, 2020, she sustained an injury to her right knee due 

to frequent stepping on and off the postal truck while in the performance of duty. She stopped 

work on September 2, 2020 and returned to work on September 5, 2020.

In an undated statement, appellant indicated that she hurt her right knee as she stepped off 

her truck. She noted that she felt a sharp pain in her right knee that radiated down the front of her 

right leg onto the top of her right foot. Appellant also related that it hurt when she walked.

In support of her claim, appellant submitted medical evidence.

OWCP, by development letter dated November 3, 2020, advised appellant of the 

deficiencies of her claim. It notified her of the type of factual and medical evidence needed and 

provided a questionnaire for her completion. OWCP afforded appellant 30 days to respond. 

OWCP subsequently received additional medical evidence.

By decision dated December 4, 2020, OWCP accepted that the August 26, 2020

employment incident occurred as alleged. However, it denied appellant’s traumatic injury claim, 

finding that she had not submitted medical evidence containing a medical diagnosis in connection 

with the accepted employment incident. OWCP concluded, therefore, that the requirements had 

not been met to establish an injury as defined by FECA. 

A September 1, 2020 x-ray of the right knee read by Dr. Kari Schlessinger, a Boardcertified diagnostic radiologist, revealed no acute bone abnormality, no fracture or dislocation, and 

no significant osteoarthritic changes. 

A September 18, 2020 magnetic resonance imaging (MRI) scan of appellant’s right knee 

read by Dr. Jonathan Weiss, a Board-certified diagnostic radiologist, revealed a radial tear of the 

medial meniscus near the root of the posterior horn which was not present on a prior MRI scan of 

June 1, 2020; a Grade 1 sprain of the medial collateral ligament; horizontal intrasubstance tear of 

the lateral meniscal body, unchanged from the prior examination; and moderate chondromalacia 

patella of the upper pole. 

In reports dated December 4 and 10, 2020, Dr. Michael Cushner, an orthopedic surgeon,

diagnosed right knee internal derangement and noted that a request was pending for approval of 

right knee arthroscopic surgery.

On January 4, 2021 appellant requested an oral hearing before a representative of OWCP’s

Branch of Hearings and Review. A telephonic hearing was held on April 21, 2021. During the 

hearing, appellant alleged that she did not seek medical treatment following her August 26, 2020 
3

injury, and that she then sustained a new injury on September 1, 2020, when she heard her right 

knee pop.3

In an October 13, 2020 report, Dr. Cushner noted that appellant was seen for follow up of 

a workers’ compensation case with a September 1, 2020 date of injury. He noted that a May 19, 

2020 x-ray of the right knee revealed no significant osteoarthritis and a slight lateral tilt to the 

patella. A June 1, 2020 MRI scan of appellant’s right knee revealed intrasubstance tear of the 

lateral meniscus, grade III chondromalacia patella, and small knee effusion. A September 18, 2020 

MRI scan of the right knee revealed radial tear of the medial meniscus near the root of the posterior 

horn, which was not present on the June 1, 2020 MRI scan, grade I sprain of the medial collateral 

ligament, unchanged intrasubstance tear of the lateral meniscal body, and moderate 

chondromalacia patella. Dr. Cushner related that appellant denied constant popping but confirmed 

that she “had 2 episodes of popping -- once during the initial injury and another time when she 

presented to urgent care.” He diagnosed derangement of the right knee.

In a February 7, 2021 report, Dr. Cushner noted that appellant was initially seen on 

August 26, 2020, when she stepped off her truck and felt a pop in her right knee. He related that 

she had immediate pain and discomfort and was reevaluated on September 14, 2020. Dr. Cushner

noted that appellant reported two separate injuries, the initial injury on August 26, 2020, and a 

reinjury on September 1, 2020. He explained that appellant had an MRI scan on September 18, 

2020, which revealed a radial tear of the medial meniscus near the root of the posterior horn that

was not present on the June 1, 2020 MRI scan, prior to the injury. Dr. Cushner diagnosed a sprain 

of the medial collateral ligament and opined, “In conclusion, patient with underlying right knee 

injury, with new onset injury from this date of accident. This is confirmed both with clinical 

examination, as well as MRI scan findings. The patient will need a knee arthroscopy for treatment 

of the meniscal tear. There is a direct causal relationship with the injury from August 26, 2020.”

In a March 16, 2021 report, Dr. Cushner assessed derangement of right knee. 

In a May 21, 2022 statement, appellant related that she had undergone right knee surgery 

on May 19, 2021, that she informed her physician that she had pain and tightness in her right knee,

and that a June 1, 2020 MRI scan of the right knee “showed a lateral meniscus on my right knee.” 

She described her August 26 and September 1, 2020 injuries and confirmed that she did not go to 

a doctor for her August 26, 2020 injury, but went to urgent care for her September 1, 2020 injury. 

Appellant explained that she was referred to Dr. Cushner, that he saw her on September 14, 2020,

that she had an MRI scan on September 18, 2020, which showed that she had a radial tear of the

medial meniscus near the root of the posterior horn, and that she needed right knee surgery.

By decision dated June 7, 2021, OWCP’s hearing representative affirmed, as modified, the 

December 4, 2020 decision. The hearing representative explained that appellant had submitted 

sufficient medical evidence to establish diagnosed conditions, however, the claim remained denied 

as she did not provide a rationalized medical opinion explaining how her diagnosed conditions 

were causally related to the accepted August 26, 2020 employment incident.

3 The Board notes that appellant claimed recurrences of disability causally related to the alleged August 26, 2020 

employment injury.
4

On June 7, 2022 OWCP received a request for reconsideration dated May 13, 2022, and

signed on June 7, 2022 by Dr. Lisa Corrente, a Board-certified diagnostic radiologist. Dr. Corrente

provided assessments of other tear of medial meniscus, current injury, right knee, initial; and sprain 

of medial collateral ligament (MCL) of right knee, initial. She opined that appellant’s right knee 

MCL sprain was a direct result of the August 26, 2020 employment incident.

On August 26, 2022 appellant requested reconsideration of the June 7, 2021 decision. She 

noted that her doctor had appealed on her behalf on June 7, 2022.

OWCP subsequently received additional reports dated June 24, July 22, and August 19,

2022 by Dr. Corrente who reiterated her prior diagnoses of tear of medial meniscus, right knee, 

initial; and sprain of MCL of right knee, initial. She also noted that the radial tear of the medial 

meniscus near the root of the posterior horn was not present on the prior MRI scan of June 1, 2020. 

Dr. Corrente advised that appellant was incapacitated.

By decision dated October 12, 2022, OWCP denied appellant’s August 26, 2022 

reconsideration request, finding that it was untimely filed and failed to demonstrate clear evidence 

of error. It simply noted: “You did not present clear evidence of error.” It thereafter noted that 

the medical documentation received was not received in a timely manner. 

LEGAL PRECEDENT

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

merit review.4 To be entitled to a merit review of an OWCP decision, a request for reconsideration 

must be received by OWCP within one year of the date of OWCP’s decision for which review is 

sought.5 Timeliness is determined by the document receipt date of the request for reconsideration 

as is indicated by the “received date” in the Integrated Federal Employees’ Compensation System 

(iFECS).6 The Board has found that the imposition of this one-year filing limitation does not 

constitute an abuse of discretion.7

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 that OWCP’s most recent 

merit decision was in error.8 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 

4

Id. at § 8128(a);see M.M., Docket No. 21-1203 (issued December 22, 2022); L.W.,Docket No. 18-1475 (issued 

February 7, 2019); Y.S., Docket No. 08-0440 (issued March 16, 2009).

5

20 C.F.R. § 10.607(a).

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

7 G.G., Docket No. 18-1074 (issued January 7, 2019); E.R.,Docket No. 09-0599 (issued June 3, 2009); LeonD. 

Faidley, Jr., 41 ECAB 104 (1989).

8

See 20 C.F.R. § 10.607(b); R.S.,Docket No. 19-0180 (issued December 5, 2019);Charles J. Prudencio, 41 ECAB 

499, 501-02 (1990).
5

claimant’s request demonstrates clear evidence of error on the part of OWCP. 9 In this regard, 

OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior 

evidence of record.10

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.11 It is not enough merely to show that the evidence 

could be construed so as to produce a contrary conclusion. 12 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 evidence of error on the 

part of OWCP.13 To demonstrate clear evidence of error, the evidence must not only be of 

sufficient probative value to create a conflict in medical opinion or establish a clear procedural 

error, but 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.14 The Board 

makes an independent determination of 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.15

ANALYSIS

The Board finds that OWCP properly found that appellant’s request for reconsideration 

was untimely filed.

The most recent merit decision addressing appellant’s traumatic injury claim was the 

June 7, 2021 decision of OWCP’s hearing representative. As her request for reconsideration was 

not received until August 26, 2022, more than one year after the June 7, 2021 decision, the Board 

finds that it was untimely filed. In her August 26, 2022 reconsideration request, appellant 

referenced a report filed by her physician, Dr. Corrente, on June 7, 2022, and argued that her 

physician timely requested reconsideration on her behalf. However, Dr. Corrente was not 

authorized to request reconsideration on appellant’s behalf. OWCP’s regulations and procedures, 

9 L.C.,Docket No. 18-1407 (issued February 14, 2019); M.L.,Docket No. 09-0956 (issued April15, 2010); see also 

id. at § 10.607; supra note 6 at Chapter 2.1602.5a (September 2020).

10 J.M., Docket No. 19-1842 (issued April 23, 2020); J.W.,Docket No. 18-0703 (issued November 14, 2018);

Robert G. Burns, 57 ECAB 657 (2006).

11 20 C.F.R. § 10.607(b); B.W.,Docket No. 19-0626 (issued March 4, 2020); FidelE. Perez, 48 ECAB 663, 

665 (1997).

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

13 B.W., supra note 11.

14 C.M., Docket No. 19-1211 (issued August 5, 2020); Robert G. Burns, supra note 10.

15 U.C., Docket No. 19-1753 (issued June10, 2020); Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma 

Matthews, 44 ECAB 765, 770 (1993).
6

and Board precedent,

16 provide that a request for reconsideration must be in writing, be signed and 

dated by the claimant or the authorized representative, be accompanied by relevant new evidence 

or argument not considered previously, and identify the decision and the specific issues for which 

reconsideration is requested. Dr. Corrente was not appellant’s authorized representative. As such, 

his report does not constitute a request for reconsideration. 17

Because appellant’s request for reconsideration was untimely filed, she must demonstrate 

clear evidence of error by OWCP in the denial of her traumatic injury claim.

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

reconsideration without complying with the review requirement of FECA and its implemen ting 

regulations.18 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.19 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.20 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.21

In denying appellant’s August 26, 2021 request for reconsideration, OWCP acknowledged 

appellant’s reconsideration request and receipt of the May 13, June 24, July 22, and August 19, 

2022 reports from Dr. Corrente. However, it failed to analyze this evidence as to whether it was 

sufficient to demonstrate clear evidence of error and did not make findings explaining the basis of 

its decision.22 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.23

16 S.C., Docket No. 13-0738 (issued July 8, 2013); I.C., Docket No. 14-0170 (issued June 3, 2014).

17 M.P., Docket No. 19-0674 (issued December 16, 2019).

18 See Order Remanding Case, F.K., Docket No. 22-1239 (issued December 13, 2022); M.G.,Docket No. 21-0893 

(issued December 27, 2021); T.J.,Docket No. 21-0586 (issued September 30, 2021); see also 20 C.F.R. § 10.607(b).

19 5 U.S.C. § 8124(a).

20 20 C.F.R. § 10.126.

21 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).

22 See id.

23 Id.
7

CONCLUSION

The Board finds that OWCP properly found 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.

ORDER

IT IS HEREBY ORDERED THAT the October 12, 2022 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: August 1, 2023

Washington, DC

Janice B. Askin, Judge

Employees' Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees' Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees' Compensation Appeals Board