United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Jacksonville, FL, Employer

__________________________________________

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Docket No. 23-0603

Issued: September 27, 2023

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 20, 2023 appellant, through counsel, filed a timely appeal from a February 27, 

2023 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days has elapsed from OWCP’s last merit decision, dated August 23, 2021, 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 authoritie s for investigation.

2

5 U.S.C. § 8101 et seq.
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 November 6, 2020 appellant, then a 44-year-old postal rural carrier, filed a traumatic 

injury claim (Form CA-1) alleging that on October 29, 2020 he injured both wrists and his right 

knee when he tripped on packages and fell while in the performance of duty. He stopped work 

that day. 

By decision dated March 29, 2021, OWCP denied appellant’s claim. It found that the 

evidence was insufficient to establish that a medical condition was causally related to the accepted 

employment incident. OWCP concluded, therefore, that the requirements had not been met to 

establish an injury as defined by FECA. 

On March 30, 2021 OWCP received March 19, 2021 progress notes from a physician 

assistant, a March 10, 2021 duty status report (Form CA-17) from a nurse practitioner, appellant’s 

December 16, 2020 magnetic resonance imaging scan results signed by a nurse practitioner, and 

October 29, 2020 emergency room records from a nurse. It also received October 29, 2020 x-rays 

of the right and left wrist, interpreted by Dr. Ryan K. Tompkins, a diagnostic radiologist, which 

indicated no acute findings. 

On April 5, 2021 counsel for appellant requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on July 6, 2021. 

By decision dated August 23, 2021, an OWCP hearing representative affirmed as modified 

the March 29, 2021 decision. The hearing representative explained that the factual evidence of 

record supported that appellant tripped and fell over packages on October 29, 2020; however, 

appellant “failed to supply sufficient medical evidence to support his having incurred an injury”

under FECA. The hearing representative, therefore, affirmed, but modified, the March 29, 2021 

decision to reflect a denial based on fact of injury rather than causal relationship.

An operative report of Dr. Anup Patel, a Board-certified hand surgeon, dated July 21, 2021, 

indicating that appellant had undergone right carpal tunnel and cubital tunnel releases, and a right 

anterior submuscular transposition of the ulnar nerve. His preoperative and postoperative 

diagnoses were right carpal tunnel syndrome and right cubital tunnel syndrome. No opinion 

regarding causal relationship was provided in this report. On October 21, 2021 OWCP received a

progress report from Jeffrey Carameros, a nurse practitioner, dated August 10, 2021.

Mr. Carameros related that appellant suffered a fall at work on October 29, 2020 and landed on 

his hands and wrists. He further related that, “The results of this after surgical evaluation by 

Orlando hand surgeons identified the fall as the result of the traumatic injury sustained to the 

bilateral transverse carpel ligaments in both hands as well as a tethered cord in the right wrist.” 

On February 13, 2023 appellant, through counsel, requested reconsideration of the 

August 23, 2021 decision. 
3

By decision dated February 27, 2023, OWCP denied appellant’s reconsideration request, 

finding that it was untimely filed and that the evidence submitted 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. 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 (i.e., the “received date”

in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).5 Imposition of this 

one-year filing limitation does not constitute an abuse of discretion. 6

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.7 Its 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 OWCP. 8 In this 

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

prior evidence of record.9

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

issue which was decided by OWCP.10 The evidence must be positive, precise, and explicit, and 

must manifest on its face that OWCP committed an error. Evidence that 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. The Board makes an independent 

3

Id. at § 8128(a). See also L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

4

20 C.F.R. § 10.607(a).

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

6 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).

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, 501-02 (1990).

8 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(b); supra note 5 at Chapter 2.1602.5 (September 2020).

9

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).

10 S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 5 at Chapter 2.1602.5(a) (September 2020).
4

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

OWCP.11

ANALYSIS

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.

OWCP’s regulations12 and procedures13 establish a one-year time limit for requesting 

reconsideration, which begins on the date of the last merit decision issued in the case. A right to 

reconsideration within one year also accompanies any subsequent merit decision on the issues. 14 

The most recent merit decision pertaining to the denial of appellant’s traumatic injury claim was 

dated August 23, 2021. As OWCP received his request for reconsideration on February 13, 2023 

more than one year after the August 23, 2021 decision, the Board finds that it was untimely filed. 

Because appellant’s request was untimely filed, he must demonstrate clear evidence of error on 

the part of OWCP in its August 23, 2021 merit decision denying his traumatic injury claim.

The Board further finds that appellant failed to submit the type of positive, precise, and 

explicit evidence which manifests on its face that OWCP committed an error in its August 23, 

2021 merit decision.15

OWCP denied appellant’s claim, finding that the factual evidence of record supported that 

he tripped and fell over packages on October 29, 2020; however, he “failed to supply sufficient 

medical evidence to support his having incurred an injury”under FECA. In support of his untimely 

request for reconsideration, appellant submitted an operative report of Dr. Patel dated July 21, 

2021, indicating that he had undergone right carpal tunnel and cubital tunnel releases, and a right 

anterior submuscular transposition of the ulnar nerve. Dr. Patel’s preoperative and postoperative 

diagnoses were right carpal tunnel syndrome and right cubital tunnel syndrome. OWCP also 

received a progress report from Mr. Carameros, a nurse practitioner, dated August 10, 2021.

The July 21, 2021 operative note from Dr. Patel did not mention any injury at work and 

did not offer any opinion as to the cause of appellant’s diagnosed conditions of right carpal tunnel 

syndrome and right cubital tunnel syndrome. As noted, evidence that does not raise a substantial 

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

11 U.C., Docket No. 19-1753 (issued June 10, 2020).

12 20 C.F.R. § 10.607(a); A.P., Docket No. 21-1222 (issued February 9, 2023); see F.N., Docket No. 18-1543 

(issued March 6, 2019); Alberta Dukes, 56 ECAB 247 (2005).

13 Supra note 5 at Chapter 2.1602.4 (September 2020); A.P., id.; see L.A., Docket No. 19-0471 (issued October 29, 

2019); Veletta C. Coleman, 48 ECAB 367, 370 (1997).

14 20 C.F.R. § 10.607(b); A.P., id.; see Debra McDavid, 57 ECAB 149 (2005).

15 D.M., Docket No. 22-1152 (issued March 28, 2023); see G.B., Docket No. 19-1762 (issued March 10, 2020); 

Leona N. Travis, 43 ECAB 227, 240 (1991). 
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evidence of error.16 The Board finds that the report from Dr. Patel fails to meet appellant’s burden

to provide clear evidence that OWCP erred in its August 23, 2021 decision.

The Board notes that appellant also submitted the August 10, 2021 progress notes from

Mr. Carameros, a nurse practitioner. However, the Board has held that reports from physician 

assistants and nurse practitioners are of no probative value as they do not constitute competent 

medical evidence.17 Consequently, the Board finds that this report is insufficient to demonstrate 

clear evidence of error by OWCP in its August 23, 2021 decision. 

The Board has held that the term clear evidence of error is intended to represent a difficult 

standard.18 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. Therefore, OWCP properly denied 

appellant’s request for reconsideration, finding that it was untimely filed, and failed to demonstrate 

clear evidence of error.

19

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.

16 20 C.F.R. § 10.607(a); supra note 7. 

17 See Y.B., Docket No. 21-0092 (issued October 15, 2021);see B.R.,Docket No. 19-0088 (issued August 13, 2019);

Ricky S. Storms, 52 ECAB 349 (2001). Section 8101(2) of FECA provides that a physician includes surgeons, 

podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope 

of their practice a s defined by state law. 5 U.S.C. § 8101(2). Furthermore, under section 8101(2) of FECA, the term 

physician includes chiropractors only to the extent that their reimbursable services are limited to treatment consisting 

of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist and subject to 

regulations by the Secretary. See also supra note 5 at Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 

ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not 

competent to render a medical opinion under FECA); R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse 

practitioners and physical therapists are not considered physicians under FECA); D.S.,Docket No. 09-0860 (issued 

November 2, 2009).

18 M.P., Docket No. 19-0200 (issued June 14, 2019).

19 J.C., Docket No. 20-1250 (issued May 24, 2021); W.D., Docket No. 19-0062 (issued April 15, 2019).
6

ORDER

IT IS HEREBY ORDERED THAT the February 27, 2023 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 27, 2023

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