United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.J., Appellant

and

U.S. POSTAL SERVICE, NORTH METRO 

FACILITY, Duluth, GA, Employer

__________________________________________

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Docket No. 21-0586

Issued: September 30, 2021

Appearances: Case Submitted on the Record

Misty Wenger, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 4, 2021 appellant, through her representative, filed a timely appeal from a

December 21, 2020 nonmerit decision of the Office of Workers’ Compensation Programs

(OWCP). As more than 180 days has elapsed from the last merit decision dated November 21, 

 

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

2019 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

ISSUE

The issue is whether OWCP properly denied appellant’s December 17, 2020 request for 

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

FACTUAL HISTORY

On October 4, 2019 appellant, then a 54-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on October 8, 2016 she sustained injuries to her right side due to falling 

out of her postal vehicle while in the performance of duty. She did not stop work.

In a statement dated October 4, 2019, appellant indicated that on October 8, 2016 she was 

exiting her postal vehicle when her foot missed the bumper, causing her to fall backward onto her 

hand in an attempt to break her fall. She tried to treat her symptoms at home initially, and then 

sought chiropractic care due to ongoing numbness and tingling in her right hand, shoulder and leg. 

Appellant noted that she was subsequently referred to a medical doctor and continued to work 

despite ongoing pain in her shoulder and lower back.

In support of her claim, appellant submitted medical evidence including treatment notes 

from Dr. Jason R. Hoover, a chiropractor, dated October 17 through November 29, 2016 for neck 

and back pain. Appellant also included a medical note dated September 30, 2019 from Dr. Fiona 

Baldwin, a family practitioner, indicating that she reported recurrent neck, shoulder and low back 

pain and hip pain for three years following a fall at work in October 2016. Dr. Baldwin diagnosed 

low back, hip, and neck pain.

In development letters dated October 15 and 29, 2019, OWCP informed appellant of the 

deficiencies of her claim. It advised her of the type of factual and medical evidence necessary, 

and requested a narrative medical report from her treating physician containing a detailed 

description of findings and a diagnosis, explaining how her work activities caused, contributed to, 

or aggravated her medical conditions. It afforded appellant 30 days to submit the necessary 

evidence.

In a November 8, 2019 medical note, Dr. Baldwin indicated that appellant reported 

recurrent neck, shoulder, low back, and hip pain due to a fall at work in October 2016, and that 

she had undergone magnetic resonance imaging studies which showed chronic tendinitis and 

bursitis of the right shoulder and degenerative disease of the cervical and lumbar spine and knees. 

She provided diagnoses of bursitis and tendinitis of the right shoulder and degenerative disease of 

 

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the December 21, 2020 decision, OWCP received additional evidence. The 

Board’s Rules of Procedure provides: “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. 
3

the cervical spine, lumbar spine, and knees. Dr. Baldwin opined that it would be reasonable to 

assume that appellant’s conditions stem from her history of a fall and were aggravated by ongoing 

repetitive job duties such as bending, twisting, and reaching.

In a separate statement dated November 13, 2019, appellant provided additional details 

regarding her treatment.

By decision dated November 21, 2019, OWCP denied appellant’s traumatic injury claim, 

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

with her accepted employment incident. It concluded that the requirements had not been met to 

establish an injury on October 8, 2016 causally related to the accepted employment incident.

OWCP continued to receive medical evidence, including a December 7, 2020 report of

Dr. Miguel E. Stubbs, an internal medicine specialist, who recounted the history of the accepted 

October 8, 2016 employment incident, as well as subsequent occupational disease claims. 

Dr. Stubbs opined that the October 2016 injury caused limitations on her ability to perform her job 

duties and that repetitive strain injuries over time due to highly repetitive work activities such as 

reaching, pushing, pulling, lifting, and carrying compounded those injuries.

On December 17, 2020 appellant requested reconsideration of OWCP’s November 21, 

2019 decision.

By decision dated December 21, 2020, OWCP denied appellant’s request for 

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

It referenced the reconsideration request and a report from Dr. Stubbs dated December 7, 2020.

LEGAL PRECEDENT

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

merit review.4 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.5 Timeliness is determined by the document receipt date, i.e., 

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 6 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.7

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 

 

4

5 U.S.C. § 8128(a); 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 2.1602.4(b) (February 2016).

7 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).
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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 

claimant’s request for reconsideration 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 which was decided by OWCP.11 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.12

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

clear evidence of error on the part of OWCP.14

ANALYSIS

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

reconsideration was untimely filed.

The last merit decision was issued on November 21, 2019. As her request for 

reconsideration was not received by OWCP until December 17, 2020, more than the one-year time 

 

8

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).

9 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); supra note 6at Chapter 2.1602.5 (February 2016).

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

11 S.C.,Docket No. 18-0126 (issued May 14, 2016); supra note 6at Chapter 2.1602.5(a) (February 2016).

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

13 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 6at Chapter 2.1602.5(a) (February 2016).

14 D.S., Docket No. 17-0407 (issued May 24, 2017).
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limitation, pursuant to 20 C.F.R. § 10.607(a), the Board finds that the request for reconsideration 

was untimely filed. Consequently, appellant must demonstrate clear evidence of error by OWCP 

in denying the claim.15 The Board further finds that, in its December 21, 2020 decision, OWCP 

summarily denied appellant’s request for reconsideration without complying with the review 

requirement of FECA and its implementing regulations.16 As noted above 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.17 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. 18 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.19 In the December 21, 2020 decision, it denied appellant’s December 17, 2020 

reconsideration request, finding it was untimely filed as it was received more than a year following 

the most recent merit decision dated November 21, 2019. It referenced the reconsideration request 

and a report from Dr. Stubbs dated December 7, 2020, but failed to analyze this evidence as to 

whether it was sufficient to demonstrate clear evidence of error. 

The Board will therefore set aside OWCP’s December 21, 2020 decision and remand the 

case 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.

 

15 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).

16 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).

17 5 U.S.C. § 8124(a).

18 20 C.F.R. § 10.126.

19 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 December 21, 2020 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: September 30, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board