United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.M., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Waco, TX, Employer

__________________________________________

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Docket No. 20-1466

Issued: January 3, 2023

Appearances: Case Submitted on the Record

Sarah Toben, 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 July 30, 2020 appellant, through counsel, filed a timely appeal from a February 4, 20202

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

days has elapsed from OWCP’s last merit decision, dated February 2, 2017, to the filing of this 

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 The Board notes that appellant, through counsel, specifically appealed OWCP’s February4, 2020 nonmerit 

decision. Although OWCP’s March27, 2020 merit overpayment decision is within the Board’s jurisdiction, she has 

not appealed that decision. Therefore, the Board will not address the March 27, 2020 merit decision in this appeal. 

20 C.F.R. § 501.3(c)(4); see E.R., Docket No. 20-1110 (issued December 23, 2020).
2

appeal, pursuant to the Federal Employees’Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) 

and 501.3, the Board lacks jurisdiction to review the merits of this claim. 4

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 May 19, 2016 appellant, then a 70-year-old carrier/clerk, filed an occupational disease 

claim (Form CA-2) alleging that she sustained arthritis of the bilateral hands, feet, hips, and wrists 

causally related to factors of her federal employment which included repetitive work duties of 

pushing and pulling equipment, lifting trays, tubs, and bags of mail, walking, stooping, bending, 

and reaching above the shoulders without restrictions since 2012. She indicated that she first 

became aware of her condition on or about May 1, 2012 and its relationship to her federal 

employment on April 29, 2016. A supervisor indicated that appellant continued to work a 

modified assignment. 

By decision dated August 8, 2016, OWCP accepted appellant’s claim for internal 

derangements of the bilateral knees, bilateral carpal tunnel syndrome (CTS), and plantar fascial 

fibromatosis. 

On August 29, 2016 appellant filed a claim for compensation (Form CA-7) for leave 

without pay from August 18 through September 15, 2016. On October 3, 2016 she filed a Form 

CA-7 claiming compensation for leave without pay for the period September 15, 2016 and 

continuing. 

By decision dated October 13, 2016, OWCP denied appellant’s claim for wage-loss 

compensation for the period August 18, 2016 and continuing. It noted that her claim had been 

accepted for internal derangements of the bilateral knees, bilateral CTS, and plan tar fascial 

fibromatosis. OWCP found that the medical evidence of record failed to support disability during 

the period claimed. 

In an appeal request form received on November 7, 2016 appellant requested a review of 

the written record before OWCP’s Branch of Hearings and Review. 

3

5 U.S.C. § 8101 et seq.

4 The Board notes that following the February 4, 2020 decision appellant submitted additional evidence to OWCP. 

However, 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

On December 12, 2016 appellant filed a Form CA-7 claiming compensation for leave 

without pay from September 16, 2016 and continuing. 

In a letter dated December 28, 2016, OWCP replied to the Form CA-7 dated 

December 16, 2016. It noted that appellant’s request for compensation for September 16, 2016 

and continuing was not payable and advised referring to the appeal rights contained in its 

October 13, 2016 decision. 

By decision dated February 2, 2017, a representative of OWCP’s Branch of Hearings and 

Review affirmed the October 13, 2016 OWCP decision, finding that appellant had not submitted 

sufficient medical evidence to establish disability for work for the period August 18, 2016 and 

continuing. She noted that appellant’s claim had been accepted for internal derangements of the 

bilateral knees, bilateral CTS, and plantar fascial fibromatosis, but foot arthritis had not been 

accepted as work related. It stated that as the latter condition had not been accepted as work 

related, as appellant’s physician had not differentiated appellant’s symptoms from her underlying 

rheumatoid arthritis or age-related arthritis, and as appellant’s physician had not explained what 

caused appellant’s condition to worsen on August 18, 2016 such that appellant could not perform 

duties of her federal employment, OWCP appropriately denied the claim for compensation. 

On April 4, 2017 appellant underwent OWCP-approved right hand carpal tunnel surgery. 

On April 27, 2017 appellant filed Forms CA-7 claiming compensation for leave without 

pay for the period January 21 through April 4, 2017. On May 1, 2017 she filed a Form CA-7 

claiming compensation for three hours of leave buy back on April 28, 2016. 

In a letter dated May 8, 2017, OWCP replied to the Forms CA-7 dated April 27, 2017. It 

noted that appellant’s request for compensation for January 21 through April 4, 2017 was not 

payable and advised her that she should refer to the appeal rights contained in its February 2, 2017 

decision. 

On June 13, 2017 appellant filed Forms CA-7 claiming compensation for leave without 

pay for the period April 4 through June 17, 2017. 

On July 25, 2017 appellant underwent OWCP-approved endoscopic plantar fasciotomy of 

the right foot. 

By letter dated August 17, 2017, OWCP informed appellant thatshe would receive wageloss compensation on the periodic rolls for wage loss due to disability for work. Appellant’s first 

payment was for the period April 4 through July 22, 2017 and her regular payment began with the 

period July 23 through August 19, 2017. 

On February 2, 2018 appellant underwent OWCP-approved endoscopic plantar fasciotomy 

for treatment of plantar fasciitis of the left foot. 

In a statement of accepted facts (SOAF) dated March 28, 2018, OWCP noted that 

appellant’s claim was accepted for internal derangements of the bilateral knees, bilateral CTS, 

plantar fascial fibromatosis, lesion of the left ulnar nerve, primary osteoarthritis of the right ankle, 
4

foot, and first carpometacarpal joint of the right hand, and injury of the right ulnar nerve at the 

forearm level. 

On October 15, 2018 appellant underwent an OWCP-approved right knee trochlear 

microfracture surgical procedure and medial femoral condyle chondroplasty. On November 16, 

2018 she underwent an OWCP-approved first metatarsophalangeal joint arthrodesis of the right 

foot and harvest of bone marrow aspirate of the right tibia. 

On May 9, 2019 appellant returned to work at eight hours per day in a limited-duty 

modified city carrier position. 

On November 7, 2019 appellant, through counsel, requested reconsideration of the 

decision of February 2, 2017. Counsel noted that he was supplementing her January 27, 2018 

request for reconsideration. Appellant’s letter dated January 27, 2018 was attached, the record 

does not reflect that this letter was previously received by OWCP. Counsel further noted that her

claim had originally been accepted for internal derangements of the bilateral knees, bilateral CTS, 

and plantar fascial fibromatosis, and that OWCP indicated in a SOAF dated March 28, 2018 that 

the claim included primary osteoarthritis of the right ankle, foot, and first carpometacarpal joint of 

the right hand, lesion of the left ulnar nerve, and injury of the right ulnar nerve at the forearm level. 

He attached medical reports and argued that they established appellant’s disability for work from 

August 18, 2016 through April 3, 2017. In an attached letter dated September 5, 2019, Dr. Pedro 

Loredo, a Board-certified general and hand surgeon, opined that she was unable to return to work 

from August 18, 2016 through April 3, 2017 due to her work-related conditions of unilateral 

primary osteoarthritis of the right first carpometacarpal joint of the hand, bilateral CTS, a lesion 

of the left ulnar nerve, a right arm injury at the forearm level, primary osteoarthritis of the right 

hand and foot, bilateral plantar fibromatosis, and bilateral derangements of the knees. He noted 

that at work, appellant performed highly repetitive tasks on a daily basis including repetitive 

gripping, turning, bending, twisting, lifting, and carrying and that her duties included: loading, 

sorting, casing, and carrying mail of up to 70 pounds, prolonged standing and walking, and

delivering mail. Dr. Loredo opined that these duties were strenuous and highly repetitive and that 

her accepted conditions developed as a result of these repetitive activities over a prolonged period 

of time. He stated that appellant’s accepted conditions prevented her from performing job duties 

with or without restrictions including casing, sorting, and delivering mail as she struggled with 

increased pain and functional limitations in her feet, knees, arms, and hands. Gripping, sorting, 

and casing mail was difficult for her given her bilateral CTS and osteoarthritis of the first 

carpometacarpal joint of the right hand. As a result of these increased symptoms, Dr. Loredo 

stated that appellant was taken off work entirely during this time period. He noted that performing 

work in any capacity during this time period, even sedentary desk work, would have certainly 

caused further aggravation of her feet, knee, arm, and hand conditions. Dr. Loredo opined within 

reasonable medical certainty that appellant was totally disabled and unable to work from 

August 18, 2016 through April 3, 2017 due to her accepted conditions. Appellant also attached 

additional medical reports dated from May 1, 2012 through January 31, 2020. 

In an SOAF dated January 31, 2020, OWCP indicated that appellant’s claim was accepted 

for the conditions noted in its SOAF of March 28, 2018, as well as abscess of the right tendon 

sheath of the right hand and right knee tear of the medial meniscus. 
5

By decision dated February 4, 2020, OWCP denied appellant’s request for reconsideration 

as untimely and failing to present 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.5 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.6 Timeliness is determined by the document receipt date of 

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

Employees’ Compensation System (iFECS).7 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.8

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. 9 If a request for 

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

review.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.12 Evidence which does not raise a 

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

clear evidence of error.13 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.14 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 

5

5 U.S.C. § 8128(a); see M.E., Docket No. 18-1497 (issued March 1, 2019); J.W., Docket No. 18-0703 (issued

November 14, 2018); Y.S., Docket No. 08-0440 (issued March 16, 2009).

6

20 C.F.R. § 10.607(a).

7 Federal (FECA) Procedure Manual, Part 2 --Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

8

See M.E., supra note 5; E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 

104 (1989).

9

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).

10 G.G., Docket No. 18-1074 (issued January 7, 2019); see also id. at § 10.607(b); supranote 7 at Chapter 2.1602.5 

(February2016).

11 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); see Dean D. Beets, 43 ECAB 1153 (1992).

12 Id.; see also Leona N. Travis, 43 ECAB 227(1999).

13 J.F., supra note 11; Jimmy L. Day, 48 ECAB 652 (1997).

14 Id.
6

the new evidence demonstrates clear error on the part of OWCP.15 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 provide that the term clear evidence of error is intended to represent 

a difficult standard.17 The claimant must present evidence which on its face shows that OWCP 

made an error. 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.18 The Board makes an independent determination of 

whether a claimant has demonstrated clear evidence of error on the part of OWCP. 19

ANALYSIS

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

reconsideration was untimely filed. The last merit decision in this case was dated 

February 2, 2017. Appellant had one year from that decision to request reconsideration. As her

reconsideration request was not received until November 7, 2019, more than one year after the 

February 2, 2017 merit decision, it was untimely filed. Consequently, appellant must demonstrate 

clear evidence of error by OWCP in the February 2, 2017 decision.

The Board further finds that appellant has demonstrated clear evidence of error by OWCP 

in its February 2, 2017 decision.

To determine whether appellant has demonstrated clear evidence of error, OWCP will 

conduct a limited review of the evidence submitted and arguments raised in support of the request 

in order to determine whether such evidence or argument is sufficient to show error in its prior 

decision.20 Appellant stopped work on August 18, 2016 and returned to limited-duty work for 

eight hours per day on May 9, 2019. In its February 2, 2017 decision, OWCP denied her claim for 

compensation for leave without pay for the period August 18, 2016 and continuing. It explained 

that appellant had not submitted sufficient medical evidence to establish disability for work for the 

claimed period, in part because her diagnosed foot arthritis had not been accepted as work related. 

As of April 4, 2017, OWCP placed appellant on the periodic rolls for wage-loss due to disability

for work. In a SOAF dated March 28, 2018, it noted that her claim had been accepted for internal 

derangements of the bilateral knees, bilateral CTS, plantar fascial fibromatosis, lesion of the left 

15 Id.

16 J.F., supra note 11; RobertG. Burns, 57 ECAB 657 (2006).

17 Supra note 7.

18 P.H., Docket No. 19-1354, (issued March 13, 2020); J.S., Docket No. 16-1240 (issued December 1, 2016); supra

note 7 at Chapter 2.1602.5(a) (February 2016).

19 See M.E., supra note 5; D.S.,Docket No. 17-0407 (issued May 24, 2017).

20 See 20 C.F.R. § 10.60b (b); V.M., Docket No. 18-1184 (issued July 10, 2019); NelsonT. Thompson, 43 ECAB 

919 (1992).
7

ulnar nerve, primary osteoarthritis of the right ankle, foot, and first carpometacarpal joint of the 

right hand, and injury of the right ulnar nerve at the forearm level. In a SOAF dated January 31, 

2020, OWCP indicated that appellant’s claim was accepted for the conditions noted in its SOAF 

of March 28, 2018, as well as abscess of the right tendon sheath of the right hand and right knee 

tear of the medial meniscus.

The Board has held that the evidence submitted with an untimely reconsideration request 

must relate to the issue presented and the evidence that was before OWCP at the time of the prior 

decision.21 On reconsideration, counsel provided a full list of appellant’s accepted conditions, 

including primary osteoarthritis of the right ankle and foot which were noted as accepted 

conditions in the SOAF. Also submitted was a September 5, 2019 letter from Dr. Loredo, who 

opined that she was unable to return to work from August 18, 2016 through April 3, 2017 due to 

her work-related accepted conditions of unilateral primary osteoarthritis of the right first 

carpometacarpal joint of the hand, bilateral CTS, a lesion of the left ulnar nerve, a right arm injury 

at the forearm level, primary osteoarthritis of the right hand and foot, bilateral plantar fibromatosis, 

and bilateral derangements of the knees. The Board has reviewed counsel’s request for 

reconsideration and the September 5, 2019 letter from Dr. Loredo. OWCP denied appellant’s 

claim for compensation on February 2, 2017 in part because foot arthritis was not an accepted 

condition under her claim, but later generated a SOAF including primary osteoarthritis of the right 

ankle and foot. Counsel noted that this condition had been accepted as work related by OWCP 

and Dr. Loredo attributed her disability for the period August 18, 2016 through April 3, 2017 due 

to her accepted conditions, including primary osteoarthritis of the right hand and foot. 

Accordingly, the Board finds that appellant, through counsel, has raised a substantial question as 

to the correctness of the February 2, 2017 decision denying her claim for compensation for 

disability from work beginning August 18, 2016. Thus, OWCP abused its discretion in denying 

appellant’s untimely request for reconsideration.22

The Board finds that OWCP improperly denied appellant’s request for reconsideration as 

she has demonstrated clear evidence of error in this case. The Board will reverse OWCP’s 

February 4, 2020 decision and remand the case for an appropriate decision on the merits of her 

claim.

CONCLUSION

The Board finds that appellant has demonstrated clear evidence of error in OWCP’s 

February 2, 2017 merit decision and, thus, OWCP improperly denied her request for 

reconsideration of the merits of her claim.

21 See V.M., id.; K.N., Docket No. 13-0911 (issued August 21, 2013); J.S., Docket No. 10-0385 (issued 

September 15, 2010).

22 See V.L., Docket No. 17-1493 (issued September 12, 2018); D.M., Docket No. 18-0385 (issued 

September 4, 2018).
8

ORDER

IT IS HEREBY ORDERED THAT the February 4, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed and this case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: January 3, 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