United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

U.S. POSTAL SERVICE, HIGHPOINT 

BRANCH, Clearwater, FL, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-1203

Issued: January 22, 2020

Appearances: Case Submitted on the Record

Richard S. Webster, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On May 9, 2019 appellant, through counsel, filed a timely appeal from a November 21, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days have elapsed from OWCP’s last merit decision of the issue on appeal, dated July 9, 

2012, 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 to review the merits of this case.3

 

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.

3 The Board notes that appellant submitted additional evidence on appeal. 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.
2

ISSUE

The issue is whether OWCP properly denied appellant’s October 2, 2018 request for 

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

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances set forth in 

the Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.

On June 18, 2009 appellant, then a 52-year-old clerk, filed a traumatic injury claim (Form 

CA-1) alleging that on that day he sustained an injury to his right shoulder, arm, hand, ribs, and 

low back when he tripped on a plastic strap while in the performance of duty. On December 9, 

2010 OWCP accepted his claim for lumbar sprain and right shoulder sprain.5 On April 3, 2012 it

expanded appellant’s accepted conditions to include temporary aggravation of lumbar 

degenerative disc disease, right shoulder impingement, and myofascial pain.

On April 26, 2012 appellant filed a claim for wage-loss compensation (Form CA-7) for the 

period January 8, 2011 to March 31, 2012. 

In a development letter dated May 4, 2012, OWCP advised appellant of the deficiencies of 

his claim and informed him of the evidence necessary to establish his claim. Appellant was

afforded 30 days to submit the necessary evidence. 

In a report dated May 16, 2012, Dr. Ashraf F. Hanna, Board-certified in pain medicine, 

reviewed appellant’s history of injury and performed a physical examination. He diagnosed 

discogenic syndrome, lumbar spinal stenosis, facet syndrome, and thoracic or lumbosacral neuritis 

or radiculitis. Under a heading titled, “work status,” Dr. Hanna noted temporary total disability.

By decision dated July 9, 2012, OWCP denied appellant’s claim, finding that appellant had 

not established that he was disabled during the period commencing January 8, 2012.

Appellant continued to file wage-loss compensation claims (Form CA-7). He submitted 

reports dated December 7, 2012, and March 11, April 23, May 22, and September 11, 2013 from

Dr. Hanna who noted that appellant was temporarily totally disabled.

On November 16, 2015 appellant, through counsel, requested reconsideration of OWCP’s 

July 9, 2012 decision. 

In a report dated January 22, 2016, Dr. Hanna reviewed appellant’s history of injury and 

performed a physical examination. He diagnosed chronic pain syndrome, displacement of lumbar 

intervertebral disc without myelopathy, paresthesia, and lumbar spinal stenosis. 

 

4 Docket No. 14-0558 (issued December 17, 2014).

5 On January 14, 2011 appellant filed a wage-loss compensation claim (Form CA-7) for leave without pay for total 

disability for the period August 3, 2009 to January 7, 2011. By decision dated April 6, 2015, OWCP accepted his

claim for wage-loss compensation for the period August 3, 2009 to January 7, 2011 for 3,056.14 hours of leave without 

pay.
3

By decision dated February 19, 2016, OWCP denied appellant’s request for reconsideration

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

Thereafter, appellant resubmitted reports from Dr. Hanna that had already been considered 

by OWCP’s in its decisions dated February 26, 2010, and August 2 and October 16, 2013. He also 

submitted a report not previously considered by OWCP dated October 6, 2016 from Dr. Hanna in 

which he noted appellant’s history of injury and reiterated his diagnoses.

On October 2, 2018 appellant, through counsel, again requested reconsideration of 

OWCP’s July 9, 2012 decision. 

By decision dated November 21, 2018, 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.6 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.7 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).8 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.9

OWCP may not deny a reconsideration request solely because it was untimely filed. When 

a claimant’s application for review is untimely filed, it must nevertheless undertake a limited 

review to determine whether it demonstrates clear evidence of error.10 If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.11

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

issue which was decided by OWCP.12 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.13 Evidence which does not raise a 

 

6 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).

7 20 C.F.R. § 10.607(a).

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

9 See M.E., supra note 6; E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 

104 (1989).

10 See 20 C.F.R. § 10.607(b); M.E., supra note 6; Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

11 G.G., Docket No. 18-1074 (issued January 7, 2019); see also 20 C.F.R. § 10.607(b); supra note 8 at Chapter 

2.1602.5 (February 2016).

12 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).

13 Id.; see also Leona N. Travis, 43 ECAB 227 (1999).
4

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

clear evidence of error.14 It is not enough merely to demonstrate that the evidence could be 

construed so as to produce a contrary conclusion.15 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.16 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.17

OWCP’s procedures note that the term clear evidence of error is intended to represent a 

difficult standard.18 The claimant must present evidence which, on its face, demonstrates 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.19 The Board makes an independent 

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

OWCP.20

ANALYSIS

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

reconsideration was untimely filed and failed to demonstrate clear evidence of error.

OWCP’s regulations21 and procedures22 establish a one-year time limit for requesting 

reconsideration, which begins on the date of the last merit decision issued in the case. The last 

decision on the merits of the issue of disability for the claimed period was OWCP’s July 9, 2012 

decision, which had found that the evidence of record failed to establish that appellant was disabled 

during the period on and after January 8, 2012. Appellant had one year from the date of that 

decision to timely request reconsideration. As his reconsideration request was received on 

 

14 J.F., supra note 12; J.D., supra note 11; Jimmy L. Day, 48 ECAB 652 (1997).

15 Id.

16 Id.

17 J.F., supra note 12; M.E., supra note 6; Robert G. Burns, 57 ECAB 657 (2006).

18 See G.G., supra note 11.

19 J.F., supra note 12; J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 8 at Chapter 2.1602.5(a) 

(February 2016).

20 See M.E., supra note 6; D.S., Docket No. 17-0407 (issued May 24, 2017).

21 20 C.F.R. § 10.607(a); see G.G., supra note 11; Alberta Dukes, 56 ECAB 247 (2005).

22 Supra note 8 at Chapter 2.1602.4 (February 2016); see A.F., Docket No. 18-0645 (issued October 26, 2018);

Veletta C. Coleman, 48 ECAB 367, 370 (1997).
5

October 2, 2018, over six years after the July 9, 2012 merit decision, it was untimely filed. 

Therefore, appellant must demonstrate clear evidence of error by OWCP.23

The Board finds that appellant failed to demonstrate clear evidence of error on the part of 

OWCP. On reconsideration appellant submitted medical reports from Dr. Hanna which were 

previously considered by OWCP, as well as a new report from Dr. Hanna that failed to opine as to

the claimed disability period. He did not sufficiently explain how this evidence raised a substantial 

question as to the correctness of OWCP’s decision.24 

The Board accordingly finds that the evidence submitted on reconsideration is of 

insufficient probative value to shift the weight of the evidence in favor of appellant and raise a 

substantial question as to the correctness of OWCP’s July 9, 2012 decision.25 Appellant has not 

raised an argument or submitted evidence that demonstrates on its face that OWCP committed an 

error in denying his claim, nor has he provided evidence of sufficient probative value to raise a 

substantial question as to the correctness of OWCP’s July 9, 2012 decision. Thus, OWCP properly 

determined that his untimely request for reconsideration failed to demonstrate clear evidence of 

error.26

CONCLUSION

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

reconsideration was untimely filed and failed to demonstrate clear evidence of error.

 

23 20 C.F.R. § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

24 See G.G., supra note 11; see also A.M., Docket No. 10-0526 (issued November 8, 2010).

25 See G.G., supra note 11; J.S., Docket No. 10-0385 (issued September 15, 2010); B.W., Docket No. 10-0323 

(issued September 2, 2010).

26 See S.M., Docket No. 18-0075 (issued April 11, 2018); see also M.B., Docket No. 17-1505 (issued 

January 9, 2018).
6

ORDER

IT IS HEREBY ORDERED THAT the November 21, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 22, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board