United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

St. Louis, MO, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 23-0282

Issued: May 26, 2023

Appearances: Case Submitted on the Record

Joseph A. Ott, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 21, 2022 appellant filed a timely appeal from a September 21, 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 September 1, 2021, to the filing of this

appeal, pursuantto the FederalEmployees’CompensationAct2(FECA) and 20C.F.R. §§ 501.2(c)

and 501.3, the Board lacks jurisdiction over 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, following the September 21, 2022 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. 
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 19, 2020 appellant, then a 51-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that on October 18, 2020 she injured her lower back when she 

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

In a medical report dated October 18, 2020, Dr. James Toombs, a Board-certified family 

medicine specialist, noted that appellant related complaints of severe lower back pain, which she 

attributed to falling backwards a distance of two feet and landing on her buttocks while at work on 

October 18, 2020. He ordered x-rays of the lumbosacral spine, which revealed spondylolisthesis 

of L4 on L5. 

In an emergency department note dated October 18, 2020, Dr. Luke Hofkamp, a Boardcertified emergency medicine specialist, noted that appellant related a history of lower back pain 

after falling off of a mail truck while at work. On physical examination, he noted bilateral

paraspinal muscle spasm and tenderness, but no midline tenderness or deformities throughout the 

spine. Dr. Hofkamp diagnosed acute bilateral low back pain without sciatica and spasm of muscle 

of lower back. 

In a medical report dated October 22, 2020, Nancy Woods, a nurse practitioner, examined 

appellant and diagnosed low back pain, spondylolisthesis, and a contusion of the lower back and 

pelvis. She recommended physical therapy and released appellant to return to work with no 

kneeling, squatting, jumping, running, climbing ladders, prolonged sitting, bending forward, or 

twisting, and no lifting greater than five pounds. 

In a report dated October 29, 2020, Denise Wagster, a nurse practitioner, noted similar 

examination findings and continued the same work restrictions. 

In a note dated November 5, 2020, Jessica Meissner, a medical technician, released 

appellant to return to work part time, four hours per day, with the same prior restrictions. She 

diagnosed back pain and lumbar spondylolisthesis. 

On December 2, 2020 OWCP accepted the claim for contusion of lower back and pelvis, 

muscle spasm of back, sprain of ligaments of the lumbar spine, and strain of muscle, fascia, and 

tendon of the lower back. 

Appellant subsequently submitted claims for compensation (Form CA-7) for intermittent 

disability from work for the period December 3, 2020 through July 16, 2021. 

On December 24, 2020 appellant began receiving physical therapy treatment to her lower 

back. 

In a note and Form CA-17 dated January 7, 2021, Laura Marshall, a nurse practitioner, 

diagnosed low back pain and spondylolisthesis and recommended that appellant continue physical 
3

therapy. She released appellant to return to work four hours per day with no kneeling, twisting, 

jumping, running, or climbing ladders and no lifting greater than 10 pounds. 

In a January 29, 2021 medical report, Dr. R. Peter Mirkin, a Board-certified orthopedic 

surgeon, noted that appellant related complaints of lower back pain, which radiated down her left 

leg, after falling at work on October 18, 2020. He performed a physical examination, which 

revealed a limp, limited range of motion of the lumbar spine, a markedly positive straight leg raise 

on the left, and weakness in the left foot dorsiflexor. Dr. Mirkin obtained x-rays, which 

demonstrated spondylolisthesis of L4 on L5. He diagnosed spondylolisthesis with radicular 

symptoms and recommended that appellant undergo magnetic resonance imaging (MRI) scan of 

the lumbar spine. In a duty status report (Form CA-17) of even date, Dr. Mirkin maintained the 

same work restrictions. 

A report of MRI scan of the lumbar spine dated February 22, 2021 revealed 

spondylolisthesis at L4-5 with resulting lateral recess and foraminal stenosis; bilateral disc 

protrusions into the foramina at L5-S1; prominent Schmorl’s node with disc invagination into the 

superior endplate of L3 and additional disc protrusion extending to the foramina causing 

narrowing, but no central canal stenosis; and foraminal narrowing at L3-4 due to disc bulging with

facet arthropathy. 

In a report dated February 26, 2021, Dr. Mirkin reviewed appellant’s MRI scan results and

noted a left lateral protrusion at L5-S1, which was pressing on the left nerve root. He 

recommended surgery, including decompression and fusion, which she declined. Dr. Mirkin 

indicated that appellant was also a candidate for epidural steroid injections. He recommended that

she continue the same part-time work restrictions. 

In a May 27, 2021 report, Dr. Richard S. Gahn, a Board-certified anesthesiologist, noted 

that appellant related persistent, severe pain in the low back, buttocks, thighs, and right lower 

extremity toward the calf, ankle, and foot, which she attributed to a fall at work on 

October 18, 2020. He performed a physical examination, which revealed pain with flexion, 

extension, and lateral flexion of the spine, spinous process tenderness over the L4 area, and painful 

straight raise on the right. Dr. Gahn noted that strength and sensation were normal in the legs, and 

there were no trigger points identified. He reviewed the MRI scan results and diagnosed lumbar 

radiculopathy, lumbar intervertebral disc displacement, lumbar spondylolisthesis without 

myelopathy, lumbar spinal stenosis, and low back pain. Dr. Gahn recommended an interlaminar 

lumbar epidural steroid injections targeted at the L4-5 level. 

Dr. Gahn administered a lumbar epidural steroid injection on June 19, 2021 and noted 

postoperative diagnoses of lumbar radiculopathy and lumbar disc displacement. 

In a July 9, 2021 compensation claim development letter, OWCP informed appellant that 

the evidence submitted was insufficient to establish disability from work during the claimed 

period. It advised her of the type of additional evidence needed and afforded her 30 days to provide 

the necessary evidence. 

OWCP thereafter received a November 30, 2020 medical report by Tracy Reese, a nurse 

practitioner, who diagnosed muscle spasm, low back pain, and lumbar spondylolisthesis. 

Ms. Reese released appellant to return to work with restrictions including no kneeling, bending 
4

over, twisting, jumping, running, climbing ladders, and prolonged sitting and no lifting over 5 

pounds at or below shoulder height and no lifting below the waist greater than 10 pounds. 

In a report dated December 24, 2020, Maggie Lewis, a nurse practitioner, maintained the 

same restrictions. 

In letters dated January 25 and February 17, 2021, Dr. Chad J. Smith, a Board-certified 

family medicine specialist, noted that appellant had been attending physical therapy twice per 

week and was struggling to complete a workday on Wednesdays. He recommended that she be 

excused from work on Wednesdays for one month in order to continue her rehabilitation process. 

Dr. Smith also noted that appellant should not use muscle relaxant medication during the workday

due to sedation. 

In an after-visit summary dated April 20, 2021, Dr. Smith diagnosed chest pain, acute 

lumbar radiculopathy, hypertension, and left toe pain. In a Form CA-17 of even date, he diagnosed 

acute lumbar radiculopathy and released appellant to return to work four hours per day. 

In Forms CA-17 dated May 18 and June 15, 2021, Dr. Smith diagnosed acute lumbar 

radiculopathy and released appellant to return to work on Mondays, Tuesdays, and Thursdays with 

the same restrictions. He noted that she should be permitted to stand up and/or leave work if 

necessary due to pain. 

An after-visit summary dated June 17, 2021, indicated that appellant was seen for 

complaints of leg pain and noted a diagnosis of chronic lumbar radiculopathy. 

In a letter dated June 28, 2021, appellant resigned from her federal employment, effective 

July 11, 2021. She noted that she had been injured on the job and could not continue to work due 

to pain that was so severe that she could not drive, stand for long periods, or bend . 

Dr. Gahn administered a second lumbar epidural steroid injection on July 29, 2021 and

noted postoperative diagnoses of lumbar radiculopathy and lumbar disc displacement. 

By decision dated September 1, 2021, OWCP denied appellant’s claim for compensation, 

finding that she had not submitted sufficient medical evidence to establish disability from work 

during the claimed period due to the accepted conditions. It further noted that the evidence of 

record reflected diagnoses of lumbar radiculopathy, spinal stenosis, disc displacements, and

spondylolisthesis, which were not accepted conditions. OWCP requested that appellant provide 

additional medical evidence to support that those additional conditionswere causally related to the 

accepted October 18, 2020 employment injury. 

OWCP continued to receive medical evidence, including a June 17, 2021 emergency 

department report by Jessica Nichole Stricklin, a physician assistant, who noted that appellant 

related left lower extremity pain, which she attributed to an October 18, 2020 work injury.

Ms. Stricklin performed a physical examination, diagnosed lumbar radiculopathy, and 

recommended x-rays of the sacrum and coccyx, which revealed anterolisthesis of L4 with respect 

to L5. 

OWCP also received a September 15, 2021 letter by Dr. Mirkin, and duplicate copies of 

medical evidence previously of record. 
5

On September 6, 2022 appellant, through counsel, requested reconsideration of OWCP’s 

September 1, 2021 decision. In support of the request, counsel submitted a May 3, 2022 narrative 

report by Dr. Mirkin, who outlined the history of the October 18, 2020 work injury and his 

examination findings, including positive straight leg raise and weakness in the left foot dorsiflexor. 

Dr. Mirkin noted that diagnostic testing revealed spondylolisthesis at L4-5 with foraminal 

narrowing and a left lateral disc protrusion at L5-S1. He opined that appellant’s symptomatology 

was caused by the work injury and that she was capable of working light duty for four hours per 

day. Dr. Mirkin further opined that the spondylolisthesis was partially preexisting, but that the 

herniated disc was a new injury. 

By decision dated September 21, 2022, 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.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 

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 

4

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February7, 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); LeonD. 

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

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 6 at Chapter 2.1602.5 (February 2016).

10 J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

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

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 September 6, 2022

reconsideration was request was untimely filed.

OWCP’s regulations15 and procedures16 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. 17 

The most recent merit decision was OWCP’s September 1, 2021 decision. As appellant’s request 

for reconsideration was received by OWCP on September 6, 2022 more than one year after the 

September 1, 2021 OWCP decision, the Board finds that it was untimely filed. Consequently, she

must demonstrate clear evidence of error by OWCP in denying her claim for compensation.

18

The Board further finds, however, that this case is not in posture for decision as to whether 

appellant’s September 6, 2022 reconsideration request demonstrated clear evidence of error.

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

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

14 D.S., Docket No. 17-0407 (issued May 24, 2017).

15 20 C.F.R. § 10.607(a); see S.M., Docket No, 19-1961 (issued January 28, 2021); J.W., Docket No. 18-0703 

(issued November 14, 2018); Alberta Dukes, 56 ECAB 247 (2005).

16 S.M., id.; Veletta C. Coleman, 48 ECAB 367, 370 (1997).

17 20 C.F.R. § 10.607(b); see A.M., Docket No. 20-0143 (issued October 28, 2020); Debra McDavid, 57 ECAB 

149 (2005).

18 Id. at § 10.607(b); see S.M., supranote 15; M.W., Docket No. 17-0892 (issued May 21, 2018); see S.M., Docket 

No. 16-0270 (issued April 26, 2016).
7

OWCP summarily denied appellant’s request for reconsideration without complying with 

the review requirements of FECA and its implementing regulations. 19 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.20 Its regulations at 20 C.F.R. § 10.126 provide that the decision of the 

decision of the Director of OWCP shall contain findings of fact and a statement of reasons.21 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.22

In denying appellant’s September 6, 2022 reconsideration request, OWCP failed to analyze 

the evidence as to whether it was sufficient to demonstrate clear evidence of error. 23 The 

September 21, 2022 decision simply noted: “You did not present clear evidence of error.” 

However, OWCP provided no discussion relative to the new medical evidence submitted by 

appellant.24 The Board will therefore set aside OWCP’s September 21, 2022 decision and remand 

the case for an appropriate decision on her untimely reconsideration request, which describes the 

evidence submitted on reconsideration and provides detailed reasons for accepting or rejecting the 

reconsideration request.25

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 she has demonstrated 

clear evidence of error.

19 J.A., Docket No. 20-1483 (issued December 19, 2022); V.R., Docket No. 19-0536 (issued February 22, 2021); 

T.P., Docket No. 19-1533 (issued April 30, 2020).

20 5 U.S.C. § 8124(a).

21 20 C.F.R. § 10.126.

22 Supra note 6 at Chapter 2.1400.5 (February 2013).

23 See V.R., supra note 19; J.A., supra note 19; Order Remanding Case, J.K., Docket No. 20-0556 (issued 

August 13, 2020).

24 See V.R., id.; J.A., id.; Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); R.C., Docket 

No. 16-0563 (issued May 4, 2016).

25 See V.R., id.; J.A., id.; Order Remanding Case, C.D., Docket No. 20-0450 (issued August 13, 2020).
8

ORDER

IT IS HEREBY ORDERED THAT the September 21, 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: May 26, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board