United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.B., Appellant

and

U.S. POSTAL SERVICE, WEXFORD POST 

OFFICE, Wexford, PA, Employer

__________________________________________

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Docket No. 21-0800

Issued: January 11, 2024

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 29, 2021 appellant, through counsel, filed a timely appeal from an April 21, 2021 

nonmerit decision of the Office of Workers’ Compensation Programs. As more than 180 days has 

elapsed from the last merit decision dated September 27, 2019 to the filing of this appeal, pursuant 

to the Federal Employees’ Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board lacks jurisdiction over the merits of the case.

ISSUE

The issue is whether OWCP properly denied appellant’s January 22, 2021 request for 

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

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

FACTUAL HISTORY

On April 9, 2019 appellant, then a 52-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that he sustained a left knee injury on July 24, 2019when delivering a parcel 

to a resident’s front porch while in the performance of duty. He provided that precise address on 

his route. On the reverse side of the claim form his supervisor, S.K., indicated by checking a box 

marked “Yes” that he was injured in the performance of duty. Appellant stopped work on July 24, 

2019 and returned to modified duty on August 5, 2019. OWCP assigned File No. xxxxxx638.2

In a letter dated July 25, 2019, L.S., an operations director for Concentra Medical Centers, 

indicated that appellant had inquired about a work-related injury. She noted that she advised him 

that he needed to contact workers’ compensation.

In a statement dated July 26, 2019, appellant indicated that on July 24, 2019 he injured his 

left knee while taking a package to a resident’s porch area. He explained that he felt a piercing 

twinge and pop in his left knee, which worsened as he completed his route. Appellant noted that 

he reported the incident to the supervisor that was on shift.

In a letter also dated July 26, 2019, S.K. controverted the claim, alleging that appellant’s 

claim was untimely, that he did not describe a specific event, and that he was not sure whether he 

sustained a new injury or a reoccurrence of a previous injury. In a separate accident report of even 

date, Postmaster J.K. indicated that appellant reported that on July 24, 2019 he felt a sharp twinge 

of pain while delivering a parcel to the porch of a residence. 

In a medical report dated July 26, 2019, Dr. John Stuart, an occupational medicine 

specialist, noted that appellant presented for complaints of left knee pain which appellant attributed 

to an incident on July 24, 2019 when he was taking packages to a house and stepped awkwardly 

on gravel and felt a twinge and pop in his left anterior medial knee. He detailed a prior history of 

a work-related left knee strain on May 17, 2018 and related treatment, including a magnetic 

resonance imaging (MRI) scan on June 23, 2018 that showed chondromalacia in all compartments 

with effusion. On physical examination, Dr. Stuart documented joint pain, limping, and tenderness 

to palpation of the left knee. He diagnosed left knee strain and an exacerbation of a preexisting 

condition. Dr. Stuart released appellant to return to work with restrictions of sitting 80 percent of 

the workday with no squatting, kneeling, or climbing stairs. 

In a medical report dated July 29, 2019, Dr. Darrin Paulovich, an occupational medicine 

specialist, related a history of appellant injuring his left knee due to walking awkwardly on gravel 

while delivering a parcel on July 24, 2019. He performed a physical examination, which revealed

tenderness to palpation over the medial joint line, but was otherwise normal. Dr. Paulovich 

diagnosed a left knee strain and released appellant to return to work sitting 90 percent of the 

workday with no squatting, kneeling, or climbing stairs. 

2 OWCP previously accepted a January 5, 2015 traumatic injury claim for a left knee and lower leg contusion, left 

knee and leg sprain, and left wrist sprain under OWCP File No. xxxxxx473 and accepted a May17, 2018 traumatic 

injury claim for a left knee strain under OWCP File No. xxxxxx327. OWCP has administratively combined OWCP 

File Nos. xxxxxx473, xxxxxx327, and xxxxxx638, with OWCP File No. xxxxxx473 serving as the master file.
3

Physical therapy records dated between July 29 and August 5, 2019 signed by Eric 

Lehman, a physical therapist, included a diagnosis of unspecified strain of the left lower extremity 

and noted that appellant showed some improvement in range of motion, strength, and function, but

continued to experience pain and a sensation of locking and giving-way in the left knee.

In a follow-up note dated August 5, 2019, Dr. Paulovich reiterated the history and 

mechanism of injury of the July 24, 2019 incident and diagnosed a left knee strain. He opined that 

appellant could return to work sitting 75 percent of the workday with no squatting, kneeling, or 

climbing stairs. 

In a report dated August 9, 2019, Dr. Stuart noted that appellant reported left knee soreness, 

which was improving. He performed a physical examination and diagnosed a left knee strain. 

Dr. Stuart opined that appellant may require MRI scan studies of the left knee if appellant’s

symptoms did not improve by his next visit. He released appellant to return to work with 

restrictions of sitting 60 percent of the time with no squatting, kneeling, or climbing stairs.

Additional physical therapy notes dated August 7 through 15, 2019 continued to document 

appellant’s ongoing complaints of pain and instability.

In an August 22, 2019 development letter, OWCP informed appellant that, when his claim 

was first received, it appeared to be a minor injury that resulted in minimal or no lost time for work 

and it had now reopened his claim for consideration of the merits. It advised him of the type of 

factual and medical evidence necessary to establish his claim and provided a questionnaire for his 

completion to provide further details regarding the circumstances of his claimed injury. OWCP 

afforded appellant 30 days to respond.

OWCP continued to receive evidence. In an August 19, 2019 medical report, Dr. Stuart 

noted that appellant related complaints of ongoingleft anterior/medial knee pain, which was worse 

with stair climbing, and a popping sensation which he attributed to the claimed July 24, 2019 

incident. He diagnosed a strain of the left knee and recommended an MRI scan. Dr. Stuart 

maintained appellant’s restrictions of sitting 60 percent of the workday, with no squatting, 

kneeling, or climbing stairs.

Appellant submitted additional physical therapy reports dated August 14 through 

September 6, 2019. A note dated September 6, 2019 indicated that he had fallen on his lower back 

recently, but was not having any new left knee symptoms. 

By decision dated September 27, 2019, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that the incident occurred as alleged. Therefore, it 

concluded that the requirements had not been met to establish an injury as defined by FECA.

OWCP continued to receive evidence, including a September 27, 2019 medical note by

Dr. Stuart, who noted that appellant complained of left knee soreness which he attributed to the 

July 24, 2019 employment incident, and that the left knee MRI scan had not been approved. 

Dr. Stuart continued to diagnose a left knee strain and recommended an MRI scan. He released 

appellant to return to work restrictions of sitting 50 percent of the workday with no squatting, 

kneeling, or climbing stairs.
4

On January 22, 2021 appellant, through counsel, requested reconsideration of OWCP’s 

September 27, 2019 decision and resubmitted Dr. Paulovich’s August 5, 2019 report.

By decision dated April 21, 2021, 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.3 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.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 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.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 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 

3

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).

4

20 C.F.R. § 10.607(a).

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

6 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).

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 (1990).

8 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 5 at Chapter 2.1602.5 (February 2016).

9

J.M., Docket No. 19-1842 (issued April 23, 2020); 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) (February 2016).
5

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. 11

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

clear evidence of error on the part of OWCP.13

ANALYSIS

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

reconsideration was untimely filed. The last merit decision of record was OWCP’s September 27, 

2019 decision. As appellant’s request for reconsideration was received by OWCP on January 22, 

2021, more than one year after the September 27, 2019 merit decision, it was untimely filed. 

Consequently, he must demonstrate clear evidence of error by OWCP in denying his claim.14

The Board further finds that the evidence submitted in support of appellant’s untimely 

request for reconsideration raises a substantial question as to the correctness of OWCP’s 

September 27, 2019 merit decision and is sufficient to demonstrate clear evidence of error.

15

In its September 27, 2019 decision, OWCP found that the factual evidence was insufficient 

to establish that the July 24, 2019 employment incident occurred as alleged, noting that the record 

was unclear as to how appellant’s injury actually occurred. On reconsideration, appellant argued 

that the evidence of fact of injury was ignored at the time of the denial. The Board finds, the 

incident was clearly described on his Form CA-1, to his medical providers, and in his July 26, 

2019 statement. He explained that he was taking packages to a house and felt a twinge and pop in 

his left anterior medial knee. Further appellant resubmitted an August 5, 2019 note from

Dr. Paulovich previously of record, which documented this history. Appellant, therefore, 

submitted evidence which demonstrates that OWCP erred in its September 27, 2019 merit 

decision.

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

12 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 5 at Chapter 2.1602.5a (September 2020).

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

14 Supra note 5; see also B.P., Docket No. 20-0179 (issued August23, 2021); F.L., Docket No. 21-0304 (issued 

July 13, 2021).

15 See S.M., Docket No. 18-1499 (issued February 5, 2020) (OWCP will reopen a claimant’s case for merit review, 

notwithstanding the one-year filing limitation, if the claimant’s request for reconsideration shows clear evidence of 

error on the part of OWCP).
6

As such, OWCP abused its discretion in failing to reopen his claim for further merit 

review.16 The Board will reverse OWCP’s September 27, 2019 decision and remand the case for 

an appropriate decision on the merits of appellant’s claim.

CONCLUSION

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

September 27, 2019 merit decision and, thus, OWCP improperly denied his request for 

reconsideration of the merits of his claim.

ORDER

IT IS HEREBY ORDERED THAT the April 21, 2021 decision of the Office of Workers’

Compensation Programs is reversed and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: January 11, 2024

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

16 See, e.g., A.B., Docket No. 10-1070 (issued March 8, 2011).