United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

SOCIAL SECURITY ADMINISTRATION, 

Baltimore, MD, Employer

__________________________________________

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Docket No. 22-0630

Issued: February 10, 2023

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 1, 2022 appellant, through counsel, filed a timely appeal from a January 11, 

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 19, 2016, 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.

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.
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 January 19, 2000 appellant, then a 56-year-old supply technician, filed an occupational 

disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome due to 

factors of her federal employment. She noted that she first became aware of her condition and 

realized its relation to her federal employment on July 7, 1999. OWCP accepted appellant’s claim 

for bilateral carpal tunnel syndrome and authorized right and left carpal tunnel releases, which 

were performed in 2000 and 2004, respectively. It paid appellant wage-loss compensation on the 

supplemental rolls from April 21 through June 15, 2002 and on the periodic rolls from June 16, 

2002 through March 5, 2016. 

On October 13, 2015 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and a copy of the medical record, to Dr. Robert Smith, a Board-certified orthopedic 

surgeon, for a second opinion evaluation to determine if appellant had continuing residuals of her 

employment injury and if so, if she had work restrictions.

In a November 13, 2015 report, Dr. Smith discussed appellant’s factual and medical history 

and reported the findings of his physical examination. He diagnosed bilateral carpal tunnel 

syndrome causally related to appellant’s work activities. Dr. Smith noted that appellant had 

satisfactory surgical decompression procedures of the carpal tunnels in 2000 and 2004. He 

indicated that based on objective resolution of the bilateral carpal tunnel syndrome by surgical 

releases appellant could return to her previous job without restriction. Dr. Smith opined that 

appellant’s residual complaints were due to nonindustrial diabetic neuropathy and multiple other 

nonindustrial medical conditions that would prevent her from working. He advised that she did 

not have residuals of the accepted work injury of January 19, 2000 and did not require any 

additional medical treatment for the accepted bilateral carpal tunnel syndrome. In a work capacity 

evaluation (Form OWCP-5c) of even date, Dr. Smith noted that appellant reached maximum 

medical improvement (MMI) and could return to work in her usual job without restrictions related 

to her bilateral carpal tunnel syndrome. He noted that she was unemployable due to nonindustrial 

conditions including diabetic neuropathy, heart failure, and kidney disease.

In a notice dated January 20, 2016, OWCP advised appellant that it proposed to terminate 

her wage-loss compensation and medical benefits because she no longer had disability or residuals 

causally related to her accepted employment-related conditions. It found that the weight of the 

medical evidence rested with Dr. Smith, who found that she had no objective findings to support 

further ongoing disability or residuals caused by her employment-related conditions. OWCP 

afforded appellant 30 days to submit evidence challenging the proposed termination action. No 

response was received.

By decision dated February 23, 2016, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective March 6, 2016.
3

On June 21, 2016 appellant requested reconsideration and submitted additional evidence. 

An electromyogram (EMG) and nerve conduction velocity (NCV) study dated March 11, 2016 

revealed bilateral median neuropathies at the wrist.

By decision dated September 19, 2016, OWCP denied modification of the February 23,

2016 termination decision.

3

On October 11, 2016 OWCP received evidence that the September 19, 2016 decision was 

returned to OWCP as undeliverable as it misaddressed the envelope.

On October 25, 2017 appellant contacted OWCP to inquire of the status of her request for 

reconsideration. OWCP informed her that it was issued on September 19, 2016, but acknowledged 

that it had been returned as undeliverable on October 11, 2016. Appellant informed OWCP that 

she never received the decision. OWCP confirmed her address of record and resent the 

September 19, 2016 decision that day.

On November 20, 2017 appellant, through her then-counsel, requested reconsideration of 

the September 19, 2016 decision. Then-counsel4submitted a November 13, 2017 letter advising

that appellant had not received notification of the September 19, 2016 decision until appellant

contacted OWCP on October 25, 2017. As such, she was unable to file a timely request for 

reconsideration from the September 19, 2016 decision. Then-counsel requested that appellant be 

given one year from October 26, 2017 to file additional evidence in support of her reconsideration 

request.

By decision dated December 11, 2017, OWCP denied appellant’s request for 

reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a). 

On August 22, 2019 appellant, through her then-counsel,5requested reconsideration of 

OWCP’s September 19, 2016 decision.6 Counsel noted that the September 19, 2016 decision was 

mailed to appellant, but returned as undeliverable. She argued that while the decision was resent 

on or about October 25, 2017, it was not redated to allow appellant appropriate time to request 

reconsideration. Then-counsel requested that OWCP reissue and redate the September 19, 2016 

decision to allow appellant an opportunity to protect her appeal rights. 

3 The decision was also mailed to appellant’s then-counsel, Amy B. Leasure, Esq.

4 At that time, appellant’s then-counsel was Scott B. Baron, Esq. 

5 At that time, appellant’s then-counsel was Danielle M. Vida, Esq. 

6 The request for reconsideration was dated October 5, 2018, but received on August 22, 2019. 
4

By decision dated September 17, 2019, OWCP denied appellant’s August 22, 2019 request 

for reconsideration.7 

On June 30, 2021 appellant, through counsel, requested reconsideration of the 

September 19, 2016 and December 11, 2017 decisions, contending that OWCP failed to extend 

the time limit for appellant to request reconsideration due to their address error. He further noted 

that the report of the second opinion physician, Dr. Smith, was “weak” and not well rationalized

and there was a conflict of opinion between Dr. Smith and her treating physician.

By decision dated July 15, 2021, OWCP denied appellant’s June 30, 2021 reconsideration 

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

On October 14, 2021 appellant, through counsel, again requested reconsideration. Counsel

reiterated that appellant did not receive the September 19, 2016 decision and that OWCP failed to

extend the time for her to file an appeal. Counsel argued that Dr. Smith’s report was “silly” and

asserted that there was a conflict of medical opinion between Dr. Smith and appellant’s treating 

physician.

By decision dated January 11, 2022, OWCP denied appellant’s reconsideration request, 

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.8 This discretionary authority, however, is subject to certain restrictions. A request 

for reconsideration must be received within one year of the date of OWCP’s decision for which 

review is sought.9 Timeliness is determined by the document receipt date (i.e., the “received date”

in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).10 Imposition of this 

one-year filing limitation does not constitute an abuse of discretion.11

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 

7 On May 20, 2021 appellant, through counsel, appealed the December 11, 2017 decision to the Board. By order 

dated June 25, 2021, the Board dismissed appellant’s appeal, finding that it lacked jurisdiction to review the appeal as 

appellant did not file an appeal with the Board until May 20, 2021 more than 180 days after the December 11, 2017 

decision. Order Dismissing Appeal, Docket No. 21-0888 (issued June 25, 2021).

8 5 U.S.C. § 8128(a). See also L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 

(issued March 16, 2009).

9 20 C.F.R. § 10.607(a).

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4b (September 2020).

11 G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. 

Faidley, Jr., 41 ECAB 104 (1989).
5

decision was in error.12 Its 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.13 

In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears 

on the prior evidence of record.14

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

issue which was decided by OWCP.15 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 not only be of sufficient probative value to create a conflict 

in medical opinion or establish a clear procedural error, but 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. The Board makes an independent determination as to 

whether a claimant has demonstrated clear evidence of error on the part of OWCP.16

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration, 

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

OWCP’s regulations17 and procedures18 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.19 

The most recent merit decision was OWCP’s September 19, 2016 decision, which denied 

12 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).

13 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See 

also id. at § 10.607(b); supra note 10 at Chapter 2.1602.5 (September 2020).

14 J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);

Robert G. Burns, 57 ECAB 657 (2006).

15 S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 10 at Chapter 2.1602.5a (September 2020).

16 U.C., Docket No. 19-1753 (issued June 10, 2020).

17 20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); Alberta Dukes, 56 ECAB 

247 (2005).

18 Supra note 10 at Chapter 2.1602.4 (September 2020); see L.A., Docket No. 19-0471 (issued October 29, 2019);

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

19 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).
6

modification of the decision terminating her medical and wage-loss compensation. As that 

decision was returned as undeliverable, OWCP resent it on October 25, 2017. As OWCP received 

appellant’s request for reconsideration on October 14, 2021, more than one year after 

September 19, 2016, the date of the merit decision, and October 25, 2017, the date that OWCP 

resent it, the Board finds that her request for reconsideration was untimely filed. Consequently, 

she must demonstrate clear evidence of error on the part of OWCP.

In support of appellant’s request for reconsideration, counsel reiterated that appellant did 

not receive the September 19, 2016 decision and OWCP failed to extend the time for her to file an 

appeal. Counsel argued that the report of the second opinion, Dr. Smith, was “silly” and asserted 

that there was a conflict of medical opinion between Dr. Smith and appellant’s treating physician. 

However, OWCP corrected the mailing error with regard to the September 19, 2016 decision when 

it resent it on October 25, 2017 and treated appellant’s November 20, 2017 request for 

reconsideration as timely.20 Furthermore, these arguments do not show that OWCP’s termination 

of her wage-loss compensation and medical benefits was erroneous, nor do they raise a substantial 

question as to the correctness of OWCP’s determination that she no longer had residuals or 

disability causally related to her accepted employment-related conditions.

21

 The Board has held 

that the term clear evidence of error is intended to represent a difficult standard.22 As such, the 

Board finds that this evidence is insufficient to show clear evidence of error in OWCP’s 

September 19, 2016 decision.

Appellant has not raised an argument or submitted any evidence that manifests on its face 

that OWCP committed an error in terminating her wage-loss compensation and medical benefits 

because she no longer had disability or residuals causally related to her accepted employmentrelated conditions.

23

 Thus, the Board finds that her untimely request for reconsideration failed to 

demonstrate clear evidence of error.24

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration, 

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

20 See Lan Thi Do, 46 ECAB 366 (1994) (appellant’s opportunity for a hearing constituted a meaningful postdeprivation process whereby the government was able to address the procedural error after it occurred).

21 See P.O., Docket No. 13-0092 (issued April 4, 2013).

22 M.P., Docket No. 19-0200 (issued June 14, 2019).

23 S.C., Docket No. 19-1424 (issued September 15, 2020); U.C., supra note 16.

24 Id.
7

ORDER

IT IS HEREBY ORDERED THAT the January 11, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 10, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board