United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.J., Appellant

and

U.S. POSTAL SERVICE, LOGISTICS &

DISTRIBUTION CENTER, Tampa, FL, 

Employer

__________________________________________

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Docket No. 23-0744

Issued: October 31, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

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 April 22, 2023 appellant filed a timely appeal from a December 8, 2022 nonmerit

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days

has elapsed from OWCP’s last merit decision, dated March 2, 2021, 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.

3

1 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of his oral argumentrequest, appellant asserted that oral argumentshould be granted because it would help to 

clarify the facts of the case. The Board, in exercising its discretion, denies appellant’s request for oral argument

because the Board does not have jurisdiction over the merits of this case and, thus, the arguments on appeal can be 

adequately addressed in a decision based on a review of the case record. Oral argumentin this appeal would not serve 

a useful purpose. Therefore, the oral argument request is denied, and this decision is based on the case record as 

submitted to the Board.

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the December 8, 2022 decision, OWCP received additional evidence. 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 request for reconsideration, 

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

FACTUAL HISTORY

On September 15, 2011 appellant, then a 40-year-old building equipment mechanic, filed 

a traumatic injury claim (Form CA-1) alleging that on that date he injured his right shoulder when 

his drill became caught in a dock wall while in the performance of duty. OWCP accepted the 

claim for right shoulder sprain and complete rotator cuff rupture (distal supraspinatus tendon full 

thickness tear at the origin). On November 16, 2011 appellant underwent OWCP-authorized 

surgery by Dr. Adam Morse, an orthopedic surgeon, including diagnostic and surgical arthroscopy 

of the right shoulder with arthroscopic rotator cuff repair, subacromial decompression, and clavicle 

excision. He stopped work on November 16, 2011, and returned to full-time, modified-duty work 

effective February 14, 2012.

In a medical report dated January 24, 2013, Dr. Morse noted that appellant had permanent 

work restrictions, including no over shoulder reaching and no pushing or pulling greater than 35 

pounds for eight hours per day. He indicated that appellant should also avoid vibratory tools. 

Dr. Morse explained that appellant had persistent hyperesthesia in the ulnar nerve distribution with 

overhead activity, which was exacerbated by vibratory tools.

On April 4, 2013 Dr. Morse recommended a magnetic resonance imaging (MRI) scan of 

the cervical spine to evaluate the persistent hyperesthesia in the right ulnar nerve distribution. 

An MRI scan of the cervical spine dated May 6, 2013 revealed osseous degeneration and 

disc bulges and/or protrusions from C2-3 through C6-7 resulting in various degrees of canal 

stenosis without definite spinal cord impingement. 

In follow-up reports dated May 21 and August 6, 2013, Dr. Morse diagnosed degenerative 

disc disease in the cervical spine and recommended anti-inflammatory medication and a referral 

to a spine specialist. 

In a report dated July 8, 2014, Dr. Morse noted appellant’s complaints of persistent 

numbness and tingling into the right hand and sharp stabbing pain in the anterior aspect of the 

superior edge of the right shoulder. He recommended an updated right shoulder MRI scan. 

A July 14, 2014 report of MRI scan of the right shoulder revealed postoperative changes 

associated with the distal supraspinatus tendon repair and no evidence of recurrent or retracted 

full-thickness rotator cuff tear. The infraspinatus, subscapularis, and teres minor muscles and 

tendons were normal, and there was no muscle atrophy. 

Dr. Morse, in a July 17, 2014 report, reviewed appellant’s recent MRI scan and opined that 

his symptoms were originated in the cervical spine and that the rotator cuff was intact. He 

indicated that appellant had achieved maximum medical improvement and had permanent 

restrictions. 

In a work capacity evaluation for musculoskeletal conditions (Form OWCP-5c) dated 

July 17, 2020, Dr. Morse noted that appellant was able to work eight hours per day, with no 

repetitive overhead shoulder movement and no pushing or pulling greater than 20 pounds. In a 
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referral order of even date, he diagnosed calcific tendinitis of the right shoulder and recommended 

physical therapy. 

In a Form OWCP-5c dated August 13, 2020, Dr. Morse released appellant to return to work 

with no overhead activities, no lifting greater than 10 pounds, and no pushing or pulling greater 

than 40 pounds. 

On August 19, 2020 appellant accepted a modified building equipment mechanic position 

with no reaching above shoulder height, no repetitive movement of the shoulders, and no pushing 

or pulling greater than 20 pounds. 

On November 20, 2020 appellant filed a notice of recurrence (Form CA-2a) alleging a 

recurrence commencing August 7, 2020 and the need for medical treatment commencing 

August 13, 2020, causally related to the accepted September 15, 2011 employment injury. He 

noted that he had been working modified duty with no overhead work and no pushing or pulling 

greater than 35 pounds, and that he began to experience stiffness and radiating pain in the right 

shoulder in the same location as the original injury.

In a November 27, 2020 development letter, OWCP informed appellant of the deficiencies 

in his claim. It advised him of the type of additional factual and medical evidence needed and 

provided a questionnaire for his completion. OWCP afforded appellant 30 days to respond. No 

response was received.

By decision dated March 2, 2021, OWCP denied appellant’s recurrence claim, finding that 

the evidence of record was insufficient to establish a worsening of the accepted work -related 

conditions requiring further medical treatment.

On March 16, 2022 OWCP received a summary of visits on July 16, 2020 through 

March 10, 2022, wherein Dr. Morse diagnosed calcific tendinitis of the right shoulder, full 

thickness tear of the rotator cuff, and enteropathic arthritis. On November 18, 2021 Dr. Morse 

recommended an updated MRI scan and on December 23, 2021 he administered a repeat 

subacromial steroid injection. On March 10, 2022 he indicated that appellant’s updated MRI scan 

revealed a questionable five-millimeter full-thickness rotator cuff tear, and that he would seek 

approval through workers’ compensation for additional surgery. 

On June 29, 2022 appellant requested reconsideration of OWCP’s March 2, 2021 decision. 

By decision dated December 8, 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.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 of 

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

4

5 U.S.C. § 8128(a); see also A.B., Docket No. 19-1539 (issued January 27, 2020); W.C., 59 ECAB 372 (2008).

5

20 C.F.R. § 10.607(a).
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Employees’ Compensation System (iFECS).6 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.7

OWCP may not deny a request for reconsideration 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. 8 If a request for 

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

review.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.11 Evidence that does not raise a 

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

clear evidence of error.12 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 request for reconsideration bears on the evidence previously of record and 

whether the new evidence demonstrates clear error on the part of OWCP. 13 

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

difficult standard.14 The claimant must present evidence which on its face shows that OWCP made 

an error.15 The Board makes an independent determination of 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. 

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

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 id. at § 10.607(b).

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

11 J.D., Docket No. 19-1836 (issued April 6, 2020); Leone N. Travis, 43 ECAB 227 (1999).

12 S.W., Docket No. 18-0126 (issued May 14, 2019); Robert G. Burns, 57 ECAB 657 (2006).

13 T.N., Docket No. 18-1613 (issued April 29, 2020).

14 See supra note 6 at Chapter 2.1602.5a (September 2020); see also J.S., Docket No. 16-1240 (issued 

December 1, 2016).

15 K.W., Docket No. 19-1808 (issued April 2, 2020).

16 D.S., Docket No. 17-0407 (issued May 24, 2017).
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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 issue(s). 19 

The most recent merit decision addressing appellant’s recurrence claim was OWCP’s March 2, 

2021 decision. As his request for reconsideration was not received by OWCP until June 29, 2022, 

more than one year after the March 2, 2021 decision, the Board finds that it was untimely filed. 

Consequently, appellant must demonstrate clear evidence of error.

In support of his untimely request for reconsideration, OWCP received a summary of visits 

with Dr. Morse dated July 16, 2020 through March 10, 2022. However, even a detailed, wellrationalized medical report which, if submitted before the denial was issued, would have created 

a conflict in medical evidence requiring further development is insufficient to demonstrate clear 

evidence of error. The Board has held that it is not enough to show that evidence could be 

construed so as to produce a contrary conclusion.

20

 Thus, this evidence is insufficient to 

demonstrate clear evidence of error.

Accordingly, 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.

CONCLUSION

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

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

17 20 C.F.R. § 10.607(a); see J.W., Docket No. 18-0703 (issued November 14, 2018); Alberta Dukes, 56 ECAB 

247 (2005).

18 See supra note 6 at Chapter 2.1602.4 (September 2020).

19 20 C.F.R. § 10.607(b).

20 J.M., Docket No. 23-0603 (issued September 27, 2023); J.C., Docket No. 20-1250 (issued May 24, 2021); W.D., 

Docket No. 19-0062 (issued April 15, 2019).
6

ORDER

IT IS HEREBY ORDERED THAT the December 8, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 31, 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