United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.B., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, Virginia Beach, VA,
Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 08-2090
Issued: April 16, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 22, 2008 appellant filed a timely appeal of a nonmerit decision of the Office of
Workers’ Compensation Programs dated July 7, 2008. Because more than one year has elapsed
between the most recent merit decision of the Office dated April 30, 2007 and the filing of this
appeal, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board lacks jurisdiction to review
the merits of appellant’s claim.
ISSUE
The issue is whether the Office properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review pursuant to 5 U.S.C. § 8128(a) and
20 C.F.R. § 10.606.
FACTUAL HISTORY
This is the fourth appeal in this case. The Board issued a decision on February 19, 2004
which reversed an August 22, 2003 Office decision on the grounds that the Office improperly

terminated appellant’s compensation effective August 20, 2003 because she neglected to work
after suitable work was offered to her.1 The Board noted that the evidence of record was unclear
as to whether the position was open and available to appellant. On September 22, 2005 the
Board reversed an April 5, 2005 Office decision which terminated appellant’s compensation
effective April 5, 2005.2 The Board found that the Office failed to develop the evidence
regarding whether suitable employment was available in appellant’s commuting area of Bowling
Green, NC. The Board issued a decision on June 2, 2008 affirming an Office hearing
representative’s April 30, 2007 decision which terminated appellant’s wage-loss compensation
on the grounds that she refused an offer of suitable work.3 The facts and the circumstances of
the case up to that point are set forth in the Board’s prior decision and are incorporated herein by
reference.
In a letter dated June 10, 2008, appellant requested reconsideration and submitted an
April 13, 2008 lumbar spine x-ray interpretation which noted degenerative changes at L4-5 and
L5-S1.
In a July 7, 2008 decision, the Office determined that appellant’s application for
reconsideration was insufficient to warrant further merit review of the claim
LEGAL PRECEDENT
The Federal Employees’ Compensation Act4 provides that the Office may review an
award for or against payment of compensation at any time on its own motion or upon
application.5 The employee shall exercise this right through a request to the district Office. The
request, along with the supporting statements and evidence, is called the application for
reconsideration.6
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
1

Docket No. 03-2143 (issued February 19, 2004). On May 23, 2001 appellant, then a 52-year-old cashier,
sustained shoulder, arm, back and neck injuries on May 20, 2001 while participating in a team exercise. The Office
accepted the claim for thoracic strain, scalp/head contusion and left shoulder/arm contusion. Subsequently, the
Office authorized left shoulder arthroscopy with subacromial decompression and bursectomy on May 14, 2002 and
left shoulder arthroscopic surgery on November 26, 2002. Appellant worked intermittently from the date of the
injury until June 26, 2001 and was subsequently placed on the automatic rolls for total disability.
2

Docket No. 05-1254 (issued September 22, 2005).

3

Docket No. 07-1742 (issued June 2, 2008).

4

5 U.S.C. § 8101 et seq.

5

Id. at § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006).

6

20 C.F.R. § 10.605.

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considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.7
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.8 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.9
ANALYSIS
In a June 2, 2008 decision, the Board affirmed the termination of appellant’s wage-loss
compensation on the grounds that she had refused an offer of suitable work. On June 10, 2008
appellant filed a request for reconsideration before the Office and submitted an April 13, 2008
lumbar x-ray. The underlying issue is whether appellant could perform the duties of the
modified sales checker position offered by the employing establishment.
The Board finds that the Office properly refused to reopen appellant’s case for further
merit review. Appellant has not alleged or shown that the Office erroneously applied or
interpreted a specific point of law, or advanced a relevant legal argument not previously
considered by the Office.
Appellant also failed to satisfy the third regulatory requirement under section 10.606(b).
She submitted an April 13, 2008 x-ray in support of her request. While the x-ray is new, it is not
relevant or pertinent medical evidence pertaining to appellant’s work capability. The underlying
issue is whether the modified sales checker position is suitable. The April 13, 2008 x-ray
interpretation provided no opinion as to appellant’s capacity for work or address her ability of
performing the position of modified sales checker. Evidence that does not address the particular
issue involved does not warrant reopening a case for merit review.10
The Board finds that appellant is not entitled to a review of the merits of her claim
pursuant to any of the three requirements under section 10.606(b)(2). The Office properly
denied her request for reconsideration.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
7

Id. at § 10.606. See Susan A. Filkins, 57 ECAB 630 (2006).

8

20 C.F.R. § 10.607(a). See Joseph R. Santos, 57 ECAB 554 (2006).

9

20 C.F.R. § 10.608(b). See Candace A. Karkoff, 56 ECAB 622 (2005)

10

D’Wayne Avila, 57 ECAB 642 (2006); Freddie Mosley, 54 ECAB 255 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 7, 2008 is affirmed.
Issued: April 16, 2009
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, MO, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 17-1412
Issued: November 20, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 13, 2017 appellant filed a timely application for review from a February 22,
2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because
more than 180 days elapsed from October 14, 2016, the date of the most recent merit decision, to
the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s
claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of the claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 13, 2015 appellant, then a 35-year-old building equipment mechanic, filed an
occupational disease claim (Form CA-2) alleging that he sustained major depressive disorder
with anxious distress as a result of harassment and intimidation in a hostile work environment.
The claim form did not indicate that he stopped work.
In a statement dated September 29, 2015, appellant alleged that he had been subjected to
retaliation for taking an absence from work due to a physical disability. He noted that he had a
service-connected disability and previously had been diagnosed with major depressive disorder
and anxious distress.
In progress notes dated August 17, 2015, Dr. Shreeja Kumar, a Board-certified
psychiatrist, diagnosed major depression recurrent with anxious distress. She recommended
medication and therapy. At the session, appellant reported to her that he had taken some leave
from work lately and that he was stressed in part due to work.
On October 15, 2015 the employing establishment controverted appellant’s claim. It
alleged that his claims of harassment were vague and unsubstantiated and that he had provided
no medical evidence demonstrating a connection between his diagnosed conditions and factors of
his federal employment.
By letter dated November 19, 2015, OWCP informed appellant of the evidence needed to
establish his claim and noted that he had not submitted sufficient factual or medical evidence. It
requested that he respond to a factual development questionnaire and afforded him 30 days to
submit additional evidence to the record. On the same date, OWCP sent another development
questionnaire to the employing establishment regarding the factual aspects of appellant’s claim.
Neither appellant nor the employing establishment submitted additional evidence or responded to
OWCP’s questionnaire.
By decision dated December 28, 2015, OWCP denied appellant’s claim. It found that he
had not submitted sufficient factual evidence to support that the claimed employment factors
occurred as alleged. Thus, “there is no factual basis for the claim.”
By letter dated June 6, 2016, a coworker verified that she had filed a grievance on behalf
of appellant for harassment by managers of the employing establishment.
In an attending physician’s report (Form CA-20) dated May 23, 2016, Dr. Kumar
diagnosed major depressive disorder. She checked a box marked “yes” indicating that she
believed that his condition was caused or aggravated by an employment activity, with no
elaboration. Dr. Kumar noted that appellant had continued symptoms, which were exacerbated
by stress, and that he had high anxiety when he “goes out.”
By an appeal request form received on June 15, 2016, appellant requested reconsideration
of OWCP’s December 28, 2015 decision. With his request, he included a narrative statement
dated October 10, 2015. Appellant alleged that someone had written a note on a route sheet
reading “Did you think I would come to work more than 3 days per week?” and that this

2

constituted harassment, intimidation, disparate treatment, discrimination, and a hostile work
environment.
Appellant also responded to OWCP’s development questionnaire by letter dated
June 8, 2016. He identified the specific supervisors alleged to have harassed him; detailed a
number of incidents alleged to have constituted harassment, intimidation, disparate treatment,
discrimination, and a hostile work environment; and noted that he had filed a grievance and a
complaint with the Equal Employment Opportunity Commission. The incidents appellant
alleged included being criticized for taking a late lunch break, being told not to wear a headset
radio when he did not even own one, and the written note on his route sheet mentioned above.
He alleged that his depression and anxiety was aggravated by his work environment.
On July 22, 2016 the employing establishment responded to appellant’s allegations. It
stated that he was individually informed of the policy regarding headset radios because he had
missed a general meeting on the topic. The employing establishment further stated that the note
on appellant’s route sheet had been written by another employee, who had been informed by a
supervisor that the comment was inappropriate and would not be tolerated.
In progress notes dated July 20, 2016, Dr. Kumar reviewed appellant’s diagnoses,
symptoms, and prescriptions. She then wrote, “It is my professional opinion that [appellant’s]
medical condition is exacerbated by stresses with his current employment.”
By decision dated October 14, 2016, OWCP reviewed the merits of appellant’s claim and
affirmed the December 28, 2015 decision as modified. It found that he had not established any
incidents or events that would afford coverage under FECA, because there were no covered
incidents that occurred in the performance of duty.2 OWCP found that appellant had also not
submitted sufficient medical evidence to support causal relationship.
By an appeal request form received January 20, 2017, appellant again requested
reconsideration. With his request, he included a short statement contending that he had
submitted sufficient medical evidence to establish his claim.
By decision dated February 22, 2017, OWCP denied appellant’s request for
reconsideration. It found that he had not submitted any relevant evidence or legal arguments not
previously considered in support of his request.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.3 Section 10.608(b) of OWCP’s regulations
2

Id.

3

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

3

provide that, when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.4
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of the claim pursuant to 5 U.S.C. § 8128(a).
With his request for reconsideration, received January 25, 2017, appellant submitted only
a short narrative statement contending that he had submitted sufficient medical evidence to
establish his claim.
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, or advance a new and relevant legal argument not previously considered. Thus, he is not
entitled to a review of the merits of his claim based on the first and second above-noted
requirements under section 10.606(b)(3).
The underlying issue is whether appellant has submitted sufficient evidence to establish
that the alleged incidents occurred in the performance of duty. A claimant may be entitled to a
merit review by submitting relevant and pertinent new evidence, but appellant did not submit any
such evidence in this claim. In his January 25, 2017 request for reconsideration, appellant
merely contended that he had submitted sufficient medical evidence to establish causal
relationship. However, OWCP denied his claim by an October 14, 2016 decision, because he
had not established any compensable employment factors within the performance of duty. As
such, appellant did not submit any evidence relevant to the underlying reason his claim was
denied on October 14, 2016.5 He therefore did not meet any of the requirements to warrant
reconsideration of his claim under 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

4

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

5

The Board has held that the submission of evidence or argument which does not address the particular issue
involved in the case does not constitute a basis for reopening a case. A.M., Docket No. 16-1875 (issued August 23,
2017); Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 22, 2017 is affirmed.
Issued: November 20, 2017
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL LAW ENFORCENT TRAINING
CENTER, Artesia, NM, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 21-0915
Issued: December 14, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 27, 2021 appellant filed a timely appeal from an April 26, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $25,926.56 for the period January 1, 2016 to August 15, 2020, for which he was without
fault, because he concurrently received FECA wage-loss compensation and Social Security
Administration (SSA) age-related retirement benefits without an appropriate offset; (2) whether
OWCP properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly

1

5 U.S.C. § 8101 et seq.

required recovery of the overpayment by deducting $144.14 every 28 days from appellant’s
continuing compensation payments.
FACTUAL HISTORY
On May 8, 2009 appellant, then a 59-year-old lead law enforcement specialist (driver
instructor), filed a traumatic injury claim (Form CA-1) alleging that on May 4, 2009 he sustained
lower body contusions and bruises and a possible broken or sprained right ankle as a result of a
motor vehicle accident while in the performance of duty. He stopped work on May 5, 2009.
OWCP accepted appellant’s claim for right knee contusion, right hip, thigh, and ankle sprains and
right edema. It paid him wage-loss compensation on the supplemental rolls for disability from
work commencing June 23, 2009 and on the periodic rolls commencing September 27, 2009.
By decision dated April 21, 2010, OWCP granted appellant a schedule award f or six
percent permanent impairment of the right leg. The period of the award ran for 17.28 weeks from
February 18 through June 18, 2010. On April 25, 2010 appellant returned to limited-duty work
eight hours per day.
In a September 3, 2010 decision, OWCP determined that the position of lead law
enforcement specialist (general training instructor), fairly and reasonably represented his wageearning capacity. It reduced appellant’s compensation, effective June 19, 2010, to reflect his loss
of wage-earning capacity.
In an April 23, 2020 letter, OWCP requested that appellant provide verification of full-time
student status or incapacity for self-support with respect to his sons, S.M. and D.M., and daughter,
K.M. It provided him with student dependency forms to complete and return with respect to fulltime student status.
In a May 3, 2020 student dependency form, appellant indicated that his son, D.M., born
July 12, 1996, had been married since October 25, 2019, only had two years of education beyond
high school, and was not attending school on a full-time basis. He noted that transcripts were
attached to his response. In a separate student dependency form of even date, appellant indicated
that his daughter, K.M., born July 12, 1996, was not married, had four years of education beyond
high school, and was not attending school on a full-time basis. He noted that she began school in
June 2015.
By letter dated May 8, 2020, OWCP informed appellant that no transcripts were attached
to his forms and requested that he submit a copy of a transcript, degree, or letter from the college
to verify student status.
OWCP received an additional student dependency form completed by appellant on
May 3, 2020. He indicated that his son, S.M., born July 12, 1996 was not married, had not
completed four years of education beyond high school, and was not attending school on a full-time
basis. In an accompanying undated statement, appellant noted that S.M. was disabled and unable
to work due to broken bones in his right foot and skin grafts to his big toe resulting from a
January 28, 2018 motorcycle accident. He submitted photographs and a diploma from Marine
Mechanics Institute which indicated that on July 3, 2019 S.M. successfully completed a marine

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technician specialist II program. Appellant also submitted college transcripts from Florida State
College at Jacksonville, Florida for D.M. Further, he submitted a diploma from University of
Central Florida which indicated that on August 4, 2018, K.M. received a Bachelor of Science
degree in nursing.
On July 17, 2020 SSA forwarded a completed Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form to OWCP. The form indicated that beginning in
January 2016 appellant’s SSA rate with FERS was $886.60 and without FERS was $433.60;
beginning in December 2016 his SSA rate with FERS was $889.20 and without FERS was
$434.90; beginning in December 2017 his SSA rate with FERS was $906.90 and without FERS
was $443.50; beginning in December 2018 his SSA rate with FERS was $932.20 and without
FERS was $455.90; and beginning in December 2019 his SSA rate with FERS was $949.10 and
without FERS was $463.10.
In a preliminary overpayment determination dated August 21, 2020, OWCP notified
appellant that he had received an overpayment of compensation in the amount of $25,926.56
because his wage-loss compensation benefits had not been reduced for the period January 1, 2016
through August 15, 2020 by the portion of his SSA benefits that were attributable to his federal
service. It calculated the overpayment amount by determining the difference between h is SSA
amount with and without FERS for the stated period and totaling this amount to find an
overpayment of $25,926.56. OWCP informed appellant that his compensation would be offset by
the portion of his SSA age-related retirement benefits attributable to his federal service, effective
August 16, 2020. It further advised him of its preliminary overpayment determination that he was
without fault in the creation of the overpayment and requested that he complete an overpayment
action request form and an overpayment recovery questionnaire (Form OWCP-20), and submit
supporting financial documentation. Additionally, OWCP notified appellant that he could request
a telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
It allotted 30 days for him to respond.
On September 11, 2020 appellant requested waiver of recovery of the $25,926.56
overpayment and a decision based on the written record. In an accompanying letter of even date,
he noted that after he returned to work at the employing establishment he stopped work again in
November 2010 due to his employment injury. Appellant asserted that he did not receive FERS
benefits and that he only received FECA compensation. He noted that when he became eligible
he was approved to receive SSA age-related retirement benefits. Appellant claimed that he would
suffer severe financial hardship to repay the overpayment as he was a single parent raising three
children, and that he was unable to work due to his age and condition.
Appellant completed a Form OWCP-20 on September 11, 2020. He reported monthly
income of $1,571.00, including SSA benefits of $571.00 and a private pension of $1,000.00.
Appellant listed his adult son, D.M., and 24-year-old son, S.M., as dependents. He reported
monthly expenses of $4,288.00. Appellant indicated that he had $50.00 cash on hand; $3,000.00
in a checking account; $117,000.00 in a savings account; and $40,000.00 in personal property,
totaling $160,050.00. He did not submit supporting financial documentation.
OWCP, by decision dated April 26, 2021, finalized the preliminary overpayment
determination that appellant had received an overpayment of compensation in the amount of

3

$25,926.56 for the period January 1, 2016 through August 15, 2020, because his FECA
compensation payments were not offset by the portion of his SSA age-related retirement benefits
attributable to his federal service. It found that he was without fault in the creation of the
overpayment, but denied waiver of recovery because the evidence of record did not establish that
recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience. OWCP noted that appellant repay the overpayment by deducting 25 percent of the net
amount of his 28-day continuing compensation payments, which resulted in a monthly repayment
amount of $144.14.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.2 However, section 8116 also limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.3 When an overpayment has been made
to an individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.4
Section 10.421(d) of OWCP’s implementing regulations requires that it reduce the amount
of compensation by the amount of any SSA benefits that are attributable to the federal service of
the employee.5 FECA Bulletin No. 97-09 states that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee
is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$25,926.56 for the period January 1, 2016 to August 15, 2020, for which he was without fault,
because he concurrently received FECA wage-loss compensation and SSA age-related retirement
benefits without an appropriate offset.
In its April 26, 2021 decision, OWCP found that an overpayment of compensation was
created for the period January 1, 2016 through August 15, 2020. The overpayment was based on
the evidence received from SSA with respect to retirement benefits paid to appellant. As noted, a
2

Id. at § 8102(a).

3

Id. at § 8116.

4

Id. at § 8129(a).

5

20 C.F.R. § 10.421(d); see R.R., Docket No. 19-0104 (issued March 9, 2020); T.B., Docket No. 18-1449 (issued
March 19, 2019); L.J., 59 ECAB 264 (2007).
6

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

4

claimant cannot receive both compensation for wage loss under FECA and SSA age -related
retirement benefits attributable to federal service for the same period. 7 The information provided
by SSA established that appellant received SSA age-related retirement benefits that were
attributable to federal service beginning January 1, 2016. OWCP, however, neglected to offset his
FECA benefits until August 15, 2020. Accordingly, the Board finds that it properly determined
that appellant received an overpayment of wage-loss compensation for the period January 1, 2016
through August 15, 2020.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. The SSA provided appellant’s SSA rates with FERS and without FERS for the
period January 1, 2016 through August 15, 2020. OWCP provided its calculations of the amount
that it should have offset during the relevant period based on the SSA worksheet.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period January 1, 2016 through August 15, 2020 and finds that an overpayment of compensation
in the amount of $25,926.56 was created.8
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 9
Section 10.436 of OWCP’s implementing regulations provides that recovery of an
overpayment would defeat the purpose of FECA if such recovery would cause hardship because
the beneficiary from whom OWCP seeks recovery needs substantially all of his or her current
income (including compensation benefits) to meet current ordinary and necessary living expenses
and, also, if the beneficiary’s assets do not exceed a specified amount as determined by OWCP.
An individual is deemed to need substantially all of his or her cu rrent income to meet current
ordinary and necessary living expenses if monthly income does not exceed monthly expenses by
more than $50.00. 10 Also, assets must not exceed a resource base of $6,200.00 for an individual
or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each additional
dependent.11 An individual’s liquid assets include, but are not limited to cash, the value of stocks,
7

Id.

8

See K.W., Docket No. 20-1169 (issued April 7, 2021); W.C., Docket No. 20-1241 (issued February 9, 2021); S.O.,
Docket 20-0753 (issued October 28, 2020).
9

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued
December 21, 2017).
10

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter
6.400.4a(2) (September 2020); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
11

Id. at Chapter 6.400.4.a(2) (September 2020).

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bonds, saving accounts, mutual funds, and certificate of deposits. 12 Nonliquid assets include, but
are not limited to, the fair market value of an owner’s equity in property such as a camper, boat,
second home, furnishings/supplies, vehicle(s) above the two allowed per immediate family,
retirement account balances (such as Thrift Savings Plan or 401(k)), jewelry, and artwork. 13
Section 10.437 of OWCP’s implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship attempting to repay the debt;
and when an individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 14 OWCP’s procedures
provide that, to establish that a valuable right has been relinquished, an individual must
demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and
that his or her action was based primarily or solely on reliance on the payment(s) or on the notice
of payment. 15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 16
The Board finds that as appellant reported $160,050.00 in total assets in a Form OWCP-20
on September 11, 2020 he has not met the standard for waiver of recovery of the overpayment
because his assets exceed the allowable resource base of $6,200.00 for an individual, such as
appellant.17 Although appellant listed his adult son, D.M. as a dependent, he failed to submit any
evidence to establish his son’s dependent status. Further, he also listed his son, S.M., as a
dependent because he is disabled and unable to work. A dependent includes an unmarried child
who, while living with the employee or receiving regular contributions from the employee toward
his or her support, is either under 18 years of age or over 18 years of age and incapable of selfsupport due to physical or mental disability. 18 Appellant submitted a diploma from Marine
Mechanics Institute which indicated that on July 3, 2019 S.M. successfully completed a marine
technician specialist II program. The Board finds that this evidence establishes that S.M. is not a
dependent as defined under FECA. Because appellant has not met the second prong of the two12

Id. at Chapter 6.400.4.b(3).

13

Id. at Chapter 6.400.4b(3)(a), (b).

14

20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

15

Supra note 10 at Chapter 6.400.4c(3) (September 2020).

16

20 C.F.R. § 10.436.

17

Supra note 11.

18

5 U.S.C. § 8110(a).

6

prong test of whether recovery of the overpayment would defeat the purpose of FECA, it is not
necessary for OWCP to consider the first prong of the test, i.e., whether he needs substantially all
of his current income to meet ordinary and necessary living expenses. 19 He has not established
that he was entitled to waiver on the basis of defeating the purpose of FECA. 20
Additionally, appellant has not established that recovery of the overpayment would be
against equity and good conscience because he has not shown, for the reasons noted above, that
he would experience severe financial hardship in attempting to repay the deb t or that he
relinquished a valuable right or changed his position for the worse in reliance on the payment
which created the overpayment. Therefore, OWCP properly found that recovery of the
overpayment would not defeat the purpose of FECA or be against equity and good conscience. 21
Because appellant has not established that, recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, the Board finds that OWCP properly
denied waiver of recovery of the $25,926.56 overpayment.22
LEGAL PRECEDENT -- ISSUE 3
Section 10.441(a) of OWCP’s regulations23 provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”24
Under OWCP’s procedures, the compromise of all or part of the overpayment and any
charges may be made depending upon the individual claimant’s financial circumstances in order
to set a repayment schedule. Such a determination is made at the time the repayment schedule is

19

F.K., Docket No. 20-1609 (issued June 24, 2021); S.W., Docket No. 20-0363 (issued November 23, 2020);
M.H., Docket No. 19-1497 (issued September 9, 2020).
20

F.K., id.; N.B., Docket No. 20-0727 (issued January 26, 2021); R.D., Docket No. 19-1598 (issued April 17, 2020);
R.C., Docket No. 19-0845 (issued February 3, 2020).
21

N.J., supra note 10; M.R., Docket No. 20-1622 (issued June 30, 2021); L.D., Docket No. 18-1317 (issued
April 17, 2019); William J. Murphy, 41 ECAB 569, 571-72 (1989).
22

F.K., supra note 19; D.M., Docket No. 17-0810 (issued October 2, 2017).

23

20 C.F.R. § 10.441(a).

24

Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

7

established. 25 Compromise is a matter which rests in the discretion of OWCP and is not subject
to review by the Board. 26
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$144.14 every 28 days from appellant’s continuing compensation payments.
OWCP gave due regard to the financial information submitted, as well as the factors set
forth in 20 C.F.R. § 10.441 and found that this method of recovery would minimize resulting
hardship. Therefore, it properly required recovery of the overpayment by deducting $144.14 every
28 days from appellant’s continuing compensation payments.27
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$25,926.56 for the period January 1, 2016 to August 15, 2020, for which he was without fault,
because he concurrently received FECA wage-loss compensation and SSA age-related retirement
benefits without an appropriate offset. The Board further finds that OWCP properly denied waiver
of recovery of the overpayment and properly required recovery of the overpayment by deducting
$144.14 every 28 days from his continuing compensation payments.

25

Supra note 10 at Chapter 6.500.6 (September 2020).

26

Id.; see M.S., Docket No. 20-0068 (issued May 14, 2021).

27

M.S., id.; M.B., Docket No. 20-1578 (issued March 25, 2021).

8

ORDER
IT IS HEREBY ORDERED THAT the April 26, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 14, 2021
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF THE AIR FORCE,
TRAVIS AIR FORCE BASE, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 11-1605
Issued: February 21, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 28, 2011 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) merit decision dated May 26, 2011. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a nine percent permanent impairment to his
right arm.
FACTUAL HISTORY
On March 3, 2009 appellant, then a 56-year-old hazardous cargo inspector/forklift
operator, slipped and fell on his right shoulder while adjusting restraints on an aircraft pallet. He
filed a claim for benefits on March 4, 2009, which OWCP accepted for contusion of right
1

5 U.S.C. § 8101 et seq.

shoulder and upper arm. The claim was subsequently expanded to include right rotator cuff tear
and biceps tear. On December 18, 2009 Dr. Douglas A. Dennis, Board-certified in orthopedic
surgery, performed arthroscopic surgery to ameliorate these conditions.
On March 23, 2011 appellant filed a Form CA-7, claim for a schedule award, based on a
partial loss of use of his right upper extremity.
In a March 27, 2011 report, Dr. Dennis stated that appellant was experiencing subjective
complaints of right shoulder pain and muscle cramps, with loss of range of motion and weakness
in the right upper extremity. Appellant had a residual loss of range of motion in his right
shoulder due to his work-related condition. Dr. Dennis listed the loss in range of motion for the
right shoulder as: limitation of extension, 30 to 45 degrees; limitation of abduction, 140 degrees;
limitation of adduction, 90 degrees and limitation of external rotation, 45 degrees.
In a report dated May 3, 2011, OWCP’s medical adviser found that appellant had a nine
percent right upper extremity impairment pursuant to the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th edition). He took the range of
motion findings and applied them to the shoulder range of motion grid at Table 15-34, page 475
of the A.M.A., Guides.2 Forty-five degrees of shoulder extension yielded a one percent upper
extremity impairment; 140 degrees of abduction yielded a three percent upper extremity
impairment; 90 degrees of shoulder adduction yielded a three percent upper extremity
impairment; and 45 degrees of external rotation yielded a two percent upper extremity or a total
of nine percent. The medical adviser found that appellant had reached maximum medical
improvement on March 27, 2011, the date that Dr. Dennis determined appellant’s condition was
permanent and stationary.
On May 26, 2011 OWCP granted appellant a schedule award for a nine percent
permanent impairment of the right arm for the period March 27 to October 9, 2011, a total of
28.08 weeks of compensation.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 The claimant has the burden of proving
2

A.M.A., Guides 475.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

5

Id.

2

that the condition for which a schedule award is sought is causally related to his or her
employment.6
ANALYSIS
OWCP accepted the conditions of right shoulder and upper arm contusions and right
rotator cuff and right biceps tears. Dr. Dennis performed surgery on December 18, 2009 to
repair these conditions. In a March 27, 2011 report, he examined appellant and found loss of
range of motion in his right shoulder.
As explained by the A.M.A., Guides at Table 15-5,7 if loss of motion is present, this
impairment may be assessed using range of motion impairment. A range of motion impairment
stands alone and is not combined with diagnosis-based impairment. OWCP’s medical adviser
applied the findings of Dr. Dennis to the shoulder range of motion grid at Table 15-34, page 475
of the A.M.A., Guides. He found that appellant had reached maximum medical improvement on
March 27, 2011. Appellant had a one percent upper extremity impairment for loss of extension,
a three percent impairment due to loss of abduction, a three percent impairment due to loss of
adduction and a two percent impairment due to loss of external rotation. The medical adviser
added these findings to total nine percent right upper extremity impairment under the A.M.A.,
Guides. There is no medical evidence of greater right upper extremity impairment. The medical
adviser relied on the applicable table of the sixth edition of the A.M.A., Guides in his impairment
rating.8 The Board finds that OWCP properly determined that appellant has a nine percent
permanent impairment to his right upper extremity.
Appellant may request an increased schedule award based on evidence of a new exposure
or medical evidence showing the progression of his employment-related condition resulting in
increased impairment.
CONCLUSION
The Board finds that appellant has nine percent permanent impairment to his right arm.

6

Veronica Williams, 56 ECAB 367, 370 (2005).

7

A.M.A., Guides 405.

8

The Board notes that a description of appellant’s impairment must be obtained from his physician, which must
be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly visualize the
impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580, 585 (2005).

3

ORDER
IT IS HEREBY ORDERED THAT the May 26, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 21, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Madison, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0302
Issued: June 26, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 28, 2016 appellant, through counsel, filed a timely appeal from a
November 1, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). The most recent merit decision was an October 9, 2015 decision of the Board, which
became final after 30 days of issuance.2 OWCP has not issued a merit decision since the Board’s
October 9, 2015 merit decision. As the November 1, 2016 decision is the only decision issued
within 180 days of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim.
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

20 C.F.R. § 501.6(d); see R.M., Docket No. 14-1213 (issued October 15, 2014).

3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as 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 of the case as presented in the
Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On August 25, 2014 appellant, then a 52-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on July 25, 2014 she sustained an injury to her right knee when
she was walking and her knee gave out, causing her to fall on her right knee. She stopped work
on August 8, 2014 and returned on August 12, 2014.5
Dr. Timothy P. Vanderbilt, a Board-certified orthopedic surgeon, treated appellant. In an
April 8, 2013 progress report, he related appellant’s complaints of persistent left knee and right
knee pain. Dr. Vanderbilt explained that appellant felt she was putting more stress on her right
knee in order to protect her left knee when she began to work 12-hour days. Upon examination
of the bilateral lower extremities, he observed no joint swelling and full range of motion.
Dr. Vanderbilt also noted tenderness to palpation at the right knee lateral joint and left knee
medial joint. He indicated that appellant had “early arthritic changes, with overuse secondary to
her job as a mail carrier, being on her feet for 12 hours a day, 6 days a week.”
In an April 8, 2013 x-ray of the right knee, Dr. Jason W. Stephenson, a Board-certified
diagnostic radiologist, reported no acute fracture or subluxation. He opined that appellant had
mild patellofemoral joint and medial compartment osteophyte formation without joint space
narrowing.
On August 11, 2014 Mary Evenson, a physician assistant, noted that appellant was unable
to work from August 9 through 10, 2014.
By letter dated August 25, 2014, OWCP advised appellant that the evidence submitted
was insufficient to establish her traumatic injury claim. It requested additional factual evidence
to substantiate the factual elements of her claim and medical evidence to demonstrate that she
sustained a diagnosed condition causally related to the July 25, 2014 employment incident. No
additional evidence was received.
OWCP denied appellant’s claim in a decision dated September 29, 2014 finding that
appellant failed to establish fact of injury. It determined that the evidence of record was

4

Docket No. 15-1438 (issued October 9, 2015).

5

The record reveals that appellant had a previously accepted claim under OWCP File No. xxxxxx501 for an
August 21, 2009 employment injury to her left knee. Her claim was accepted for aggravation of osteoarthritis of the
left knee. OWCP reviewed the medical evidence from OWCP File No. xxxxxx501 and copied pertinent medical
evidence into this present claim.

2

insufficient to substantiate that the July 25, 2014 incident occurred as alleged or that she had
sustained a medical condition causally related to the alleged work incident.
Dr. Geoffrey S. Baer, a Board-certified orthopedic surgeon, began to treat appellant. In
reports dated November 10, 2014 to February 2, 2015, he related appellant’s complaints of
continued pain localized to the lateral and medical aspects of her right knee. Dr. Baer noted that
appellant currently worked with restrictions as a letter carrier for the employing establishment.
Upon examination of appellant’s right lower extremity, he observed tenderness over the medial
joint line and medial and lateral patellar facets. Sensation was normal to light and patellar
apprehension and firm endpoint were negative. Dr. Baer reviewed an October 27, 2014
magnetic resonance imaging (MRI) scan report of appellant’s right knee, which revealed a
posterior root tear of the medial meniscus with multifocal cartilage loss along the central and
posterior weight bearing surfaces of the medial and lateral patellofemoral articular surfaces. He
opined that appellant had an “aggravation of right tricompartmental degenerative knee joint
disease (DJD) with underlying medial meniscus tear.” In a February 2, 2015 work restriction
note, Dr. Baer indicated that appellant should remain off work beginning January 31, 2015 due to
worsening knee pain.
On February 17, 2015 OWCP received appellant’s request for reconsideration. She
resubmitted her Form CA-1, the physician assistant notes dated January 3 to September 24,
2014, and Dr. Baer’s reports.
OWCP received appellant’s response to its August 25, 2014 development letter on
February 23, 2015. Appellant related that on July 25, 2014 she felt her right knee give out when
she went down some steps while delivering mail. She indicated that she did not work the next
day and stayed off her feet over the weekend. Appellant indicated that she went to the doctor’s
office on August 8, 2014 and submitted her claim the next day. She reported that she had a
previous job-related knee injury when she fell onto both her knees. Appellant also submitted an
authorization for examination and/or treatment (Form CA-16), which was mostly illegible.
Appellant continued to receive medical treatment from Dr. Baer. In progress notes dated
February 12 and March 5, 2015, Dr. Baer indicated that he treated appellant for tricompartmental
DJD of the right knee. He related that appellant had undergone physical therapy treatments and
cortisone injections, but still complained of her knee giving out and getting stuck periodically.
Dr. Baer provided examination findings and diagnosed right knee tricompartmental DJD with
mechanical symptoms.
In a March 5, 2015 preoperative evaluation, Leslie L. Goodavish, a physician assistant,
discussed appellant’s history and conducted an examination. She observed tenderness over the
medial line and pain on the patella. Ms. Goodavish diagnosed right knee medial meniscus tear.
On March 16, 2015 appellant underwent right knee surgery.
By decision dated April 9, 2015, OWCP affirmed the September 29, 2014 denial decision
with modification. It accepted that the July 25, 2014 employment incident had occurred as
alleged, but denied the claim finding insufficient medical evidence to establish that she sustained
a right knee condition causally related to the accepted incident.

3

Appellant appealed to the Board. By decision dated October 9, 2015, the Board affirmed
the April 9, 2015 OWCP decision finding that appellant failed to meet her burden of proof to
establish her traumatic injury claim. It found that the medical evidence of record was
insufficient to establish that appellant sustained a right knee condition causally related to the
July 25, 2014 employment incident.6
On January 6, 2016 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period March 16 to June 15, 2015. In a letter dated January 12, 2016, OWCP advised
appellant that her Form CA-7 claim was not payable because her initial traumatic injury claim
was denied in a decision dated September 29, 2014, which was upheld by reconsideration
decision dated April 29, 2015 and by the Board on October 9, 2015.
On October 24, 2016 OWCP received appellant’s request, through counsel, for
reconsideration in a letter dated October 19, 2016. He alleged that OWCP committed clear error
because it never considered evidence that was submitted after the April 9, 2015 OWCP decision
and failed to fully develop appellant’s claim. Counsel observed that the Board had noted this
evidence in its decision of October 9, 2015. He asserted that this new evidence established
appellant’s traumatic injury claim. Counsel cited to and included copies of ECAB decisions I.C.,
Docket No. 14-170 (issued June 3, 2014) and A.B., Docket No. 10-1070 (issued March 8, 2011).
By decision dated November 1, 2016, OWCP denied appellant’s October 24, 2016
reconsideration request because it was untimely filed and failed to demonstrate clear evidence of
error. It determined that the Board’s October 9, 2015 decision was the last merit review of the
case and appellant’s reconsideration request was received on October 24, 2016. The request for
reconsideration was not made within one year of the last merit decision and was therefore
untimely. OWCP further found that appellant’s reconsideration request and evidence submitted
failed to demonstrate clear evidence that OWCP’s most recent merit decision was in error. It
specifically noted that, despite appellant’s attorney’s allegations, no new medical evidence was
received after OWCP’s April 9, 2015 decision and before the Board’s October 9, 2015 decision.
LEGAL PRECEDENT
OWCP regulations provide that to be entitled to a merit review of an OWCP decision, an
application for reconsideration must be received within one year of the date of OWCP’s decision
for which review is sought.7 The one-year period begins on the date of the original decision.
However, a right to reconsideration within one year accompanies any subsequent merit decision
on the issues. This includes any hearing or review of the written record decision, any denial of
modification following reconsideration, any merit decision by the Board, and any merit decision
following action by the Board.8
6

Supra note 4.

7

20 C.F.R. § 10.607(a). The Board has found that the imposition of the one-year limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA. 5 U.S.C. § 8128(a); Leon D.
Faidley, Jr., 41 ECAB 104, 111 (1989).
8

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

4

OWCP, however, may not deny an application for review solely because the application
was untimely filed. It may consider an untimely application for reconsideration if the evidence
or argument contained in the reconsideration request demonstrates clear evidence of error on the
part of OWCP.9 In this regard, OWCP will conduct a limited review of how the newly submitted
evidence bears on the prior evidence of record.10 Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error.11
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.12 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.13 The evidence
submitted must not only be of sufficient probative value to create a conflicting 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.14 The Board has held that even a report such as a detailed, well-rationalized
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.15 OWCP procedures further provide that the term clear evidence of error is intended to
represent a difficult standard.16 If clear evidence of error has not been presented, OWCP should
deny the application by letter decision, which includes a brief evaluation of the evidence
submitted and a finding made that clear evidence of error has not been shown.17
The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.18

9

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

10

See 20 C.F.R. § 10.607(b); Nelson T. Thompson, 43 ECAB 919 (1992).

11

Jimmy L. Day, 48 ECAB 652 (1997).

12

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).

13

See Leona N. Travis, 43 ECAB 227, 240 (1991).

14

Annie L. Billingsley, 50 ECAB 210 (1998).

15

A.R., Docket No. 15-1598 (issued December 7, 2015).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.5a (October 2011).

17

Id.

18

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993).

5

ANALYSIS
The last merit decision in this case was the Board’s October 9, 2015 decision, which
affirmed the denial of appellant’s traumatic injury claim. On October 24, 2016 OWCP received
appellant’s request for reconsideration. In a decision dated November 1, 2016, it denied
appellant’s request for reconsideration because it was untimely filed and failed to demonstrate
clear evidence of error.
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. The one-year time limitation runs from the last merit decision of the
case.19 Appellant therefore had one year from the Board’s October 9, 2015 decision to request
reconsideration before OWCP. OWCP received appellant’s latest request for reconsideration on
October 24, 2016, which was outside the one-year time limit.20 Consequently, appellant must
demonstrate clear evidence of error by OWCP in denying her traumatic injury claim.21
The Board has reviewed the record and finds that the evidence submitted in the untimely
request for reconsideration does not raise a substantial question as to the correctness of OWCP’s
last merit decision and is therefore insufficient to demonstrate clear evidence of error.
Appellant’s traumatic injury claim was denied because the medical evidence of record
failed to establish that appellant sustained a right knee condition causally related to the July 25,
2014 employment incident. Counsel asserted that OWCP committed error because it did not
consider evidence that was submitted after the April 9, 2015 OWCP decision. He provided
copies of the ECAB decisions, which he asserted supported his argument that OWCP should
further review appellant’s case.
The Board finds that this evidence does not demonstrate clear evidence of error.
Although counsel asserted that OWCP failed to consider medical evidence, a review of the
record demonstrates that no medical evidence was received by OWCP after the April 9, 2015
reconsideration decision and before the Board’s October 9, 2015 decision. The Board finds that
the argument submitted by appellant in support of her reconsideration does not raise a substantial
question as to the correctness of OWCP’s decision and is insufficient to demonstrate clear
evidence of error. The underlying issue is a medical one, and had to be established through the
submission of medical evidence. Appellant did not submit any additional medical evidence in
support of her request for reconsideration of the April 9, 2015 decision. All of the evidence of
record had been considered and reviewed by OWCP and the Board in the prior merit decisions.
Appellant’s request for reconsideration does not demonstrate on its face that OWCP’s merit

19

Supra note 7.

20

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602(4) (October 2011).
For decisions issued on or after August 29, 2011, the one-year period begins on the date of the original decision, and
the application for reconsideration must be received by OWCP within one year of the date of its decision for which
review is sought.
21

Supra note 8; Debra McDavid, 57 ECAB 149 (2005).

6

decision was erroneous.22 Consequently, the reconsideration request is insufficient to establish
clear error by OWCP with respect to her traumatic injury claim.
The Board has found that the term “clear evidence of error” is intended to represent a
difficult standard.23 It is not enough merely to show that the evidence could be construed so as
to produce a contrary conclusion.24 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.25
On appeal, counsel alleges that OWCP’s decision was contrary to fact and law. As stated
above, the Board finds that appellant has failed to support her reconsideration request with
evidence or argument demonstrating that OWCP’s decision denying her traumatic injury claim
was clearly erroneous.
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.

22

See E.T., Docket No. 16-1912 (issued March 6, 2017).

23

James R. Mirra, 56 ECAB 738 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations,
Chapter 2.1602.5(a) (October 2011).
24

Supra note 12.

25

Supra note 13.

7

ORDER
IT IS HEREBY ORDERED THAT the November 1, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 26, 2017
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Buffalo, NY, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 08-1781
Issued: January 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 10, 2008 appellant filed a timely appeal from a January 8, 2008 decision of the
Office of Workers’ Compensation Programs denying her claim for fact of injury and a May 27,
2008 decision finding that she had abandoned her request for a hearing. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established that she was injured on November 8,
2007 in the performance of duty, as alleged; and (2) whether the Office properly found that she
abandoned her request for a hearing. On appeal she alleged that she forgot about her hearing and
unsuccessfully attempted to telephone the hearing representative the day after her scheduled
hearing.
FACTUAL HISTORY
On November 16, 2007 appellant, then a 47-year-old mail handler, filed a traumatic
injury claim (Form CA-1), alleging that, on November 8, 2007, while picking up trays of

damaged mail, she experienced pain and numbness in her upper neck, through her left arm, and
to the tips of her fingers. At the time, she was performing light duty from a March 29, 2003
work injury.
In a November 23, 2007 letter, the employing establishment controverted appellant’s
claim, arguing that she did not report her injury for eight days and continued working throughout
this time.
On December 3, 2007 the Office informed appellant of the deficiencies of her claim and
requested additional information.
In a December 19, 2007 statement, appellant alleged that after experiencing pain on
November 8, 2007 the pain subsided and she only felt residual stiffness for the next several days
until the pain moved to her left shoulder, elbow and fingers. She claimed she was diagnosed
with a pinched nerve.
Appellant also submitted several medical records. In a November 15, 2007 medical
report, Dr. Jenny Hyppolite, a Board-certified internist, recorded appellant’s claims that her
injury occurred at work while she was lifting a full mail tray. In response to a question asking
whether the relayed history was cause of appellant’s injury, she answered “yes.” A
corresponding November 15, 2007 radiology report of appellant’s cervical spine showed
degenerative changes with foraminal narrowing. Appellant also submitted a September 23, 2006
report addressing her prior work injury, a December 12, 2007 medical report and note signed by
a nurse practitioner.
In a decision dated January 8, 2008, the Office denied appellant’s claim finding that the
medical evidence was insufficient to establish that she sustained an injury in the performance of
duty, as alleged.
On January 29, 2008 appellant requested a telephonic hearing by an Office hearing
representative. In a letter dated April 14, 2008, the Office notified her that her hearing was
scheduled for May 13, 2008.1
In a May 27, 2008 decision, the Office determined that appellant abandoned her request
for a hearing, as she failed to appear at her telephonic hearing and she did not contact the Office
either prior or subsequent to the scheduled hearing.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under the Federal Employees’ Compensation Act2
has the burden of establishing the essential elements of her claim by the weight of the reliable,

1

In a letter dated February 1, 2008, appellant submitted additional medical evidence and requested
reconsideration. On March 5, 2008 the Office notified her that she could only request one appeal right at a time and
that because she had already requested an oral hearing, her reconsideration request would not be pursued.
2

5 U.S.C. §§ 8101-8193.

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probative and substantial evidence,3 including that she is an “employee” within the meaning of
the Act4 and that she filed her claim within the applicable time limitation.5 The employee must
also establish that she sustained an injury in the performance of duty as alleged and that her
disability for work, if any, was causally related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.9
ANALYSIS -- ISSUE 1
The Office accepted that appellant experienced pain in her upper extremities when she
picked up trays of damaged mail in the performance of duty on November 8, 2007. The issue is
whether appellant sustained an injury on November 8, 2007 while picking up trays of damaged
mail. The Board finds that appellant did not submit sufficient medical evidence to establish her
burden of proof.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
4

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
5

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
6

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

8

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
9

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

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In order to establish causation, appellant is required to submit rationalized medical
evidence, from a qualified physician, explaining how her injury is related to her employment
incident. She submitted a September 23, 2006 report, a December 12, 2007 report and note
signed by a nurse practitioner and a November 15, 2007 medical report signed by Dr. Hyppolite.
A nurse is not considered a qualified physician under the Act and therefore the September 23,
2006 report and December 12, 2007 note and record are of no probative value.10
The November 15, 2007 report fails to establish causation because it does not contain
medical rationale. Dr. Hyppolite recorded appellant’s claims that she was injured while picking
up mail and, where asked whether this incident caused appellant’s injury, the doctor answered
“yes.” The Board has held that an opinion on causal relationship, which consists only of a
physician answering “yes” to a medical form report question on whether the claimant’s disability
was related to the history, is of diminished probative value.11 Because Dr. Hyppolite did not
include any explanation or rationale for her opinion that appellant’s injury was related to her
work incident, this report is of diminished probative value.
The only other medical evidence of record is a September 23, 2006 medical report. This
report predates appellant’s November 8, 2007 incident and is insufficient to establish causation.
The Board finds that appellant has not established with sufficient medical evidence that
her injury was caused by picking up trays of damaged mail on November 8, 2007.
LEGAL PRECEDENT -- ISSUE 2
The statutory right to a hearing under 5 U.S.C. § 8124(b)(1) follows the initial final merit
decision of the Office. Section 8124(b)(1) provides as follows:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this section
is entitled, on request made within 30 days after the date of issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”12
With respect to abandonment of hearing requests, Chapter 2.1601.6.e of the Office’s
procedure manual provides in relevant part:
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to appear at a
scheduled hearing; and the claimant has failed to provide any notification for
such failure within 10 days of the scheduled date of the hearing. Under these
10

Under the Act, a “physician” includes surgeons, podiatrists, dentists, clinical psychologist, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C.
§ 8101(2).
11

Lucrecia M. Nielson, 42 ECAB 583, 594 (1991).

12

5 U.S.C. § 8124(b)(1).

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circumstances, [the Branch of Hearings and Review] will issue a formal decision
finding that the claimant has abandoned his or her request for a hearing and
return the case to the [district Office].”13
ANALYSIS -- ISSUE 2
Appellant was notified 30 days in advance that a telephonic hearing was scheduled for
May 13, 2008. On appeal, appellant stated that she forgot about her hearing and remembered the
next day, when she unsuccessfully attempted to contact the hearing representative.
The Board notes, however, that appellant was required to provide an explanation for her
failure to appear within 10 days of her May 13, 2008 telephonic hearing. For the first time on
appeal, she contended that she forgot about her hearing and unsuccessfully attempted to contact
the hearing representative after her scheduled hearing. The Board finds that there is no evidence
of record with respect to appellant’s failure to appear at the scheduled hearing that was received
by the Office within 10 days of the scheduled hearing.14
The evidence establishes that appellant did not request a postponement of the hearing, but
failed to appear at the hearing and failed to provide adequate explanation for her failure to appear
within 10 days thereafter. The Board therefore finds that appellant abandoned her request for a
hearing.
CONCLUSION
The Board finds that appellant failed to establish that she was injured on November 8,
2007 in the performance of duty, as alleged. The Board also finds that the Office properly found
that appellant abandoned her hearing request.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6.e (January 1999). See also G.J., 58 ECAB___ (Docket No. 07-1028, issued date August 16, 2007).
14

See William D. Ellis, Docket No. 05-1961 (issued December 14, 2005) (where the Board found that appellant
abandoned his request for a hearing despite his contentions on appeal that he was stuck in traffic and that he
unsuccessfully attempted to contact a hearing representative by telephone).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 27 and January 8, 2008 decisions are affirmed.
Issued: January 9, 2009
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, CENTERS FOR DISEASE
CONTROL, Atlanta, GA, Employer
__________________________________________

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Appearances:
Darryl A. Hines, for the appellant
Office of Solicitor, for the Director

Docket No. 08-1646
Issued: December 12, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 22, 2008 appellant filed an appeal of a nonmerit decision of the Office of
Workers’ Compensation Programs, dated February 21, 2008, denying her request for
reconsideration as it was untimely and did not establish clear evidence of error. Because more
than one year has elapsed between the most recent merit decision of the Office dated June 2,
2006 and the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s
claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
FACTUAL HISTORY
On February 21, 2006 appellant, then a 48-year-old public health adviser, filed an
occupational disease claim, CA-2 form, alleging “toxic reaction to occupational exposure to

chemical irritant contained in paint.” She noted that she first realized the condition was causally
related to her federal employment on September 12, 2005. In support of her claim, appellant
submitted an undated letter from Dr. Elise C. Morris, a specialist in allergy and immunology,
stating that appellant’s symptoms were “suggestive” of a hypersensitivity reaction or toxic
reaction due to chemicals in the workplace. Dr. Morris stated that she had received a letter from
a Mark Wilson, an industrial hygienist, stating that he had sampled the air in appellant’s office
and did not detect any volatile organic compounds.
By letter dated April 20, 2006, the Office notified appellant that the evidence submitted
was insufficient because it lacked a conclusive diagnosis from a physician. In response to this
letter, appellant submitted additional statements from herself, medical records from Peachtree
Allergy and Asthma Clinic, a Form CA-20 and duplicate CA-2 forms. In a report dated March 2,
2006, Dr. Theodore Lee, Board-certified in allergy and immunology, stated that appellant’s
diagnosis as: episodic bronchial constriction associated with vasomotor rhinitis. In a form
report dated April 27, 2006, Dr. Lee stated that appellant’s diagnosis was: bronchial
hyperresponsiveness and vasomotor rhinitis and indicated by checkmark that this condition was
causally related to her employment.
By decision dated June 2, 2006, the Office denied appellant’s claim because the medical
evidence submitted did not demonstrate that the alleged condition was related to employmentrelated events as required by the Federal Employees’ Compensation Act.
By letter dated June 2, 2006, appellant requested an oral hearing before the Branch of
Hearings and Review. An oral hearing was granted and scheduled for November 30, 2006.
Appellant failed to appear. By letter dated January 9, 2007, the Office informed appellant that as
she had not contacted the Office prior to or subsequent to the scheduled hearing to explain her
failure to appear, therefore, because of her unexplained failure to appear at the scheduled
hearing, the Branch of Hearings and Review deemed her to have abandoned her request for a
hearing.
By letter dated January 7, 2008, appellant requested review of her claim through
Senator Saxby Chambliss’ office. She submitted a statement dated August 16, 2007 from
Dr. Susan Tanner, her treating physician, concerning her condition and prognosis. Dr. Tanner
diagnosed appellant as suffering from severe allergic and autonomic nervous system dysfunction
when exposed to certain chemical compounds, particularly volatile aromatics, including,
cleaning products, gasoline and solvents. She concluded that appellant was unable to complete
“normal daily activities” without assistance including cleaning and cooking, interacting with
friends and family. Dr. Tanner explained that appellant must maintain a dust and irritant free
living space, limit exposure to fragrances, avoid fumes from plastics, rubber, paint,
formaldehyde, and exposure to extreme weather conditions. She stated that appellant’s
prognosis was guarded and she should avoid exposure to irritants whenever possible. Appellant
also submitted a June 2007 report from Dr. Diane Bennett-Johnson, an internist, who noted that
over the past year appellant had been having symptoms consistent with multiple chemical
sensitivity illness. Dr. Bennett-Johnson recommended that appellant’s employment be changed
to avoid chemical triggers. Appellant also submitted a memorandum dated November 27, 2007
from an employing establishment physician, Dr. Patricia M. Simone, who concluded that
appellant was no longer qualified to perform the essential duties of her position.

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By decision dated February 21, 2008, the Office found that appellant’s request for review
was untimely filed. It performed a limited review of the evidence submitted to ascertain whether
the evidence submitted demonstrated clear error on the part of the Office at the time of the
original decision. The Office concluded that the evidence submitted did not manifest on its face
that it committed clear error and denied appellant’s request for reconsideration.
LEGAL PRECEDENT
Section 8128(a) of the Act does not entitle a claimant to a review of an Office decision as
a matter of right.1 This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.2 The Office, through regulations,
has imposed limitations on the exercise of its discretionary authority. One such limitation is that
the Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.3 If submitted by mail, the application
will be deemed timely if postmarked by the U.S. Postal Service within the time period allowed.
If there is no such postmark, or it is not legible, other evidence such as (but not limited to)
certified mail receipts, certificate of service, and affidavits, may be used to establish the mailing
date.4 In the absence of this evidence, the Office procedures state that the date of the
reconsideration request letter should be used to determine timeliness.5 The Board has found that
the imposition of this one-year time limitation does not constitute an abuse of the discretionary
authority granted the Office under 5 U.S.C. § 8128(a).6
In those cases where a request for reconsideration is not timely filed, the Board had held
however that the Office must nevertheless undertake a limited review of the case to determine
whether there is clear evidence of error pursuant to the untimely request.7 Office procedures
state that the Office will reopen an appellant’s case for merit review, notwithstanding the oneyear filing limitation set forth in 20 C.F.R. § 10.607(b), if appellant’s application for review
shows clear evidence of error on the part of the Office.8
To establish clear evidence of error, an appellant must submit evidence relevant to the
issue which was decided by the Office.9 The evidence must be positive, precise and explicit and
1

Thankamma Mathews, 44 ECAB 765, 768 (1993).

2

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

3

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in the Office’s limitation of its discretionary
authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
4

20 C.F.R. §§ 10.607; 10.608(b).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1) (January 2004).

6

5 U.S.C. § 10.607(b); Thankamma Mathews, supra note 1 at 769; Jesus D. Sanchez, supra note 2 at 967.

7

Rex L. Weaver, 44 ECAB 535 (1993).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

9

See Dean D. Beets, 43 ECAB 1153 (1992).

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must be manifested on its face that the Office committed an error.10 Evidence which does not
raise a substantial question concerning the correctness of the Office s decision is insufficient to
establish clear evidence of error.11 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.12 This entails a limited review by the Office 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 the Office.13 To
show 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 prima facie shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of the Office’s decision.14 The Board makes
an independent determination of whether an appellant has submitted clear evidence of error on
the part of the Office such that the Office abused its discretion in denying merit review in the
face of such evidence.15
ANALYSIS
The Office correctly determined that appellant’s request for reconsideration was untimely
filed. The last merit decision in the case was dated June 2, 2006. The one-year time limitation
began running June 3, 2006. Therefore, because appellant’s request for reconsideration was
submitted January 7, 2008, after the one-year time limit had expired, the request was untimely.
But even when an application for review is untimely, the Office will undertake a limited
review to determine whether the application presents clear evidence that the final merit decision
was in error. Office procedures provide that the term clear evidence of error is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that
the Office made an error (for example, proof of a miscalculation in a schedule award). Evidence
such as a detailed, well-rationalized report, which if submitted prior to the Office’s denial, would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error and would not require a review of a case.
The Office denied appellant’s occupational disease claim on the grounds that she failed to
submit medical opinion evidence establishing a causal relationship between her diagnosed
autonomic nervous system dysfunction and the duties of her federal position as a public health
adviser. Appellant submitted reports prepared during the year 2007 from Drs. Tanner, BennettJohnson and Simone in support of her request for reconsideration. These letters indicate that
appellant has been diagnosed with severe allergic and autonomic nervous system dysfunction
and that her medical condition deteriorated in 2007. The evidence submitted in support of
10

See Leona N. Travis, 43 ECAB 227 (1991).

11

See Jesus D. Sanchez, supra note 2.

12

See Leona N. Travis, supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919 (1992).

14

See Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied, 41 ECAB 458 (1990).

15

Gregory Griffin, supra note 3.

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appellant’s untimely request for reconsideration also supports that appellant was found to be
“unfit” for duty by the employing establishment because she could no longer travel. The
evidence submitted by appellant however is not sufficient to establish clear evidence of error on
the part of the Office in denying appellant’s claim for lack of rationalized medical evidence
supporting causal relationship between the medical diagnosis and appellant’s employment.
The new evidence submitted in support of the untimely request for reconsideration is not
of sufficient probative value to prima facie shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of the Office’s decision. While the
evidence does offer a diagnosis of appellant’s condition, it lacks the requisite detailed discussion
of appellant’s employment work duties and any semblance of medical reasoning in support of a
finding of causal relationship between appellant’s diagnosed condition and factors of her federal
employment.
The Office reviewed the evidence appellant submitted and properly found it to be
insufficient to prima facie shift the weight of the evidence in favor of appellant. Consequently,
the evidence submitted by appellant on reconsideration is insufficient to establish clear evidence
of error on the part of the Office such that the Office abused its discretion in denying merit
review. The Board finds that the Office did not abuse its discretion in denying further merit
review.
CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of the Office in her reconsideration request dated January 7, 2008. Inasmuch as
appellant’s reconsideration request was untimely filed and failed to establish clear evidence of
error, the Office properly denied further review on February 21, 2008.

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ORDER
IT IS HEREBY ORDERED THAT the February 21, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 12, 2008
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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