J.D. and U.S. Postal Service, Roseland Postal Facility, Chicago, IL (Board decision, June 17, 2010)

ECAB final decision. The Board affirmed OWCP's April 3, 2009 decision denying reconsideration as untimely and unsupported by clear evidence of error. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

J.D., a postal employee whose respiratory condition claim had been denied, requested reconsideration more than a year after the Board's earlier decision. She said she had sent an earlier request to the wrong address, but OWCP found no timely request in its claim files. The medical records accompanying her later request had already been considered. The Board found that her request was untimely and did not show clear evidence of error that would justify reopening the claim. It affirmed OWCP's denial without reviewing the underlying respiratory claim again.

Decision snapshot

• Authority: Reconsideration under 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.607(b).
• Outcome: April 3, 2009 denial of reconsideration affirmed.
• Key point: Previously considered evidence did not establish clear error in an untimely reconsideration request.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.D., Appellant
)
)
and ) Docket No. 09-2374
) Issued: June 17, 2010
U.S. POSTAL SERVICE, ROSELAND POSTAL
)
FACILITY, Chicago, IL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

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

JURISDICTION

On September 23, 2009 appellant filed a timely appeal from an April 3, 2009 nonmerit decision of the Office of Workers’ Compensation Programs, denying her request for reconsideration on the grounds that it was not timely filed and did not present clear evidence of error. The most recent decision of record is that of the Board dated December 15, 2006. Therefore, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim.

ISSUE

The issue is whether the Office properly denied appellant’s December 19, 2008 request for reconsideration on the grounds that it was not timely filed and did not establish clear evidence of error.

On appeal, appellant asserts that she timely filed a request for reconsideration and that the Office wrongfully failed to develop her claim as a traumatic injury. FACTUAL HISTORY

This is the second appeal before the Board in this case. By decision and order issued December 15, 2006,1 the Board affirmed a May 22, 2006 decision of the Office denying appellant’s claim for a respiratory condition. The Board found that she did not submit sufficient medical evidence to establish causal relationship. The law and the facts of the case as set forth in the Board’s decision are incorporated by reference.

In a December 15, 2008 letter received by the Office on December 19, 2008, appellant requested reconsideration of the Board’s December 15, 2006 decision and order. She asserted that she requested reconsideration by a December 15, 2007 letter but sent it to an incorrect address. Appellant asserted that the medical record established that workplace exposures to “diesel exhaust fumes, silica dust and cleaning chemicals” caused “acute bronchitis, carbon monoxide poisoning, possible silicosis and a chronic upper respiratory condition.” She contended that the Office could have developed her claim as one for traumatic injury and not an occupational disease. Appellant requested that the Office further develop the medical evidence. She enclosed medical records considered by the Office prior to the May 22, 2006 decision.

By decision dated April 3, 2009, the Office denied reconsideration on the grounds that appellant’s request was not timely filed and failed to present clear evidence of error. It found that the December 19, 2008 request was not filed within one year of the Board’s December 15, 2006 decision and order, the final decision in the case. Also, the evidence submitted was insufficient to establish a substantial question concerning the correctness of the Board’s decision and order. The Office noted that there was no December 15, 2007 request for reconsideration in the present claim file or in appellant’s nine other claim files.

LEGAL PRECEDENT

Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle a claimant to a review of an Office decision as a matter of right.3 This section vests the Office with discretionary authority to determine whether it will review an award for or against compensation.4 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.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

1
Docket No. 06-1980 (issued December 15, 2006).
2
5 U.S.C. § 8128(a).
3
Thankamma Mathews, 44 ECAB 765, 768 (1993).
4
Thankamma Mathews, supra note 3; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).
5
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). 6 5 U.S.C. § 10.607(b); Thankamma Mathews, supra note 3; Jesus D. Sanchez, supra note 4.

2
 In those cases where requests for reconsideration are not timely filed, 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 in accordance with section 10.607(b) of its regulations.7 Office regulations state that the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in the Office’s regulations, if the claimant’s request for reconsideration shows “clear evidence of error” on the part of the Office.8

To establish clear evidence of error, a claimant must submit evidence relevant to the issue which was decided by the Office.9 The evidence must be positive, precise and explicit and must be manifest on its face that the Office committed an error.10 The evidence 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.11 Evidence which does not raise a substantial question concerning the correctness of the Office’s decision is insufficient to establish clear evidence of error.12 It is not enough merely to show that the evidence could be construed so as to produce a contrary conclusion.13 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.14 The Board must make an independent determination of whether a claimant 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

In its April 3, 2009 decision, the Office properly determined that appellant failed to file a timely application for review. The most recent merit decision is the Board’s December 15, 2006 decision and order. Appellant requested reconsideration on December 19, 2008, more than one year after December 15, 2006. Accordingly, her request for reconsideration was not timely filed.

The Board finds that appellant’s December 19, 2008 letter does not raise a substantial question as to whether the Board’s December 15, 2006 decision was in error or prima facie shift the weight of the evidence in her favor. In that letter, and on appeal, appellant contends that she filed a timely request for reconsideration on December 15, 2007. However, there is no request

7
Thankamma Mathews, supra note 3.
8
20 C.F.R. § 10.607(b).
9
Thankamma Mathews, supra note 3.
10
Leona N. Travis, 43 ECAB 227 (1991).
11
James R. Mirra, 56 ECAB 738 (2005).
12
Jesus D. Sanchez, supra note 4.
13
Leona N. Travis, supra note 10.
14
Nelson T. Thompson, 43 ECAB 919, 922 (1992).
15
Gregory Griffin, supra note 5.

3 for reconsideration of record filed within one year of the Board’s December 15, 2006 decision. The Office also reviewed appellant’s nine other claim files and found no timely request for reconsideration of the Board’s December 15, 2006 decision.

The Office also found that the evidence accompanying the December 19, 2008 request was insufficient to raise a substantial question as to the correctness of the Board’s December 15, 2006 decision. Appellant submitted copies of previously considered medical evidence to reiterate an argument previously rejected by the Office. Consequently, the Office properly denied her reconsideration request as it did not establish clear evidence of error.

On appeal, appellant asserted that the Office should have developed her claim as one for traumatic injury and not occupational disease. This argument is not relevant to the issue on appeal of whether her December 19, 2008 request for reconsideration established clear evidence of error.16

CONCLUSION

The Board finds that appellant’s December 19, 2008 request for reconsideration was untimely filed and failed to show clear evidence of error.

16
Appellant submitted new evidence accompanying her request for appeal. The Board may not consider new evidence for the first time on appeal that was not before the Office at the time the final decision was issued in the case. 20 C.F.R. § 501.2(c). Such evidence may be submitted to the Office accompanying a valid request for reconsideration.

4
 ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated April 3, 2009 is affirmed.

Issued: June 17, 2010
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

5