A.S. and U.S. Postal Service, Post Office, Oklahoma City (Board decision, March 25, 2024)

ECAB final decision. The Board affirmed OWCP's denial of the reconsideration request as untimely and unsupported by clear evidence of error. The Board did not review the underlying compensation merits. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

A postal worker asked OWCP in July 2023 to reconsider a January 2022 decision about compensation for missed work after an accepted back injury. OWCP denied the request because it arrived after the one-year filing period. The Board found that the additional work restriction reports did not show clear error in the earlier decision, the standard for reopening an untimely request. It affirmed OWCP's denial without deciding the underlying claim again.

Decision snapshot

• Authority: 5 U.S.C. § 8128(a); 20 C.F.R. § 10.607(a) and (b).
• Outcome: Denial of reconsideration affirmed.
• Key point: A late reconsideration request must show clear evidence of error to receive merit review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.S., Appellant
)
)
and ) Docket No. 24-0104
) Issued: March 25, 2024
U.S. POSTAL SERVICE, POST OFFICE,
)
Oklahoma City, OK, 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
PATRICIA H. FITZGERALD, Deputy Chief Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 10, 2023 appellant filed a timely appeal from a September 13, 2023 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed from the last merit decision, dated January 24, 2022, 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 this case.

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

FACTUAL HISTORY

On July 26, 2000 appellant, then a 39-year-old clerk, filed a traumatic injury claim (Form CA-1) alleging that on that day she sustained a back condition when she was struck by a fully

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5 U.S.C. § 8101 et seq. loaded mail cart while in the performance of duty. OWCP accepted her claim for lumbar sprain on March 7, 2001, later expanding the acceptance of her claim to include lumbar intervertebral disc disorders with myelopathy. Appellant was medically released to resume light-duty work as of July 28, 2000.

In a work status form dated June 20, 2016, Dr. John W. Ellis, an osteopath Board-certified in family medicine, released appellant to work with restrictions of no lifting more than two pounds for up to four hours per day, no standing or walking more than one hour per day, and 15-minute breaks every hour. He stated that appellant should work no more than four hours per day.

On January 26, 2017 appellant accepted an offer of modified assignment from the employing establishment for four hours of limited-duty work per day.

Dr. Ellis provided the same restrictions as in the work status form of June 20, 2016 in a form dated March 2, 2017. In a work status form dated April 3, 2017, Dr. Ellis stated that appellant was temporarily totally disabled from April 3 through 16, 2017 and would be released to light duty with the same restrictions on April 17, 2017.

On April 24, 2019 appellant submitted a claim for compensation (Form CA-7) for leave without pay from April 3 through 15, 2017.

By letter dated January 14, 2020, Dr. Ellis opined that appellant was totally disabled due to her work-related injuries from April 3 through 15, 2017, equivalent to 80 hours. He explained that appellant was off work due to worsening of her work-related injury on intermittent dates from May 2, 2017 through July 20, 2018. Dr. Ellis noted that the worsening included flare-ups, increased swelling, decreased mobility, and a need for increased pain medication during this period. In letters dated September 21, 2020, he explained that appellant was temporarily totally disabled due to her work-related injuries on intermittent dates from April 3 through 15, 2017, May 2 through October 13, 2017, and May 18, 2018 through July 20, 2019 as symptoms of her accepted conditions worsened. Dr. Ellis noted that the worsening included flare-ups, increased swelling, and decreased mobility, requiring increased pain medications.

By letter dated February 23, 2021, Dr. Ellis reviewed the history of injury and reiterated that appellant was totally disabled from work due to her work-related injuries from April 3 through 15, 2017. He stated that the temporary total disability was not just due to pain but was due to worsening of her conditions including flare-ups, increased swelling, and decreased mobility, requiring increased pain medications.

By decision dated January 24, 2022, OWCP granted appellant’s claim for compensation for four hours per day from April 3 through 15, 2017 based on the June 20, 2016 report of Dr. Ellis; however, it denied the remaining claimed disability, finding that she had not established total disability from work from April 3 through 15, 2017.

On July 13, 2023 appellant requested reconsideration of OWCP’s January 24, 2022 decision. With her request, she submitted duty status reports (Form CA-17) dated July 24 and August 23, 2023, which contained work restrictions.

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 By decision dated September 13, 2023, OWCP denied appellant’s request for reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a matter of right.2 OWCP has discretionary authority in this regard and has imposed certain limitations in exercising its authority.3 One such limitation is that the request for reconsideration must be received by OWCP within one year of the date of the decision for which review is sought.4 Timeliness is determined by the document receipt date, i.e., the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS).5

OWCP may not deny a request for reconsideration solely because it was untimely filed.
When a request for reconsideration is untimely filed, it must nevertheless undertake a limited review to determine whether the request demonstrates clear evidence of error.6 OWCP’s regulations and procedures provide that OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s request for reconsideration demonstrates clear evidence of error on the part of OWCP.7

The Board notes that clear evidence of error is intended to represent a difficult standard.8 Evidence that does not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear evidence of error.9 It is not enough merely to establish that the evidence could be construed so as to produce a contrary conclusion.10 This entails a limited review by OWCP of the evidence previously of record and whether the new evidence demonstrates clear error on the part of OWCP.11 In this regard, the Board will limit its focus to a review of how the

2
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of compensation at any time on [his or her] own motion or on application.” 5 U.S.C. § 8128(a). 3 20 C.F.R. § 10.607.
4
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020). 5 Id.
6
20 C.F.R. § 10.607(b); T.C., Docket No. 19-1709 (issued June 5, 2020); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 7 Id. at § 10.607(b); supra note 4 at Chapter 2.1602.5a (February 2016).
8
R.K., Docket No. 19-1474 (issued March 3, 2020).
9
U.C., Docket No. 19-1753 (issued June 10, 2020).
10
T.C., supra note 6.
11
Id.

3 newly submitted evidence bears on the prior evidence of record.12 The Board makes an independent determination as to whether a claimant has demonstrated clear evidence of error on the part of OWCP.13

ANALYSIS

The Board finds that OWCP properly determined that appellant’s July 13, 2023 request for reconsideration was untimely filed and failed to demonstrate clear evidence of error.

As noted above, OWCP’s regulations establish a one-year time limit for requesting reconsideration, which begins on the date of the most recent merit decision. Herein, the most recent merit decision was dated January 24, 2022. As OWCP received appellant’s request for reconsideration on July 13, 2023, more than one year after the January 24, 2022 decision, the Board finds that the request was untimely filed.14 Consequently, appellant must demonstrate clear evidence of error by OWCP in denying her claim for compensation.15

The Board further finds that appellant has not demonstrated clear evidence of error on the part of OWCP in its January 24, 2022 decision.

In support of appellant’s untimely request for reconsideration, appellant submitted duty status reports (Form CA-17) dated July 24 and August 23, 2023, which contained work restrictions. The term clear evidence of error, however, is intended to represent a difficult standard.16 As noted above, evidence that does not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear evidence of error.17 It is not enough merely to establish that the evidence could be construed so as to produce a contrary conclusion.18 Thus, the Board finds that the evidence submitted on reconsideration does not demonstrate clear evidence of error on the part of OWCP in its January 24, 2022 decision.19

As appellant’s request for reconsideration was untimely filed and failed to demonstrate clear evidence of error, the Board finds that OWCP properly denied appellant’s request for reconsideration.

12
R.K., supra note 8.
13
Id.
14
D.B., Docket No. 19-0648 (issued October 21, 2020); R.T., Docket No. 20-0298 (issued August 6, 2020).
15
Id.
16
Id.
17
Supra note 10.
18
Supra note 11.
19
See W.R., Docket No. 18-1042 (issued February 12, 2019).

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 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.

ORDER

IT IS HEREBY ORDERED THAT the September 13, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 25, 2024
Washington, DC

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

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

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

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