K.P. and U.S. Postal Service, Bennington Post Office (Board decision, February 19, 2025)

ECAB remand decision. The Board reversed OWCP’s untimeliness ruling and returned the reconsideration request for review under the timely-request standard. The underlying claim remains unresolved. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A postal custodial worker requested reconsideration after OWCP denied her back injury claim. OWCP’s last merits decision was dated May 31, 2023, and it received her request on May 31, 2024. OWCP treated that request as late and required proof of clear error. The Board held the request was timely, reversed the rejection, and remanded for a decision under the proper standard.

Decision snapshot

• Authority: FECA; 20 C.F.R. § 10.607(a).
• Outcome: Untimeliness denial reversed; reconsideration request remanded.
• Key point: Receipt on the one-year anniversary of the merits decision met the reconsideration deadline.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.P., Appellant
)
)
and ) Docket No. 25-0156
)
Issued: February 19, 2025
U.S. POSTAL SERVICE, BENNINGTON POST )
OFFICE, Bennington, VT, Employer )
__________ )

Appearances: Case Submitted on the Record
Sheilah McCarthy, for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 2, 2024 appellant, through her representative, filed a timely appeal from a June 7, 2024 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from OWCP’s last merit decision, dated May 31, 2023, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case. 3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 5 U.S.C. § 8101 et seq.
3
The Board notes that, following the June 7, 2024 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedures provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.
ISSUE

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

FACTUAL HISTORY

On September 5, 2022 appellant, a 59-year-old custodial laborer, filed a traumatic injury claim (Form CA-1), alleging that on August 30, 2022 she sustained a nerve entrapment and a bulged disc in her lower spine, while in the performance of duty. She explained that her custodial duties included carrying a backpack vacuum cleaner and repetitively ascending and descending a ladder. Appellant stopped work on August 30, 2022.

In a September 8, 2022 development letter, OWCP informed appellant of the deficiencies of her claim. It advised her of the type of factual and medical evidence necessary to establish her claim and provided a questionnaire for her completion. OWCP afforded appellant 30 days to provide the necessary evidence. No response was received.

By decision dated October 21, 2022, OWCP denied appellant’s traumatic injury claim, finding that the medical evidence of record was insufficient to establish a medical condition causally related to the accepted August 30, 2022 employment incident.

On October 30, 2022, appellant, through her representative, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review. A hearing was held on February 14, 2023.

By decision dated May 31, 2023, OWCP’s hearing representative affirmed the October 21, 2022 decision.

On April 18, 2024, Dr. Briana Novello, a Board-certified physiatrist, noted appellant’s history of lumbar spinal fusion at L5-S1 and newer left lower extremity radicular pain in the setting of L4-5 disc herniation from a work-related injury. Appellant reported that in August 2022 she lifted an item over 10 pounds and sustained severe back spasm pain, radiation into the left bottom of foot, and weakness. She noted findings on physical examination of tenderness to palpation of left lumbar paraspinal, mild tenderness into the gluteal muscle, tenderness at piriformis on the left, and impaired range of motion secondary to pain. Dr. Novello diagnosed lumbar disc herniation, myofascial pain, and lumbar spondylosis.

On May 31, 2024, appellant requested reconsideration. She referenced a report from Dr. Novello dated April 18, 2024 and asserted that it provided sufficient rationale to support causal relationship between her diagnosed lumbar disc herniation at L4-5 and lumbar radiculopathy and the August 30, 2022 employment incident. Dr. Novello explained that the moment appellant lifted unexpectedly heavy bins she experienced severe back spasms and radiating pain.

By decision dated June 7, 2024, OWCP denied appellant’s request for reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

2
LEGAL PRECEDENT

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further merit review.4 This discretionary authority, however, is subject to certain restrictions. For instance, a request for reconsideration must be received within one year of the date of OWCP’s decision for which review is sought. 5 Timeliness is determined by the document receipt date, i.e., the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 6 Imposition of this one-year filing limitation does not constitute an abuse of discretion. 7

OWCP may not deny a reconsideration request solely because it was untimely filed. When a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited review to determine whether it demonstrates clear evidence of error. 8 If a request demonstrates clear evidence of error, OWCP will reopen the case for merit review. 9

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the issue, which was decided by OWCP. The evidence must be positive, precise, and explicit and must manifest on its face that OWCP committed an error. Evidence that does not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear evidence of error. It is not enough to merely show that the evidence could be construed so as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence submitted with the reconsideration request bears on the evidence previously of record and whether the new evidence demonstrates clear error on the part of OWCP. 10

OWCP’s procedures note that the term clear evidence of error is intended to represent a difficult standard and the claimant must present evidence, which on its face shows that OWCP made an error.11 Evidence such as a detailed, well-rationalized medical report, which, if submitted before the denial was issued, would have created a conflict in medical opinion requiring further

4
5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued March 16, 2009). 5 20 C.F.R. § 10.607(a).
6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4b (September 2020).
7
R.L., Docket No. 18-0496 (issued January 9, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 8 See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 9 U.C., Docket No. 19-1753 (issued June 10, 2020); M.L., Docket No. 09-0956 (issued April 15, 2010). See also id. at § 10.607(b); supra note 6 at Chapter 2.1602.5 (September 2020). 10 J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).
11
J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 6 at Chapter 2.1602.5a (September 2020).

3 development, is not clear evidence of error. 12 The Board makes an independent determination of whether a claimant has demonstrated clear evidence of error on the part of OWCP. 13

ANALYSIS

The Board finds that OWCP improperly denied appellant’s request for reconsideration of the merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of error.

OWCP’s last merit decision is dated May 31, 2023. As noted above, a timely request for reconsideration must be received by OWCP within one year of the date of the decision for which review is sought. 14 OWCP received appellant’s request for reconsideration on May 31, 2024. Therefore, her request is considered timely and subject to the standard for reviewing timely requests for reconsideration under 20 C.F.R. § 10.606(b)(3). The case must therefore be remanded for an appropriate decision regarding appellant’s timely request for reconsideration.

CONCLUSION

The Board finds that OWCP improperly denied appellant’s request for reconsideration of the merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of error.

12
Id.
13
D.S., Docket No. 17-0407 (issued May 24, 2017).
14
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. The one-year period begins on the next day after the date of the original contested decision. When determining the one-year period for requesting reconsideration, the last day of the period should be included unless it is a Saturday, a Sunday or a legal holiday. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received date in iFECS. Id. at Chapter 2.1602.4b.

4
ORDER

IT IS HEREBY ORDERED THAT the June 7, 2024 decision of the Office of Workers’ Compensation Programs is reversed, and the case is remanded for further proceedings consistent with this decision of the Board.

Issued: February 19, 2025
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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