B.C. and U.S. Postal Service, Richmond Post Office (Board decision, February 7, 2025)

ECAB final decision. The Board affirmed OWCP’s rejection of an untimely reconsideration request. 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 worker asked OWCP to reconsider a decision on her compensation claim years after the last adverse merits ruling. OWCP found the request late and found no clear evidence of error. The Board agreed that the one-year reconsideration period had expired and that the submission did not meet the narrower standard for an untimely request. It affirmed the refusal to reopen the claim.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Late reconsideration request denied.
• Key point: The request missed the one-year deadline and did not show clear error.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.C., Appellant
)
)
and ) Docket No. 25-0214
)
Issued: February 7, 2025
U.S. POSTAL SERVICE, RICHMOND POST )
OFFICE, Richmond, VA, 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 VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 23, 2024 appellant filed a timely appeal from a December 3, 2024 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from OWCP’s last merit decision, dated September 27, 2018 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 over the merits of this case. 2

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.

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the December 3, 2024 decision, appellant submitted additional evidence to OWCP and on appeal to the Board. 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.
FACTUAL HISTORY

This case has previously been before the Board on different issues.3 The facts and circumstances as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.

On March 26, 1997, appellant, a 43-year-old letter sorting machine operator, filed a traumatic injury claim (Form CA-1), alleging that she sustained injuries to her neck, back and both arms, while in the performance of duty. On August 11, 1997, OWCP accepted the claim for bilateral carpal tunnel syndrome. Appellant underwent right carpal tunnel release surgery on August 28, 1997. OWCP paid her wage-loss compensation on the periodic rolls.

In a September 25, 2017 letter, OWCP referred to Dr. James Schwartz, a Board-certified orthopedic surgeon, for a second opinion examination on October 28, 2017 at 11:00 a.m. Eastern Standard Time (EST), to determine the status of her accepted employment-related conditions. The letter explained that her compensation benefits would be suspended for failure to report to or for obstruction of the examination, pursuant to 5 U.S.C. § 8123(d).

Appellant informed OWCP on October 27, 2017 that she did not feel well and that she would not attend the October 28, 2017 appointment.

In an October 27, 2017 letter, OWCP referred appellant to Dr. Schwartz for a second opinion examination on November 18, 2017 at 11:00 a.m. EST to determine the status of her accepted employment-related conditions. The letter explained that her compensation benefits would be suspended for failure to report to or for obstruction of the examination , pursuant to 5 U.S.C. § 8123(d).

On November 20, 2017, OWCP’s scheduling service advised that appellant did not attend the November 18, 2017 appointment with Dr. Schwartz.

In a notice dated May 24, 2018, OWCP proposed to suspend appellant’s wage-loss compensation and medical benefits because she failed to attend the November 18, 2017 appointment with Dr. Schwartz without providing good cause for her nonattendance. It informed her that 5 U.S.C. § 8123(d) provided that, if an employee refused to submit to or obstructed an examination, his or her right to compensation would be suspended until the refusal or obstruction stops. OWCP afforded appellant 14 days to submit new and pertinent explanation for not attending the examination with Dr. Schwartz. It noted, “[i]f good cause is not established, entitlement to compensation and medical benefits will be suspended in accordance with 5 U.S.C. § 8123(d) until you attend and fully cooperate with the examination.” OWCP further indicated that, if appellant intended to report to, and fully cooperate with, any rescheduled examination with Dr. Schwartz, she should contact OWCP immediately in order to reschedule the examination. No explanation of good cause was received.

By decision dated September 27, 2018, OWCP suspended appellant’s wage-loss compensation and medical benefits, effective that date, pursuant to 5 U.S.C. § 8123(d), due to her

3
Docket No. 00-2795 (issued September 14, 2001); Docket No. 20-1415 (issued April 14, 2021).

2 failure to attend the November 18, 2017 appointment with Dr. Schwartz. It found that she had not presented good cause for not attending the appointment.

In a November 6, 2018 letter, OWCP referred appellant to Dr. William Andrews, a Board- certified orthopedic surgeon, for a second opinion examination at 11:00 a.m. EST on November 27, 2018, to determine the status of her accepted employment-related conditions. The letter explained that her compensation benefits would be suspended for failure to report to or for obstruction of the examination.

In a letter dated November 14, 2018, appellant indicated that she missed the November 18, 2017 appointment with Dr. Schwartz because she was in the emergency room being treated for multiple ongoing conditions. She indicated that she informed OWCP of her circumstances. In a letter dated November 16, 2018, appellant indicated that the November 27, 2018 appointment was located over two hours from her home, which she indicated was an unreasonable distance to travel.

On February 25, 2019, appellant requested reconsideration of the September 27, 2018 decision.

By decision dated May 16, 2019, OWCP denied modification of the September 27, 2018 decision.

On June 12, 2019, appellant requested reconsideration.

In a July 25, 2019 letter, OWCP referred appellant to Dr. Andrews, for a second opinion examination at 4:30 p.m. EST on August 15, 2019, to determine the status of her accepted employment-related conditions. The letter explained that her compensation benefits would be suspended for failure to report to or for obstruction of the examination , pursuant to 5 U.S.C.
§ 8123(d).

On August 16, 2019, OWCP’s scheduling service advised that appellant did not attend the August 15, 2019 appointment with Dr. Andrews.

In an August 23, 2019 letter, OWCP referred appellant to Dr. Andrews for a second opinion examination at 2:30 p.m. EST on September 9, 2019, to determine the status of her accepted employment-related conditions. The letter explained that her compensation benefits would be suspended for failure to report to or for obstruction of the examination. Appellant attended this appointment.

By decision dated September 19, 2019, OWCP vacated the May 16, 2019 decision. It indicated that appellant attended the September 9, 2019 appointment with Dr. Andrews. OWCP restored appellant’s compensation to the date she agreed to attend the examination.

On November 18, 2024, appellant requested reconsideration of the September 27, 2018 OWCP decision. She asserted that she always followed the rules and regulations and provided sufficient evidence to support her failure to attend a second opinion appointment whether it be due to sickness, the weather, or COVID-19. Appellant requested that OWCP grant her back pay.

By decision dated December 3, 2024, OWCP 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.

3
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 7 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 7 at Chapter 2.1602.5a (September 2020).

4 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 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.

OWCP’s regulations14 and procedures15 establish a one-year time limit for requesting reconsideration, which begins on the date of the last merit decision issued in the case. A right to reconsideration within one year also accompanies any subsequent merit decision on the issues. 16 The most recent adverse merit decision was OWCP’s September 27, 2018 decision. As OWCP did not receive her request for reconsideration until November 18, 2024, more than one year after the September 27, 2018 decision, the Board finds that it was untimely filed. Consequently, appellant must demonstrate clear evidence of error on the part of OWCP in denying her claim.

On reconsideration, appellant asserted that she always followed the rules and regulations and provided sufficient evidence to support her failure to attend a second opinion appointment. Appellant requested that OWCP grant her back pay. The Board, however, has reviewed these allegations and finds that they do not, on their face or otherwise, demonstrate clear evidence of error in OWCP’s September 27, 2018 decision. The mere statements do not establish error on the part of OWCP and fails to demonstrate clear evidence of error in OWCP’s September 27, 2018 decision.17 As noted above, the term clear evidence of error is intended to represent a difficult standard and the submitted evidence does not show on its face that OWCP erred in the issuance of its September 27, 2018 decision.18

Accordingly, the Board finds that the statement submitted on reconsideration does not demonstrate clear evidence of error on part of OWCP in its September 27, 2018 decision.

CONCLUSION

The Board finds that 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.

12
Id.
13
D.S., Docket No. 17-0407 (issued May 24, 2017).
14
20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); Alberta Dukes, 56 ECAB 247 (2005).
15
Supra note 7 at Chapter 2.1602.4 (September 2020-); see L.A., Docket No. 19-0471 (issued October 29, 2019);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).
16
20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).
17
R.M., Docket No. 18-1393 (issued February 12, 2019); J.R., Docket No. 07-1112 (issued November 27, 2007).
18
See supra note 12.

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ORDER

IT IS HEREBY ORDERED THAT the December 3, 2024 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 7, 2025
Washington, DC

Alec J. Koromilas, 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

6