C.B. and U.S. Postal Service, Columbia Post Office (Board decision, March 26, 2025)

ECAB final decision. The Board affirmed OWCP's refusal to reopen the claim because the request was late and did not show clear evidence of error. 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 rural carrier sought reconsideration of an earlier injury ruling after the filing period expired. The Board found the request did not establish clear error in the prior decision. It upheld OWCP's denial of merits reconsideration.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Untimely reconsideration request denied.
• Key point: The request did not satisfy the clear-error standard.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.B., Appellant
)
)
and ) Docket No. 25-0297
)
Issued: March 26, 2025
U.S. POSTAL SERVICE, POST OFFICE, )
Columbia, SC, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alexandra Reasonover, Esq., for the appellant1
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 February 6, 2025 appellant, through counsel, filed a timely appeal from an August 30, 2024 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed from OWCP’s last merit decision, dated July 28, 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 August 30, 2024 decision, OWCP received additional evidence. However, the Board’s Rules of Procedure 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 December 8, 2020 appellant, then a 37-year-old rural carrier, filed a traumatic injury claim (Form CA-1) alleging that on December 3, 2020 she injured her head, neck, shoulders, back, right hip, leg, and ankle when she fell and hit her head on her vehicle door after she attempted to escape an attacking dog while in the performance of duty. She stopped work on December 3, 2020. OWCP accepted the claim for bilateral shoulder bursitis, a sprain of specified parts of the right shoulder girdle, sprain of the lumbar spine and pelvis, temporomandibular joint disorder, cervical sprain, sprain of specified parts of the shoulder girdle, subsequently encounter, and a sprain of the ligaments of the lumbar spine, subsequent encounter. It paid appellant wage-loss compensation on the supplemental rolls effective January 30, 2021, and on the periodic rolls effective February 28, 2021.

On April 29, 2021 Dr. Albert Humphrey, a Board-certified internist, diagnosed right shoulder contusion, sprain of the shoulder girdle, cervical sprain, lumbar sprain, and sciatica. He advised that appellant should remain off work. Dr. Humphrey continued to submit progress reports and work capacity evaluations (Form OWCP-5c) finding that appellant was disabled from work.

On August 17, 2021 OWCP referred appellant to Dr. Seth L. Jaffe, an osteopath, for a second opinion examination. In a report dated August 24, 2021, Dr. Jaffe reviewed appellant’s history of injury and provided detailed findings on examination. He diagnosed lumbar sprain, neck sprain, and bilateral rotator cuff tendinitis. Dr. Jaffe opined that appellant could perform modified employment and advised that she was “demotivated to return to work and there is concern for malingering.” He recommended “focused treatment and care for the injuries” by an orthopedic specialist, asserting that her treating physician was “fostering and prolonging the disability.” In a Form OWCP-5c of even date, Dr. Jaffe found that appellant could work eight hours per day with restrictions on walking and standing for four hours per day, bending/stooping for two hours per day, pushing, pulling, and lifting up to 20 pounds for two hours per day, squatting and kneeling up to one hour per day, and performing no climbing.

In an October 14, 2021 Form OWCP-5c, Dr. Humphrey diagnosed shoulder bursitis, carpal tunnel syndrome, cervical sprain, sciatic and indicated that appellant was disabled from work.

On February 1, 2022 OWCP referred appellant to a vocational rehabilitation counselor for vocational rehabilitation. The vocational rehabilitation counselor submitted progress reports throughout 2022. OWCP approved a training plan with the goal of appellant obtaining a position as an order clerk, medical secretary, or customer service clerk.

In an attending physician’s report (Form CA-20) dated April 12, 2023, Dr. Humphrey diagnosed cervical and lumbar sprains, right shoulder sprain, sciatica, coccygeal disorder, and a coccyx bone break. He checked a box marked “Yes” that the condition was caused or aggravated by employment and indicated that appellant was disabled from work.

2
On May 9, 2023 OWCP referred appellant to Dr. Jaffe for a second opinion examination.

On June 13, 2023 OWCP notified appellant that the vocational rehabilitation counselor indicated that she had refused to participate in rehabilitation efforts. It afforded her 30 days to make a good faith effort to participate with vocational rehabilitation or to submit additional evidence or argument substantiating that she was unable to participate. OWCP informed appellant that if she refused to cooperate without good cause, her compensation would be reduced based on what would have been her wage-earning capacity had she completed her training program and cooperated with vocational rehabilitation.

In a report dated June 27, 2023, Dr. Jaffe provided appellant’s history of injury and his review of the medical evidence, including x-rays obtained in December 2020. He noted that appellant related that she had been diagnosed with a coccygeal fracture. Dr. Jaffe diagnosed lumbar sprain, neck sprain, right rotator cuff tendinitis, and tendinitis of the left rotator cuff. He found disparity between the objective and subjective findings consistent with symptom magnification, noting that diagnostic studies were normal. Dr. Jaffe concluded that appellant’s cervical sprain, bilateral shoulder sprain, and lumbar sprain had resolved and there were no indications of other injuries based on the diagnostic studies. He opined that she could perform sedentary or light duty and recommended an orthopedic evaluation to determine if other injuries created disability or required medical treatment. In a Form OWCP-5c of even date, Dr. Jaffe found that appellant could work eight hours per day with restrictions of walking and standing for four hours per day, reaching above the shoulder for two hours per day, pushing, pulling, and lifting 10 to 20 pounds for two to four hours per day, squatting two hours per day, kneeling one hour per day, and performing no climbing.

On July 13, 2023 the vocational rehabilitation counselor advised OWCP that appellant had not registered for courses as instructed. On July 20, 2023 OWCP closed vocational rehabilitation services.

By decision dated July 28, 2023, OWCP reduced appellant’s compensation, pursuant to 5 U.S.C. §§ 8104 and 8113(b), because she failed, without good cause, to undergo vocational rehabilitation as directed. It determined that had she successfully completed the approved vocational rehabilitation program, she would have been capable to perform the position of order clerk. OWCP applied the principles set forth in Albert C. Shadrick 4 to calculate appellant’s loss of wage-earning capacity and reduced her compensation effective that date.

Subsequently, OWCP received a January 10, 2023 x-ray of appellant’s sacrum and coccyx that showed a stable appearance of the pelvis when compared with studies obtained on October 12, 2021 and no acute abnormalities. It noted no visible fracture, but “slight diastases of intersegmental levels at the coccyx, unchanged from previous study, possibly related to older or more remote injury.” X-rays of the cervical spine of even date showed anterior osteophytes at C3- 4 consistent with a prior study and mild stable cervical spondylosis.

In progress reports dated May 23 through June 22, 2023, Dr. Humphrey provided findings on examination and diagnoses that included sprain of the ligaments of the lumbar spine and pelvis,

4
Albert C. Shadrick, 5 ECAB 376 (1953); codified at 20 C.F.R. § 10.403.

3 right sciatic, carpal tunnel syndrome, cervical spondylosis, major depressive disorder, and coccyx pain/sacrococcygeal disorders, not otherwise classified.

In an unsigned letter dated August 9, 2023 and received by OWCP on July 28, 2024, appellant related that she had participated in vocational rehabilitation until her physician “advised against any physical or sedentary work due to [her] fractured and displaced coccyx bone. ”

In a report dated August 2023, Dr. Humphrey challenged Dr. Jaffe’s finding of symptom magnification and advised that the vocational rehabilitation program had failed to take into account her coccyx/sacrum findings from 2023 which prevented her from prolonged sitting. He opined that appellant should continue to receive compensation for total disability as she had continued “disabling conditions and continuous pain due to those injuries. ”

In an August 2, 2023 progress report, Dr. Humphrey diagnosed cervical spondylosis without myelopathy or radiculopathy, sacrococcygeal disorders with an onset of May 3, 2022, lumbar sprain, major depressive disorder, hypothyroidism and morbid obesity.

On August 22, 2023 appellant submitted an unsigned and undated appeal request form indicating that she was requesting reconsideration. The form indicated that a reconsideration request must be signed and dated and received by OWCP within one year of the decision.

In a letter dated August 24, 2023, OWCP advised appellant that it had received the August 22, 2023 reconsideration request, which was unsigned and undated. It notified her that it would take no further action on the letter and that if she desired reconsideration of her case, she should make the request in writing within one year of the decision that she wanted OWCP to reconsider.

On August 19, 2024 appellant requested reconsideration.

By decision dated August 30, 2024, OWCP denied appellant’s request for reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

LEGAL PRECEDENT

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further merit review.5 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. 6 Timeliness is determined by the document receipt date (i.e.,

5
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). 6 20 C.F.R. § 10.607(a).

4 the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).7 Imposition of this one-year filing limitation does not constitute an abuse of discretion. 8

When a request for reconsideration is untimely, OWCP undertakes a limited review to determine whether the request demonstrates clear evidence that OWCP’s most recent merit decision was in error. 9 OWCP’s procedures provide that it will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of OWCP.10 In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior evidence of record. 11

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the issue which was decided by OWCP. 12 The evidence must be positive, precise, and explicit and must manifest on its face that OWCP committed an error. Evidence which 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 merely to 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.

OWCP’s procedures note that the term clear evidence of error is intended to represent a difficult standard. The claimant must present evidence which on its face demonstrates that OWCP made an error (for example, proof that a schedule award was miscalculated). 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 development, is not clear evidence of error.13 The Board makes an independent determination of whether a claimant has demonstrated clear evidence of error on the part of OWCP. 14

7
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020).
8
W.B., Docket No. 23-0473 (issued August 29, 2023); G.G., Docket No. 18-1072 (issued January 7, 2019); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 9 See 20 C.F.R. § 10.607(b); R.C., Docket No. 21-0617 (issued August 25, 2023); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB 499 (1990). 10 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 7 at Chapter 2.1602.5 (September 2020). 11 S.D., Docket No. 23-0626 (issued August 24, 2023); J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G.
Burns, 57 ECAB 657 (2006).
12
J.M., Docket No. 22-0630 (issued February 10, 2023); S.C., Docket No. 18-0126 (issued May 14, 2016).
13
J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 7 at Chapter 2.1602.5(a) (September 2020).
14
L.J., Docket No. 23-0282 (issued May 26, 2023); D.S., Docket No. 17-0407 (issued May 24, 2017).

5
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 regulations15 and procedures16 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. 17 The most recent merit decision was OWCP’s July 28, 2023 decision. As appellant’s August 19, 2024 request for reconsideration was received more than one year after the July 28, 2023 merit decision, the Board finds that it was untimely filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in its July 28, 2023 merit decision.18

On reconsideration, appellant submitted an August 2023 report, wherein Dr. Humphrey disagreed with Dr. Jaffe’s finding of symptom magnification. Dr. Humphrey found that appellant was unable to perform prolonged standing due to her coccyx/sacrum, as demonstrated by objective findings. He opined that she was totally disabled from work. Appellant also submitted January 10, 2023 x-rays of her sacrum and coccyx showing no acute abnormalities but slight diastases of intersegmental levels at the coccyx and an x-ray of her cervical spine. She further submitted progress reports dated May 23 through August 2, 2023 from Dr. Humphrey, who provided findings on examination and diagnoses. The term clear evidence of error is intended to represent a difficult standard.19 It is not enough merely to show that the evidence could be construed so as to produce a contrary conclusion.20 Even 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 development, is not clear evidence of error. 21 This evidence is therefore insufficient to demonstrate clear evidence of error.

As the evidence submitted on reconsideration is insufficient to raise a substantial question concerning the correctness of OWCP’s July 28, 2023 merit decision, the Board finds that appellant’s request for reconsideration fails to demonstrate clear evidence of error.

15
20 C.F.R. § 10.607(a); see L.T., Docket No. 21-0844 (issued April 21, 2023); J.W., Docket No. 18-0703 (issued November 14, 2018); Alberta Dukes, 56 ECAB 247 (2005). 16 Supra note 7 at Chapter 2.1602.4 (February 2016); Veletta C. Coleman, 48 ECAB 367, 370 (1997).
17
20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).
18
Id. at § 10.607(b); see W.B., supra note 8; M.W., Docket No. 17-0892 (issued May 21, 2018).
19
See supra note 7 at Chapter 2.1602.5a (September 2020); see also E.R., Docket No. 24-0681 (issued July 29, 2024); see also K.W., Docket No. 19-1808 (issued April 2, 2020); J.S., supra note 13. 20 Id.
21
Id.

6
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.

ORDER

IT IS HEREBY ORDERED THAT the August 30, 2024 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 26, 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

7