U. S. DEPARTMENT OF LABOR
Employees’ Compensation Appeals Board
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In the Matter of DEMPSEY MONTGOMERY and U.S. POSTAL SERVICE,
LAKEWOOD POST OFFICE, Atlanta, GA
Docket No. 00-1264; Submitted on the Record;
Issued April 2, 2001
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DECISION and ORDER
Before WILLIE T.C. THOMAS, MICHAEL E. GROOM,
PRISCILLA ANNE SCHWAB
The issue is whether the Office of Workers’ Compensation Programs properly determined that appellant’s request for reconsideration was untimely filed and did not demonstrate clear evidence of error.
The only Office decision before the Board on this appeal is the January 11, 2000 decision denying appellant’s request for reconsideration. Since more than one year has elapsed between the date of the Office’s most recent merit decision on September 15, 1997, denying appellant’s recurrence of disability claim, and the filing of appellant’s appeal on October 20, 1999, the Board lacks jurisdiction to review the merits of appellant’s claim.[1]
The Board finds that the Office acted within its discretion in denying appellant’s request for reconsideration as untimely filed and lacking clear evidence of error.
The Office, through its regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, the Office has stated that it 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.[2] 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).[3]
The Office properly found, by its January 11, 2000 decision, that the one-year time limit for filing a request for reconsideration of the Office’s September 15, 1997 decision expired on September 15, 1998, and that the request for reconsideration dated October 13, 1999 was untimely.
In those cases where a request for reconsideration is not timely filed, the Board has held however that 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.[4] Office procedures state that the Office 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 application for review shows “clear evidence of error” on the part of the Office.[5]
To establish clear evidence of error, a claimant must submit evidence relevant to the issue which was decided by the Office.[6] The evidence must be positive, precise and explicit and must be manifest on its face that the Office committed an error.[7] Evidence which does not raise a substantial question concerning the correctness of the Office’s decision is insufficient to establish clear evidence of error.[8] It is not enough merely to show that the evidence could be construed so as to produce a contrary conclusion.[9] 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.[10]
To show clear evidence of error, the evidence submitted must not only be of sufficient probative value to create a conflict in medical opinion or establish a clear procedural error, but 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 decision.[11] The Board makes 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.[12]
In support of her October 13, 1999 request for reconsideration, appellant submitted copies of the Office’s August 21, 1996 decision, the memorandum to the Director and the letter decision to appellant. This evidence is duplicative of documents already in the record and does not constitute clear evidence of error. Appellant did not submit any new evidence which raised a substantial question as to the correctness of the Office’s September 15, 1997 decision denying appellant’s recurrence of disability claim.
As appellant’s request for reconsideration was untimely filed and did not establish clear evidence of error, the Office properly denied it.
The January 11, 2000 decision of the Office of Workers’ Compensation Programs is hereby affirmed.
Dated, Washington, DC
April 2, 2001
Willie T.C. Thomas
Member
Michael E. Groom
Alternate Member
Priscilla Anne Schwab
Alternate Member