United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

H.L., Appellant 

and 

DEPARTMENT OF AGRICULTURE, 

FOOD SAFETY & INSPECTION SERVICE, 

Geneseo, IL, Employer 

__________________________________________ 

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Docket No. 13-2077 

Issued: March 20, 2014 

Appearances: Case Submitted on the Record

Steven C. Ames, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 11, 2013 appellant, through her attorney, filed a timely appeal from the 

July 15, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), 

which denied her reconsideration request. Pursuant to the Federal Employees’ Compensation 

Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this 

nonmerit decision. 

ISSUE 

The issue is whether OWCP properly denied appellant’s June 18, 2013 reconsideration 

request pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On November 10, 2010 appellant, a 59-year-old meat inspector, filed a traumatic injury 

claim alleging that she sustained an injury on her way to work that morning after falling in a 

parking area outside of her workplace. 

In a decision dated February 7, 2011, OWCP denied appellant’s claim on the grounds that 

her injury did not arise in the performance of duty. Appellant parked her vehicle in a 

nondesignated parking area not owned, controlled or managed by the employing establishment. 

The employing establishment did not require her to park there. There was an officially 

designated parking area available to appellant that was well maintained and well lighted and 

monitored for unauthorized vehicles. Appellant was not required to pay for parking in the 

officially designated lot. Further, the employing establishment had issued a letter of warning to 

her for parking in the nondesignated area. 

OWCP’s hearing representative affirmed the denial of appellant’s claim on 

September 6, 2011. The hearing representative described the many factors that help determine 

whether a parking lot used by employees may be considered a part of the employing 

establishment’s premises. After a review of numerous decisions, the hearing representative 

found that the evidence did not support that the parking lot was part of the premises. The 

employing establishment did not own or lease the lot, did not maintain the lot in any manner and 

did not provide the badges or parking pass necessary to use the lot. The lot was not for the 

exclusive use of employing establishment employees. The employing establishment did not 

monitor the lot and had no control over who was allowed to park in that area. The hearing 

representative found that the fact that it allowed appellant to park in that area and was not 

charged for doing so was insufficient to make the parking area a part of the premises. 

Appellant’s fall on November 10, 2010 thus constituted an off-premises injury while going to 

work, which was not compensable but rather arose out of ordinary nonemployment hazards of 

the journey itself shared by all travelers. 

Appellant requested reconsideration on March 15, 2012, which was received by OWCP 

on March 22, 2012. She argued that OWCP’s hearing representative erred in finding that she 

was not on the premises at the time of her fall. Appellant argued that the employing 

establishment assigned her to the parking lot; that other parking was unavailable due to her 

medical accommodation expressly issued by the employing establishment; that the parking lot 

was in sufficient proximity and relationship to the employing establishment; and that her injury 

arose out of an extraordinary employment hazard. Thus, she argued, the decision was 

substantially against the manifest weight of the evidence. 

On June 20, 2012 OWCP reviewed the merits of appellant’s case and denied modification 

of its prior decision. 

Appellant requested reconsideration on June 18, 2013. OWCP received this request on 

June 21, 2013. Appellant submitted several medical notes and a notice of personnel action 

showing off-work hours. She also submitted several cases from the Fifth Circuit. Appellant 

argued that OWCP failed to consider and give proper weight to the evidence that she was in a 

“zone of special danger” incidental to her employment and also failed to take into account the 
3

totality of the circumstances. She argued that the special hazard included the fact that she was 

unable to use the other parking lot and was ordered by her supervisor to use the lot in question. 

Appellant then offered a restatement of her previous request for reconsideration. 

In a decision dated July 15, 2013, OWCP denied appellant’s June 18, 2013 

reconsideration request on the grounds that her letter neither raised substantive legal question nor 

included new and relevant evidence. 

On appeal, counsel argues that the June 18, 2013 reconsideration request presented a new 

and relevant legal issue, namely, that OWCP failed to consider the totality of the circumstances 

and the existence of a zone of special danger. 

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation: 

“The Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. The Secretary, in 

accordance with the facts found on review may -- 

 (1) end, decrease or increase the compensation awarded; or 

 (2) award compensation previously refused or discontinued.”2

OWCP, through regulations, has imposed limitations on the exercise of its discretionary 

authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that 

an application for reconsideration must be received by OWCP within one year of the date of the 

OWCP decision for which review is sought.3

OWCP should review the file to determine whether the application for reconsideration 

was received within one year of a merit decision. “Timeliness is determined by the document 

receipt date of the reconsideration request [the ‘received date’ in the Integrated Federal 

Employees’ Compensation System (iFECS)].” If the request for reconsideration has a document 

received date greater than one year, the request must be considered untimely.4

OWCP will consider an untimely application only if the application demonstrates clear 

evidence of error on the part of it in its most recent merit decision. The application must 

establish, on its face, that such decision was erroneous.5

 2 Id. at § 8128(a). 

3

 20 C.F.R. § 10.607(a). 

4

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4.b (October 2011). 

5

 20 C.F.R. § 10.607. 
4

The term “clear evidence of error” is intended to represent a difficult standard.6

 If clear 

evidence of error has not been presented, OWCP should deny the application by letter decision, 

which includes a brief evaluation of the evidence submitted and a finding made that clear 

evidence of error has not been shown.7

ANALYSIS 

The most recent decision reviewing the merits of appellant’s case was OWCP’s 

June 20, 2012 decision. As the appeal rights attached to that decision explained, she had one 

calendar year from the date of that decision or until June 20, 2013, to ensure receipt by OWCP of 

any reconsideration request. 

OWCP received appellant’s June 18, 2013 reconsideration request on June 21, 2013. As 

the document received date was beyond one year, appellant’s request must be considered 

untimely. The proper standard of review for an untimely reconsideration request is the “clear 

evidence of error” standard. 

In denying appellant’s reconsideration request, OWCP applied the wrong standard of 

review. Further, its generic decision failed to discuss or evaluate the particular evidence and 

argument appellant presented to support her request.8

 Accordingly, the Board will set aside 

OWCP’s July 15, 2013 decision and remand the case for a proper exercise of its discretionary 

authority under 5 U.S.C. § 8128(a). 

If the June 18, 2013 reconsideration request presented clear evidence of error, OWCP 

shall review the merits of appellant’s case and issue an appropriate decision on her claim for 

compensation benefits. If the request did not present clear evidence of error, it will deny the 

application by letter decision, which must include an evaluation of the evidence and argument 

presented. 

CONCLUSION 

The Board finds that this case is not in posture for decision. OWCP not only applied the 

wrong standard of review, it failed to evaluate the evidence and argument appellant presented to 

support her request. 

 6

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5.a (October 2011). 

7 Id. at Chapter 2.1602.5.b. 

8 See Robert M. Pace, 46 ECAB 551 (1995) (in determining whether clear evidence of error is shown, a brief 

evaluation of the evidence should be included in the decision so that any subsequent reviewer will be able to address 

the issue of discretion); 20 C.F.R. § 10.126 (an OWCP decision shall contain findings of fact and a statement of 

reasons); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7.b (October 2011) 

(if the evidence submitted to support an application for reconsideration is not sufficient to require a merit review, 

OWCP should issue a decision that discusses the evidence submitted or lack thereof, and explicitly states the basis 

for the finding of insufficiency). 
5

ORDER 

IT IS HEREBY ORDERED THAT the July 15, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further action. 

Issued: March 20, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board