United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.M., Appellant 

and 

TENNESSEE VALLEY AUTHORITY, 

PARADISE STEAM PLANT, Drakesboro, KY, 

Employer 

__________________________________________ 

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Docket No. 15-471 

Issued: April 27, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On December 29, 2014 appellant filed a timely appeal from an October 9, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit 

decision was that of the Board dated November 5, 2007. Absent further merit review of the issue 

by OWCP, the issue is res judicata and is not subject to further review.1

 The Board lacks 

jurisdiction to review the merits of this claim pursuant to the Federal Employees’ Compensation 

Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for reconsideration as it 

was not timely filed and failed to demonstrate clear evidence of error. 

 1 See Clinton E. Anthony, Jr., 49 ECAB 476 (1998). A decision of the Board is final upon the expiration of 30 

days from the date of the decision. 20 C.F.R. § 501.6(d). 

2

 5 U.S.C. § 8101 et seq.
2

On appeal, appellant contends that a mistake was made regarding his fraud conviction as 

he does not consider his life-long hobby to be a business activity that is work related because no 

revenue was generated. He contends that he continues to be disabled from his accepted 

employment injury and that he is unable to support himself with his Social Security 

Administration benefits. Appellant states that his trade as a journeyman iron worker would have 

provided him an excellent pension had he not been disabled by his employment injury. 

FACTUAL HISTORY 

This case has previously been before the Board. In a November 30, 2006 decision,3

 the 

Board affirmed a February 10, 2006 OWCP decision which terminated appellant’s wage-loss 

compensation and medical benefits effective February 19, 2005 because he was found guilty of 

violating 18 U.S.C. § 1920, making false statements or reports to obtain federal employees’ 

compensation. In a November 5, 2007 decision,4

 the Board affirmed a January 23, 2007 OWCP 

decision which found that appellant had forfeited his right to compensation for the period 

April 30, 1999 to April 9, 2002 due to a conviction for fraud in obtaining compensation benefits 

under 18 U.S.C. § 1920. This resulted in an overpayment of compensation benefits in the 

amount of $138,120.54 for which he was at fault and, therefore, ineligible for waiver of recovery 

of the overpayment. The finding of fact and conclusions of law from the prior decision are 

hereby incorporated by reference. The relevant facts are set forth below.5

By letter dated July 27, 2014 and received by OWCP on September 10, 2014, appellant 

requested reconsideration of OWCP’s forfeiture and overpayment decision.6 He contended that 

to be disabled by his accepted employment injury and that his social security income was not 

enough to take care of his basic needs. Appellant’s Social Security Administration benefits were 

less as he had been unable to pay into the system since he became disabled on August 1, 1967. 

He contended that the business he was affiliated with while receiving compensation was a hobby 

involving the purchase of antique automobiles. The business provided a job to his oldest son 

who suffered from mental illness and chemical dependency. Appellant was informed by a public 

defender that, since his case involved a misdemeanor and not a felony, he should have been only 

fined and the fine should have been deducted from his workers’ compensation payment every 

month instead of being revoked. 

In a September 17, 2014 letter, appellant stated that he did not draw any salary from a 

restaurant business because he was not able to be there to manage it. As a result of his inability 

to manage the business and loss of revenue, he closed the business. 

Medical records dated April 11, 2007 to March 26, 2013 addressed, among other things, 

appellant’s back conditions and treatment. 

 3

 Docket No. 06-1194 (issued November 30, 2006). 

4

 Docket No. 07-1365 (issued November 5, 2007). 

5

 OWCP accepted that on August 1, 1967 appellant, then a 24-year-old iron worker, sustained a lumbar strain 

when he slipped on a bank at work. 

6

 The Board notes that appellant had repaid the overpayment in full as of December 10, 2012. 
3

In an October 9, 2014 decision, OWCP denied appellant’s request for reconsideration 

without a merit review as it was not timely filed and failed to present clear evidence of error. 

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.7

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

discretionary authority under section 8128(a).8

 One such limitation provides that an application 

for reconsideration must be submitted within one year of the date of OWCP’s decision for which 

review is sought.9

 The Board has found that the imposition of this one-year time limitation does 

not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).10

Section 10.607(b) states that OWCP will consider an untimely application for 

reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit 

decision. The reconsideration request must establish that OWCP’s decision was, on its face, 

erroneous.

11

To establish 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.13 Evidence that does not raise a 

substantial question concerning the correctness of OWCP’s decision is insufficient to establish 

clear evidence of error.14 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.15 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.16

To establish 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 OWCP’s decision.17 The 

 7 See Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

8 See Annette Louise, 54 ECAB 783, 789-90 (2003). 

9

 20 C.F.R. § 10.607(a). 

10 See Jesus D. Sanchez, supra note 7; F.R., Docket No. 09-575 (issued January 4, 2010). 

11 20 C.F.R. § 10.607(b). 

12 See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 1157-58 (1992). 

13 See Fidel E. Perez, 48 ECAB 663, 665 (1997); M.L., Docket No. 09-956 (issued April 15, 2010). 

14 See Richard L. Rhodes, 50 ECAB 259, 264 (1999). 

15 See Leona N. Travis, 43 ECAB 227, 241 (1991). 

16 See Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992). 

17 See Veletta C. Coleman, 48 ECAB 367, 370 (1997). 
4

Board makes an independent determination of whether a claimant has submitted clear evidence 

of error on the part of OWCP such that OWCP abused its discretion in denying merit review in 

the face of such evidence.18

ANALYSIS 

The Board finds that appellant’s request for reconsideration was untimely. The most 

recent merit decision in this case was issued on November 5, 2007. Appellant’s request for 

reconsideration was received by OWCP on September 10, 2014. Because more than one year 

elapsed from the November 5, 2007 merit decision to the filing of his request on September 10, 

2014, the Board finds that his request was filed untimely. 

The Board also finds that appellant’s untimely request failed to demonstrate clear 

evidence of error. The November 5, 2007 merit decision affirmed OWCP’s January 23, 2007 

finding that appellant forfeited his right to compensation for the period April 30, 1999 to April 9, 

2002 due to a conviction for fraud in obtaining compensation benefits under 18 U.S.C. § 1920. 

This resulted in an overpayment of benefits in the amount of $138,120.54 for which he was at 

fault and, therefore, ineligible for waiver of recovery of the overpayment. In his untimely 

request for reconsideration, appellant contended that he continued to be disabled by his accepted 

employment injury and that his Social Security Administration benefits were less as he had been 

unable to pay into the system since he became disabled on August 1, 1967. He further contended 

that the business with which he was affiliated while receiving compensation benefits was a 

hobby, that OWCP was aware of this hobby. Appellant also contended that because his crime 

was only a misdemeanor he should have only been fined rather than forfeit all compensation on a 

monthly basis. His arguments pertaining to his continuing employment-related disability and 

resultant financial difficulties, the nature of his business and crime, and OWCP’s awareness 

about his business have been previously addressed and considered by OWCP and the Board in 

prior decisions and do not shift the weight of the evidence in his favor. 

The medical reports dated April 11, 2007 to March 26, 2013, which addressed appellant’s 

back conditions and medical treatment, are not relevant to the underlying issues in this case of 

forfeiture and overpayment.19

To establish clear evidence of error, it is not sufficient merely to show that the evidence 

could be construed so as to produce a contrary conclusion. The term clear evidence of error is 

intended to represent a difficult standard.20 None of the arguments or evidence submitted 

manifests on its face that OWCP committed an error in finding that appellant forfeited his right 

to compensation. Appellant has not otherwise submitted evidence of sufficient probative value 

to raise a substantial question as to the correctness of OWCP’s decision. Thus, the evidence is 

insufficient to establish clear evidence of error. 

 18 See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993). 

19 Howard Y. Miyashiro, 51 ECAB 253 (1999). 

20 See Dean D. Beets, supra note 12; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, 

Chapter 2.1602.5 (October 2011). 
5

On appeal, appellant contended that a mistake was made regarding his fraud conviction 

as he did not consider his business activity work related because no revenue was generated, and 

is a life-long hobby. He contended that he continued to be disabled from his accepted 

employment injury and that he was unable to support himself with his Social Security 

Administration benefits. Appellant stated that his trade as a journeyman iron worker would have 

provided him an excellent pension had he not been disabled by his employment injury. As 

discussed, his contentions have been previously addressed and considered by OWCP and the 

Board in prior decisions and, thus, are insufficient to shift the weight of the evidence in his favor 

and raise a substantial question as to the correctness of OWCP’s forfeiture and overpayment 

decision. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration as 

untimely filed and failing to demonstrate clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the October 9, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 27, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board