United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.F., Appellant 

and 

DEPARTMENT OF DEFENSE, EDUCATION 

ACTIVITY, Alexandria, VA, Employer 

__________________________________________ 

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Docket No. 15-608 

Issued: May 13, 2015 

Appearances: Case Submitted on the Record

Martin Kaplan, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 27, 2015 appellant, through counsel, filed a timely appeal from a January 23, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant 

to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over this nonmerit decision. The last merit decision of record for the 

present claim was dated August 20, 1998. Because more than 180 days have elapsed between 

the last merit decision and the filing of this appeal on January 27, 2015, the Board lacks 

jurisdiction to review the merits of this claim.2

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review of the merits of his claim on the grounds that his request was untimely filed and failed to 

demonstrate clear evidence of error. 

 1

 5 U.S.C. §§ 8101-8193. 

2 See 20 C.F.R. §§ 501.2(c) and 501.3. 
2

FACTUAL HISTORY 

OWCP accepted that on March 19, 1990 appellant, then a 34-year-old tractor operator, 

sustained a traumatic injury in the form of a left hand fracture when his hand became caught in a 

tractor steering wheel at work. It later accepted that on September 10, 1997 he sustained a 

traumatic injury in the form of right wrist and right foot sprains due to a fall at work. The files 

for the 1990 and 1997 injuries were later combined under the file for the 1997 injury. 

On April 13, 1998 appellant filed a recurrence of disability claim (Form CA-2a) with 

OWCP. The form mentioned that the recurrence of disability was alleged as occurring due to 

both accepted work injuries. 

In an August 20, 1998 decision, OWCP denied appellant’s claim for a recurrence of 

disability due to his 1990 and 1997 work injuries. It discussed medical evidence from Dr. Noel 

Rogers, an attending Board-certified orthopedic surgeon, but noted that it did not establish 

appellant’s recurrence of disability claim. 

In a September 18, 2014 letter received on December 2, 2014, counsel requested 

reconsideration of OWCP’s August 20, 1998 decision “denying a claim for recurrence” on behalf 

of appellant.3 He argued that the August 20, 1998 decision was erroneous on its face because it 

was not decided in accordance with OWCP procedure. Counsel stated: 

“The claim for compensation was an initial claim and was incorrectly treated as a 

recurrence. As this was his first claim for compensation, you must vacate the 

decision and develop the claim in accordance with FECA PM [procedure 

manual], [Chapter] 2.901.05. 

“The appropriate section of the FECA PM is [Chapter] 2.1400.7 which deals with 

recurrences when an employee has been terminated for cause. [Chapter] 

2.1400.7(a)(4) specifically states that for an employee to be ineligible for 

compensation, ‘Most importantly, there was no evidence in the record that the 

claimant was unable to perform the light[-]duty position....’ 

“The [August 20, 1998] denial is based on the fact that [appellant’s] termination 

was not due to the accepted conditions. The only consideration in determining 

compensability is whether [appellant] was physically capable of returning to his 

work to his light[-]duty position.”4

In a January 23, 2015 decision, OWCP denied appellant’s request for further review of 

the merits of his claim as his request was untimely filed and failed to demonstrate clear evidence 

of error. It indicated that his request for reconsideration of its August 20, 1998 decision was 

untimely because it was received on December 2, 2014, a period more than one year after the 

 3

 Counsel refers to an August 19, 1998 decision of OWCP, but he appears to have inadvertently misidentified 

OWCP’s August 20, 1998 decision as being dated August 19, 1998. 

4

 In the remainder of the letter, counsel mentioned medical evidence, including evidence of Dr. Rogers, which he 

believed would establish that appellant sustained work-related disability. 
3

issuance of the August 20, 1998 decision. Regarding why counsel’s September 18, 2014 letter 

did not show clear evidence of error in OWCP’s August 20, 1998 decision, OWCP found: 

“[Counsel] states that the August 20, 1998 recurrence denial was erroneous 

because [OWCP] did not develop the initial claim in accordance with procedures. 

However, you submitted a CA-2a form, Notice of Recurrence on April 13, 1998 

and it was properly developed by letter dated May 6, 1998. Since your cases were 

doubled, the August 20, 1998 recurrence denial addressed both of your injuries 

from 1990 and 1997. It was noted you did not stop work due to your physical 

inability to perform your assigned duties nor was there evidence you stopped due 

to your work injuries.” 

LEGAL PRECEDENT 

 To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a 

claimant must file his or her application for review within one year of the date of that decision.5

 

The Board has found that the imposition of the one-year limitation does not constitute an abuse 

of the discretionary authority granted OWCP under section 8128(a) of FECA.6

OWCP, however, may not deny an application for review solely on the grounds that the 

application was not timely filed. When an application for review is not timely filed, OWCP must 

nevertheless undertake a limited review to determine whether the application establishes “clear 

evidence of error.”7

 OWCP regulations and procedures provide that OWCP will reopen a 

claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20 

C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of error” on 

the part of OWCP.8

 To establish clear evidence of error, a claimant must submit evidence relevant to the issue 

which was decided by OWCP.9

 The evidence must be positive, precise, and explicit and must 

manifest on its face that OWCP committed an error.10 Evidence which does not raise a 

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

 5

 20 C.F.R. § 10.607(a). 

6

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 

7 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 

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

OWCP procedure further provides, “The term ‘clear evidence of error’ is intended to represent a difficult standard. 

The claimant must present evidence which on its face shows that OWCP made a mistake. For example, a claimant 

provides proof that a schedule award was miscalculated, such as a marriage certificate showing that the claimant had 

a dependent but the award was not paid at the augmented rate. 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.” 

9 See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992). 

10 20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991). 
4

clear evidence of error.11 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.12 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.13

ANALYSIS 

 In its January 23, 2015 decision, OWCP properly determined that appellant filed an 

untimely request for reconsideration. Appellant’s reconsideration request was filed on 

December 2, 2014, many years after OWCP’s August 20, 1998 decision, and he, therefore, must 

demonstrate clear evidence of error on the part of OWCP in issuing this decision. 

Appellant has not demonstrated clear evidence of error on the part of OWCP in issuing 

its August 20, 1998 decision. He did not submit the type of positive, precise, and explicit 

evidence which manifests on its face that OWCP committed an error. 

Counsel, on behalf of appellant, argued that the August 20, 1998 decision was improper 

because it treated appellant’s claim in 1998 as a claim for recurrence of disability rather than as 

an “initial claim.” This argument would not tend to show that OWCP committed error as 

appellant actually filed a claim for recurrence of disability in 1998 and counsel’s argument does 

not tend to show that OWCP improperly developed appellant’s claim. In his letter, counsel 

mentioned medical evidence, including evidence of Dr. Rogers, an attending Board-certified 

orthopedic surgeon, which he believed would establish work-related disability. Counsel’s 

argument does not establish clear evidence of error as it does not clearly show that OWCP 

improperly evaluated the medical evidence, including reports of Dr. Rogers, in its August 20, 

1998 decision. 

For these reasons, the evidence submitted by appellant does not raise a substantial 

question concerning the correctness of OWCP’s August 20, 1998 decision and OWCP properly 

determined that appellant did not show clear evidence of error in that decision. 

CONCLUSION 

 The Board finds that OWCP properly refused to reopen appellant’s case for further 

review of the merits of his claim on the grounds that his request was untimely filed and failed to 

demonstrate clear evidence of error. 

 11 See Jesus D. Sanchez, 41 ECAB 964, 968 (1990). 

12 See Leona N. Travis, supra note 10. 

13 See Nelson T. Thompson, 43 ECAB 919, 922 (1992). 
5

ORDER 

 IT IS HEREBY ORDERED THAT the January 23, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 13, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board