United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.D., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

U.S. COAST GUARD, Warwick, RI, Employer 

__________________________________________ 

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Docket No. 15-0865 

Issued: October 6, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 9, 2015 appellant filed a timely appeal from a September 29, 2014 nonmerit 

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

record was OWCP’s April 4, 2012 decision. Because more than 180 days elapsed between the 

last merit decision to the filing of this appeal, pursuant to the Federal Employees’ Compensation 

Act1

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

merits of the claim.2 

ISSUE 

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

review of the merits. 

 1

 5 U.S.C. § 8101 et seq. 

2

 An appeal of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the 

decision. 20 C.F.R. § 501.3(e). 
2

FACTUAL HISTORY 

This case has previously been before the Board. On January 14, 1992 appellant, then a 

49-year-old construction representative, sustained injuries to his neck and back when he slipped 

on a wet dock at work. He stopped work on January 16, 1992 and did not return. Effective 

August 9, 1992, he elected a disability retirement annuity from the Office of Personnel 

Management (OPM). OWCP accepted the claim for cervical and lumbosacral sprains and paid 

compensation benefits until the election of OPM benefits. On February 27, 2006 he had filed a 

Form CA-7 claim for disability benefits retroactive to August 9, 2002. On January 5, 2007 

appellant elected to receive wage-loss compensation from OWCP retroactive to August 9, 1992, 

in lieu of OPM benefits. He asserted that his disability was due to his accepted condition. On 

June 1, 2007 OWCP denied his claim for disability compensation due to insufficient medical 

evidence. After a reconsideration request, OWCP conducted a merit review but denied the claim 

on September 27, 2007. An appeal was filed to the Board. On May 13, 2008 the Board issued 

an order remanding the case to OWCP for proper assemblage of the record and a de novo

decision as the case record was missing materials from August 4, 1995 through 

December 14, 2004.3 After determining no records were missing, OWCP reissued its decision 

on December 1, 2008 denying wage-loss compensation beginning August 9, 1992. 

By decision dated October 22, 2009, the Board affirmed the December 1, 2008 decision, 

finding that appellant had not met his burden of proof to establish wage-loss compensation 

beginning August 9, 1992.4 Appellant requested reconsideration. In decisions dated January 14, 

2011 and April 4, 2012, OWCP reviewed the case on its merits and denied modification of the 

wage-loss compensation determination. On October 26, 2012 appellant appealed the April 4, 

2012 decision to the Board. On December 20, 2012 the Board issued an order dismissing appeal 

as it was untimely filed and the Board lacked jurisdiction to review the appeal.5 

On March 29, 2013 appellant requested reconsideration of the April 4, 2012 decision. 

The request was postmarked on March 29, 2013 and received by OWCP on April 5, 2013. By 

decision dated May 8, 2013, OWCP denied appellant’s request as untimely filed and failing to 

establish clear evidence of error. Appellant disagreed and again requested reconsideration. He 

continued to request that OWCP reconsider his claim. On August 14, 2013 OWCP denied 

appellant’s request for reconsideration as it was untimely filed and failed to establish clear 

evidence of error. Appellant appealed to the Board. By decision dated June 11, 2014, the Board 

affirmed the May 8 and August 14, 2013 OWCP decisions.6

 The facts of the case as set forth in 

the Board’s prior decisions are incorporated herein by reference. 

By letter dated June 18, 2014 received by OWCP on June 26, 2014, appellant requested 

reconsideration. Evidence received in support of this reconsideration request included a May 22, 

2013 letter from the U.S. Postal Service apologizing for delayed delivery of his reconsideration 

 3

 Docket No. 08-278 (issued May 13, 2008). 

4

 Docket No. 09-519 (issued October 22, 2009). 

5

 Docket No. 13-169 (issued December 20, 2012). 

6

 Docket No. 14-132 (issued June 11, 2014). 
3

request mailed on March 29, 2013, and confirming delivery of that letter to an OWCP mailroom 

in London, Kentucky, on April 4, 2013. Also submitted were a printout showing that appellant’s 

certified mail item was delivered on April 4, 2013 in London, Kentucky, and a copy of 

correspondence between appellant and the office of Senator Elizabeth Warren. 

By decision dated September 29, 2014, OWCP denied appellant’s request for 

reconsideration. It found that, while he had established that the March 29, 2013 request for 

reconsideration was delivered to OWCP mailroom on April 4, 2013, it was not received by 

OWCP’s district office until April 5, 2013, and was therefore untimely filed. OWCP further 

found that appellant did not submit any relevant and pertinent new evidence with his most recent 

reconsideration request that shows that OWCP erroneously applied or interpreted a specific point 

of law, or advances a relevant legal argument not previously considered. 

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.”7 

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 

OWCP’s decision for which review is sought.8 

OWCP procedures require a review of the file to determine whether the application for 

reconsideration was received within one year of a merit decision. The one-year period begins on 

the date of the original decision. However, a right to reconsideration within one year 

accompanies any subsequent merit decision on the issues. This includes any hearing or review 

of the written record decision, any denial of modification following a reconsideration, any merit 

decision by the Board, and any merit decision following action by the Board, but does not 

include prerecoupment hearing decisions.9

 Timeliness is determined by the document receipt 

date of the reconsideration request (the received date in the Integrated Federal Employees 

 7

 5 U.S.C. § 8128(a). 

8

 20 C.F.R. § 10.607(a). 

9

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4.b (October 2011). 
4

Compensation System (iFECS)). If the request for reconsideration has a document received date 

greater than one year, the request must be considered untimely.10 

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.11 

The term clear evidence of error is intended to represent a difficult standard.12 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.13 

ANALYSIS 

The most recent decision reviewing the merits of appellant’s case was OWCP’s April 4, 

2012 decision. As the appeal rights attached to that decision explained, appellant had one 

calendar year from the date of that decision or until April 4, 2013, to ensure receipt by OWCP of 

any reconsideration request. 

OWCP received appellant’s June 18, 2014 reconsideration request on June 26, 2014. As 

the received date was more than one year beyond April 4, 2012, 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 found the request untimely but did 

not review the request under the clear evidence of error standard. Rather it applied the standard 

of review for timely requests for reconsideration.14 As OWCP applied the wrong standard of 

review to the untimely request for reconsideration, the Board will set aside OWCP’s 

September 29, 2014 decision and remand the case for proper review under the clear evidence of 

error standard as required by regulations.15 

CONCLUSION 

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

improper standard of review. 

 10 Id. at Chapter 2.1602.4.b (October 2011). 

11 20 C.F.R. § 10.607. 

12 Supra note 10 at Chapter 2.1602.5.a (October 2011). 

13 Id. at Chapter 2.1602.5.b. 

14 Cf H.L., Docket No. 13-2077 (issued March 20, 2014) (the Board set aside and remanded the case on the 

grounds appellant’s request was untimely and its generic decision failed to discuss or evaluate the particular 

evidence and argument appellant presented to support her request). 

15 See 20 C.F.R. § 10.607(b). 
5

ORDER 

IT IS HEREBY ORDERED THAT the September 29, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further review under 

the clear evidence of error standard. 

Issued: October 6, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board