United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Memphis, TN, Employer 

__________________________________________ 

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Docket No. 14-70 

Issued: March 24, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 26, 20131 appellant filed a timely appeal of an April 3, 2013 decision of 

the Office of Workers’ Compensation Programs (OWCP), finding that her request for 

reconsideration was untimely and failed to show clear evidence of error. Pursuant to the Federal 

Employees’ Compensation Act2

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

jurisdiction over the April 3, 2013 decision. The Board does not have jurisdiction over a 

decision on the merits of the claim.3

 1

 The appeal was stamped as received by the Board on October 3, 2013. Pursuant to Board procedure, since using 

the date of receipt as the filing date would result in a loss of appeal rights, the date of postmark is considered the 

date of filing. 20 C.F.R. § 501.3(f)(1). The date of the postmark was September 26, 2013, which renders the appeal 

timely filed. 

2

 5 U.S.C. § 8101 et seq. 

3

 The last merit decision was an OWCP decision dated March 25, 1993. For OWCP decisions issued prior to 

November 19, 2008, a claimant had one year to file an appeal. See 20 C.F.R. § 501.3(d)(2). For final adverse 

OWCP decisions issued on or after November 19, 2008, a claimant has 180 days to file an appeal with the Board. 

20 C.F.R. § 501.3(e). 
2

ISSUE 

The issue is whether OWCP properly determined that appellant’s application for 

reconsideration was untimely and failed to show clear evidence of error. 

FACTUAL HISTORY 

This is the eleventh appeal in the case. OWCP terminated appellant’s compensation on 

the grounds that she refused an offer of suitable work in an April 17, 1992 decision and denied 

modification in a March 25, 1993 decision. In a decision dated October 1, 1998, the Board 

affirmed a January 12, 1996 OWCP decision finding that her reconsideration request was 

untimely and failed to show clear evidence of error.4 By decision dated January 23, 2003, the 

Board affirmed OWCP decisions dated April 26 and September 7, 2001 and April 11 and 

July 26, 2002 denying appellant’s requests for reconsideration as untimely and failing to 

establish clear evidence of error.5

 In the next appeal, the Board affirmed an August 8, 2003 

OWCP decision that found that her June 28, 2003 reconsideration request was untimely and 

failed to show clear evidence of error.6

 By decision dated November 23, 2004, the Board 

affirmed decisions dated April 30 and May 17, 2004, finding that appellant’s requests for 

reconsideration were untimely and failed to show clear evidence of error.7 In a decision dated 

December 27, 2007, the Board affirmed OWCP decisions dated May 10 and 29, 2007, finding 

that her applications for reconsideration were untimely and failed to show clear evidence of 

error.8 By decision dated January 6, 2009, the Board affirmed an April 4, 2008 OWCP decision 

again finding the request for reconsideration untimely and failing to show clear evidence of 

error.9 In a decision dated February 16, 2010, again the Board found appellant’s application for 

reconsideration was untimely and failed to show clear evidence of error.10 The next Board 

decision was dated February 8, 2011, where the Board found that a March 4, 2010 application 

for reconsideration was untimely and failed to show clear evidence of error.11 By decision dated 

December 6, 2011, the Board affirmed OWCP decisions dated March 1 and 29, 2011, again 

finding that the application was untimely and failed to show clear evidence of error.12 The last 

Board decision is dated October 12, 2012, and the Board affirmed a March 5, 2012 OWCP 

decision that held that appellant’s reconsideration request was untimely and failed to demonstrate 

 4

 Docket No. 92-2518 (issued October 1, 1998). 

5

 Docket No. 02-1814 (issued January 23, 2003). 

6

 Docket No. 03-2128 (issued October 30, 2003). 

7

 Docket No. 04-1429 (issued November 23, 2004). 

8

 Docket No. 07-1697 (issued December 27, 2007). 

9

 Docket No. 08-1420 (issued January 6, 2009). 

10 Docket No. 09-1497 (issued February 16, 2010). 

11 Docket No. 10-1335 (issued February 8, 2011). 

12 Docket No. 11-1261 (issued December 6, 2011). 
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clear evidence of error.13 The history of the case is contained in the Board’s prior decisions and 

is incorporated herein in reference. 

By letter dated March 14, 2013, appellant requested reconsideration. She reiterated her 

arguments that the job offer was inadequate as the employing establishment never sent a 

complete job offer to OWCP, and the March 25, 1993 OWCP decision was erroneous. Appellant 

again referred to 20 C.F.R. § 10.507 and stated that the employing establishment did not follow 

OWCP regulations. 

By decision dated April 3, 2013, OWCP found that the application for reconsideration 

was untimely. In addition, it denied merit review of the claim on the grounds that appellant did 

not show clear evidence of error. 

LEGAL PRECEDENT 

FECA provides that OWCP may review an award for or against compensation upon 

application by an employee (or his or her representative) who receives an adverse decision.14 

The employee shall exercise this right through a request to the district Office. The request, along 

with the supporting statements and evidence, is called the “application for reconsideration.”15

According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP 

decision as a matter of right.16 This section vests OWCP with discretionary authority to 

determine whether it will review an award for or against compensation.17 OWCP, through 

regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. 

§ 8128(a) of FECA.18 As one such limitation, 20 C.F.R. § 10.607 provides that an application 

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

review is sought. OWCP will consider an untimely application only if the application 

demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The 

evidence must be positive, precise and explicit and must manifest on its face that OWCP 

committed an error.19

To show clear evidence of error, the evidence submitted must not only be of sufficient 

probative value to create a conflicting medical opinion or establish a clear procedural error, but 

must be of sufficient probative value to shift the weight of the evidence in favor of the claimant 

 13 Docket No. 12-1065 (issued October 12, 2012). 

14 5 U.S.C. § 8128(a). 

15 20 C.F.R. § 10.605 (1999). 

16 Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

17 Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.” 

18 5 U.S.C. §§ 8101-8193. 

19 D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005). 
4

and raise a substantial question as to the correctness of OWCP’s decision.20 Evidence that does 

not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to 

establish clear evidence of error.21 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.22 The Board makes an independent 

determination as to whether a claimant has submitted clear evidence of error on the part of 

OWCP.23

ANALYSIS 

As the factual history indicates, appellant has filed many applications for reconsideration 

in this case. The most recent application for reconsideration, dated March 14, 2013, was 

untimely as it was filed more than one year after the March 25, 1993 merit decision. Therefore, 

the issue is whether appellant has shown clear evidence of error by OWCP. 

Appellant has argued repeatedly that the job offer was inadequate, not properly sent to 

OWCP and failed to include dates of availability. These arguments have been addressed in prior 

appeals. In her March 14, 2013 application for reconsideration, appellant again referred to 20 

C.F.R. § 10.507. The Board noted in its last decision on appeal that this was not the regulation in 

effect at the time of the April 17, 1992 and March 25, 1993 merit decisions.24

On appeal, appellant reiterates her argument that OWCP erred in the March 25, 1993 

decision. For the reasons stated, the Board finds that she has not established clear evidence of 

error in this case. Accordingly, OWCP properly denied the March 14, 2013 untimely application 

for reconsideration without merit review of the claim. 

CONCLUSION 

The Board finds that appellant’s application for reconsideration was untimely and failed 

to show clear evidence of error. 

 20 Annie L. Billingsley, 50 ECAB 210 (1998). 

21 Jimmy L. Day, 48 ECAB 652 (1997). 

22 Id. 

23 Thankamma Mathews, 44 ECAB 765 (1993). 

24 20 C.F.R. § 10.507 was applicable as of April 1, 1999. The prior regulations with respect to the issue presented 

was, as the Board noted on the prior appeal, 20 C.F.R. § 10.123. 
5

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated April 3, 2013 is affirmed. 

Issued: March 24, 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