United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.M., Appellant 

and 

U.S. AIR FORCE, ROBINS AIR FORCE BASE, 

Forest Park, IL, Employer 

__________________________________________ 

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Docket No. 15-426 

Issued: April 20, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 16, 2014 appellant filed a timely appeal from a December 2, 2014 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his 

request for reconsideration as untimely and insufficient to establish clear evidence of error. As 

there is no merit decision within 180 days of the filing of this appeal, the Board lacks jurisdiction 

to review the merits of his claim, pursuant to the Federal Employees’ Compensation Act1

(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 untimely and did not demonstrate clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. On April 5, 1990 the Board affirmed an 

August 19, 1989 schedule award decision.2

 By decision dated March 10, 1999, the Board 

affirmed an August 10, 1996 decision finding that appellant had not established a recurrence of 

disability on March 16, 1989 and a November 13, 1996 decision denying his request to reopen 

his case for further review of the merits under 5 U.S.C. § 8128(a).3

 On October 22, 2002 the 

Board affirmed March 14 and November 29, 2001, and March 5, 2002 decisions denying his 

request for further merit review pursuant to section 8128(a).4

 In decisions dated May 2, 2005, 

October 21, 2009, July 19, 2011, and July 25, 2012 the Board affirmed OWCP decisions denying 

appellant’s requests for reconsideration as they were not timely and did not establish clear 

evidence of error.5

 In a December 16, 2013 order, the Board set aside a May 10, 2013 nonmerit 

decision denying appellant’s request for reconsideration and remanded the case for OWCP to 

apply the proper standard of review for untimely requests for reconsiderations.6

 By decision 

dated July 1, 2014, the Board affirmed a February 3, 2014 decision finding that his request for 

reconsideration was untimely and failed to demonstrate clear evidence of error.7

 The facts and 

circumstances of the case as set forth in the prior decisions are hereby incorporated by reference. 

By letter dated July 7, 2014, appellant asked OWCP whether it was required to follow the 

provisions of 5 U.S.C. § 8106(c) before terminating compensation for an employee on limited 

duty who stopped work for a good reason. In a July 30, 2014 response, OWCP advised him of 

the provisions of section 8106(c). It further stated, “If you were offered suitable employment 

within your restrictions and later abandoned your post without providing updated medical 

evidence as to why the positon was not suitable for you, entitlement to compensation can be 

terminated.” 

 

 2

 Docket No. 90-321 (issued April 5, 1990). 

3

 Docket No. 97-670 (issued March 10, 1999). OWCP accepted that on September 10, 1987 appellant, then a 

28-year-old mail handler, sustained left carpal tunnel syndrome causally related to factors of his federal 

employment. Appellant returned to limited-duty employment on November 5, 1988 but resigned from work on 

March 16, 1989 because he did not want to work his assigned schedule. On June 19, 1989 the employing 

establishment terminated his employment due to his failure to report for work. The Board found that the employing 

establishment had not required appellant to work outside his restrictions and that the medical evidence had not 

established that he was disabled from his modified employment. 

4

 Docket No. 02-1032 (issued October 22, 2002). 

5

 Docket No. 04-757 (issued May 2, 2005); Docket No. 09-151 (issued October 21, 2009); Docket No. 10-2320 

(issued July 19, 2011); Docket No. 12-714 (issued July 25, 2012). On January 25, 2010 the Board denied 

appellant’s petition for reconsideration of its July 19, 2011 decision. Order Denying Petition for Reconsideration, 

Docket No. 10-2320 (issued January 25, 2012). On March 1, 2013 the Board dismissed appellant’s appeal of an 

information letter. Order Dismissing Appeal, Docket No. 12-1967 (issued March 1, 2013). 

6 Order Remanding Case, Docket No. 13-1383 (issued December 16, 2013). 

7

 Docket No. 14-759 (issued July 1, 2014). 
3

On September 26, 2014 appellant requested reconsideration of OWCP’s August 10, 1996 

decision. He related that he was submitting OWCP’s July 30, 2014 letter as new evidence. 

Appellant asserted that it failed to apply the provisions of section 8106 prior to terminating his 

compensation on July 6, 1992, citing Maggie L. Moore.

8

 He also alleged that the employing 

establishment failed to allow him to resume his limited-duty position. 

In a letter dated September 30, 2014, appellant explained that he began working limited 

duty in November 1988. He indicated that he stopped work for cause in February 1989. 

Appellant asked whether OWCP had to follow section 8106 in February 1989 before terminating 

his compensation of an employee “who has abandoned their position for cause.” 

In a November 14, 2014 response, OWCP instructed appellant to follow his appeal rights 

for a September 26, 2014 decision. 

By decision dated December 2, 2014, OWCP denied appellant’s request for 

reconsideration as it was not timely and did not establish clear evidence of error. It noted that it 

had not terminated his compensation under section 8106(c). 

On appeal, appellant argues that OWCP did not respond to his request for further 

information on September 30, 2014 but instead told him to follow his appeal rights for a decision 

dated September 26, 2014 that did not exist. He also asserts that its August 10, 1996 decision 

constituted a suitable work termination as it found that he was not entitled to compensation 

because he abandoned a limited-duty job. 

LEGAL PRECEDENT 

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

authority under 5 U.S.C. § 8128(a) of FECA.9 As once such limitations, 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 application must establish, on its face, that such decision was erroneous.10

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 an error (for example, 

proof of a miscalculation in a schedule award). Evidence such as a detailed, well-rationalized 

medical report which, if submitted prior to the denial, would have created a conflict in medical 

opinion requiring further development, is not clear evidence of error and would not require a 

review of the case on the Director’s own motion.11 To establish clear evidence of error, a 

 8

 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992). 

9

 5 U.S.C. § 8101 et seq. 

10 20 C.F.R. § 10.607. 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011). 
4

claimant must submit evidence relevant to the issue which was decided by OWCP. The evidence 

must be positive, precise and explicit and must manifest on its face that it committed an error.12

ANALYSIS 

OWCP properly determined that appellant failed to file a timely application for review. 

Its procedures provide that the one-year time limitation period for requesting reconsideration 

begins on the date of the original OWCP decision.13 A right to reconsideration within one year 

also accompanies any subsequent merit decision on the issues.14 As appellant’s September 26, 

2014 request for reconsideration was submitted more than one year after the last merit decision 

of record, it was untimely. Consequently, he must demonstrate clear evidence of error by OWCP 

in denying his claim for compensation.15

Appellant argued that OWCP failed to apply the provisions of section 8106 prior to 

terminating his compensation on July 6, 1992 as required under Maggie L. Moore.

16 In support 

of his allegation, he submitted a July 30, 2014 letter from OWCP advising him that if he 

abandoned suitable employment his compensation could be terminated under section 8106(c).17 

As discussed by the Board in its July 19, 2011 decision, OWCP did not terminate appellant’s 

compensation for refusing suitable work. Instead, OWCP denied his claim for compensation 

beginning March 16, 1989 based on its finding that he did not show that the employing 

establishment withdrew his limited-duty work and as the medical evidence was insufficient to 

establish that he was disabled from his light-duty assignment. Consequently, appellant’s 

arguments are not pertinent to the underlying issue in this case.18

Appellant also alleged that the employing establishment failed to let him resume his 

limited-duty position. The Board’s jurisdiction, however, is limited to reviewing final decisions 

of OWCP.19 

 12 Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55 

ECAB 143 (2003). 

13 20 C.F.R. § 10.607(a). 

14 Robert F. Stone, supra note 12. 

15 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005). 

16 Supra note 8 (holding that when OWCP makes a preliminary determination of suitability and extends the 

employee 30 days to either accept or give reasons for not accepting, OWCP must consider any reasons given before 

it can make a final determination on the issue of suitability. Should OWCP find the reasons unacceptable, it may 

finalize its preliminary determination of suitability, but it may not invoke the penalty provision of section 8106(c) 

without first affording the employee the opportunity to accept or refuse the offer of suitable work with notice of the 

penalty provision). 

17 Section 8016(c)(2) of FECA provides that a partially disabled employee who refuses or neglects to work after 

suitable work is offered to, procured by, or secured for the employee is not entitled to compensation benefits. 

5 U.S.C. § 8106(c)(2). 

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

19 20 C.F.R. § 501.2(c). 
5

Appellant also questioned whether OWCP had to apply the provisions of section 8106(c) 

if a claimant stopped performing limited-duty work. He alleged that it did not follow section 

8106(c) prior to the employing establishment’s termination of his employment for being absent 

without leave. If OWCP terminates compensation for refusing or abandoning suitable work, it 

must apply the provisions of section 8106(c).20 The employing establishment’s termination of 

appellant for cause is not within the Board’s jurisdiction, which extends only to review of final 

decisions of OWCP.21

On appeal, appellant argues that OWCP did not respond to his request for further 

information on September 30, 2014 but instead told him to follow his appeal rights for a decision 

dated September 26, 2014 that was not issued. However, any error by OWCP in referencing a 

decision on September 26, 2014 is harmless as it does not affect the outcome of the case.22

Appellant additionally contends that OWCP, in its August 10, 1996 decision, terminated 

his compensation under section 8106(c) when it found that he was not entitled to compensation 

because he abandoned his limited-duty positon. OWCP, however, determined that the medical 

evidence was insufficient to establish that he was totally disabled from his limited-duty position 

beginning August 10, 1996 and thus found that he was not entitled to compensation.23 While 

OWCP used the term “abandonment” to describe appellant’s work stoppage, it is clear from the 

context of the decision that it was informing him that a voluntary work stoppage does not 

constitute a recurrence of disability rather than terminating his compensation under section 

8106(c).24 

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.25 None of the evidence submitted manifests on its face 

that OWCP committed an error in denying appellant’s claim. Appellant has not provided 

 20 5 U.S.C. § 8106(c); see also U.A., 59 ECAB 701 (2008). 

21 Id. 

22 See generally D.G., Docket No. 13-612 (issued May 21, 2013). 

23 As discussed, on March 10, 1999 the Board affirmed OWCP’s August 10, 1996 decision. Docket No. 97-670 

(issued March 10, 1999). It found that appellant had not worked outside his restrictions and that he had not 

submitted medical evidence showing that he was unable to perform his modified employment beginning March 16, 

1989; consequently, it found that he did not establish a recurrence of disability. 

24 A “recurrence of disability” means an inability to work after an employee has returned to work caused by a 

spontaneous change in a medical condition, which resulted from a previous injury or illness without an intervening 

injury or new exposure to the work environment that caused the illness. This term also means an inability to work 

that takes place when a light-duty assignment made specifically to accommodate an employee’s physical limitations 

due to his or her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons of 

misconduct, nonperformance of job duties or a reduction-in-force), or when the physical requirements of such an 

assignment are altered so that they exceed his or her established physical limitations. 20 C.F.R. § 10.5(x); see also 

S.F., 59 ECAB 525 (2008); Terry R. Hedman, 38 ECAB 222 (1986). 

25 See D.G., 59 ECAB 455 (2008). 
6

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. 

CONCLUSION 

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

was untimely and did not demonstrate clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the December 2, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 20, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees' Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees' Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees' Compensation Appeals Board