United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.I., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, ROBINS 

AIR FORCE BASE, GA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-301 

Issued: April 2, 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 18, 2014 appellant filed a timely appeal from a May 22, 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 more than 

180 days elapsed between the last merit decision dated March 28, 2012 and the filing of this 

appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to the 

Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2 

ISSUE 

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

was untimely filed and did not demonstrate clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant submitted new evidence with his appeal. The Board has no jurisdiction to review new evidence on 

appeal; see 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On August 12, 1991 appellant, then a 41-year-old aircraft electrician, filed a traumatic 

injury claim alleging that on August 1, 1991 he injured his head, neck, and lower back in the 

performance of duty. OWCP accepted his claim for migraines, displacement of cervical and 

lumbar intervertebral discs, impotence, major depression, a crushing injury of the left shoulder 

and upper arm, and lumbar postlaminectomy syndrome. Appellant stopped work on August 5, 

1991 and returned to limited-duty employment on October 5, 1992.3 He stopped again on 

March 8, 1996 and received compensation for total disability.4

On May 16, 2011 an OWCP hearing representative determined that appellant had 

received a $90,747.25 overpayment of compensation because he submitted inaccurate travel 

vouchers from August 15, 2003 to June 19, 2010. She further found that he was at fault in the 

creation of the overpayment as he knew or should have known that he could not claim 300 to 400 

miles of travel expenses when he was located only 8 to 10 miles from his physician’s office. The 

hearing representative found that OWCP should deduct $350.00 from continuing compensation 

to repay the overpayment. 

On October 4, 2011 appellant entered into a plea agreement in the U.S. District Court for 

the Eastern Division of Pennsylvania. He pleaded guilty to 10 counts of making a false 

statement to obtain workers’ compensation benefits under 18 U.S.C. § 1920, 10 counts of mail 

fraud under 18 U.S.C. § 1341, 1 count of theft of government funds under 18 U.S.C. § 641, and 1 

count of making false statements under 18 U.S.C. § 1001. 

 3

 In a decision dated December 11, 1992, OWCP reduced appellant’s compensation to zero based on its finding 

that his actual earnings as a modified aircraft electrical worker effective October 5, 1992 fairly and reasonably 

represented his wage-earning capacity. 

4

 In decisions dated February 21, 2002, and February 7 and September 3, 2003, OWCP denied appellant’s 

schedule award claim. In a nonmerit decision dated October 10, 2003, it denied his request for reconsideration 

under 5 U.S.C. § 8128(a) and, in a nonmerit decision dated February 19, 2004, denied his request for an oral 

hearing. By decision dated November 5, 2004, OWCP granted appellant a schedule award for a 25 percent loss of 

use of the penis. On October 6, 2005 it found that he was at fault in creation of an overpayment of compensation in 

the amount of $1,644.66 because he received a lump-sum payment on his schedule award and continued to receive 

schedule award benefits. On December 28, 2005 OWCP denied appellant’s request to change attending physicians 

and on August 18, 2006 denied an oral hearing. In a decision dated January 19, 2007, it granted him a schedule 

award for an 11 percent permanent impairment of the left arm and, on April 30, 2009, granted him a schedule award 

for a 3 percent permanent impairment of the left lower extremity. 
3

By decision dated October 18, 2011, OWCP terminated appellant’s compensation 

effective October 12, 2011 as he had pleaded guilty to defrauding FECA and thus was not 

entitled to further compensation under 5 U.S.C. § 8148.5

On March 5, 2012 the United States District Court of the Eastern District of Pennsylvania 

sentenced appellant to five years of probation on each count to run concurrently. It further 

ordered that he should make restitution of $82,680.87 to OWCP. 

In a decision dated March 28, 2012, an OWCP hearing representative affirmed the 

October 18, 2011 decision. He discussed appellant’s allegation that the U.S. District Court 

refused to let him change his plea from guilty. The hearing representative noted that the record 

contained his plea agreement showing that he pleaded guilty to fraud in obtaining workers’ 

compensation and the March 5, 2012 court judgment providing sentencing, which supported 

OWCP’s termination of his compensation under section 8148(a). 

On June 3, 2013 appellant appealed to the Board. In an order dismissing appeal dated 

July 18, 2013, the Board dismissed his appeal as it was not made within 180 days of the 

March 28, 2012 decision.6 The Board noted that on or around June 19, 2012 appellant sent his 

appeal request to OWCP instead of the Board. 

In a report of telephone call dated October 23, 2013, appellant requested that OWCP put 

him back on compensation so that he could repay the overpayment. The claims examiner 

recommended that he appeal the decision.7

On February 4, 2014 appellant informed OWCP in a telephone call that he wanted 

“another chance to request reconsideration in this case.” 

By letter dated February 19, 2014, appellant requested reconsideration.8 He asserted that 

his public defender recommended that he plead guilty and told him that if he did he would not go 

 5

 Section 8148(a) states, “Any individual convicted of a violation of section 1920 of Title 18, or any other Federal 

or State criminal statute relating to fraud in the application for or receipt of any benefit under [FECA] ... shall forfeit 

(as of the date of such conviction) any entitlement to any benefit such individual would otherwise be entitled to 

under [FECA] for any injury occurring on or before the date of such conviction. Such forfeiture shall be in addition 

to any action the Secretary may take under section 8106 [forfeiture] or 8129 [recovery of overpayments]. 5 U.S.C. 

§ 8148(a). Section 10.17 of OWCP’s implementing federal regulations clarify “When a beneficiary either pleads 

guilty to or is found guilty on either Federal or State criminal charges of defrauding the Federal Government in 

connection with a claim for benefits, the beneficiary’s entitlement to any further compensation benefits will 

terminate effective the date either the guilty plea is accepted or a verdict of guilty is returned after trial, for any 

injury occurring on or before the date of such guilty plea or verdict. Termination of entitlement under this section is 

not affected by any subsequent change in or recurrence of the beneficiary’s medical condition. 20 C.F.R. § 10.17. 

6 Order Dismissing Appeal, Docket No. 13-1450 (issued July 18, 2013). 

7

 In a telephone call dated February 3, 2014, appellant related that he could not timely appeal to the Board 

because he could not read. He argued that his attorney forced him to plead guilty. On June 25, 2013 appellant 

requested that his senator help return him to workers’ compensation. In an October 30, 2013 response to a 

congressional inquiry, OWCP advised that appellant appealed to the Board on July 20, 2012 but sent the appeal to 

an incorrect address. The Board did not receive the appeal until June 3, 2013, and thus it was untimely. 

8

 Appellant’s wife wrote the reconsideration letter, which was signed by appellant. 
4

to jail and would keep his workers’ compensation benefits. Appellant claimed that he was not 

literate and did not understand the meaning of 18 U.S.C. § 1920 and 18 U.S.C. § 1341 or that he 

would lose entitlement to disability compensation if he pleaded guilty to violating those sections 

of the statute. Appellant’s wife was ill at the time and he alleged that counsel advised that he 

“was going to take care of the criminal case first and afterwards he would approach the civil 

case.” Appellant set forth his income and expenses and contended that he was unable to meet the 

necessities of living. He noted that he agreed at his court hearing that he would pay back the 

money. Appellant claimed to have sent his appeal to the Board to the wrong address, lost his 

appeal rights, and is now unable to get insurance coverage for his work injury. 

In a decision dated May 22, 2014, OWCP denied appellant’s request for reconsideration 

as it was untimely and did not demonstrate clear evidence of error. It noted that his arguments 

regarding his court hearing and his public defender did not establish error in the March 28, 2012 

decision. 

On appeal appellant maintains that he should be returned to workers’ compensation. He 

asserts that he was receiving treatment for narcotic dependency resulting from taking pain 

medication for his work injury. Appellant indicates that his insurance would not pay for 

treatment due to his employment injury. He and his family are struggling financially. 

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 the 

OWCP 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 

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

 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). 

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

ECAB 143 (2003). 
5

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 February 19, 

2014 request for reconsideration was received on March 28, 2014, more than one year after the 

last merit decision of record dated March 28, 2012, it was untimely.15 Consequently, he must 

demonstrate clear evidence of error by OWCP in denying his claim for compensation.16

The Board finds that the arguments raised by appellant in support of his request for 

reconsideration do not raise a substantial question as to the correctness of OWCP’s March 28, 

2012 decision or shift the weight of the evidence in his favor. OWCP terminated his 

compensation effective October 12, 2011 as he pleaded guilty to defrauding FECA. In support 

of his request for reconsideration, appellant argued that his attorney did not properly advise him 

that he would lose entitlement to compensation if he pleaded guilty to fraud in obtaining 

workers’ compensation benefits. At the time, his wife was ill and unable to advise him and, as 

he was not literate, he relied upon his attorney’s advice. Appellant described his financial 

difficulty. He sent an appeal to the Board to the wrong address. Appellant’s insurance will not 

pay for medical treatment for his work injury. His contentions, however, do not show that 

OWCP erred in terminating his compensation under section 8148 based on his guilty plea. There 

is no evidence that the October 12, 2011 guilty plea was ever reversed, vacated, or set aside. 

Consequently, appellant’s arguments are insufficient to establish clear evidence of error by 

OWCP.17

To establish clear evidence of error, it is not sufficient to merely 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.18 None of the evidence submitted manifests on its face 

that OWCP committed an error in denying appellant’s claim. He has not provided evidence of 

sufficient probative value to raise a substantial question as to the correctness of OWCP’s 

decision. Thus, the evidence of record is insufficient to establish clear evidence of error. 

On appeal appellant contends that he should again receive workers’ compensation. He 

further indicates that he was being treated for pain medication dependency due to his work 

injury. Appellant notes that insurance would not pay for his medical treatment. He experienced 

 13 20 C.F.R. § 10.607(a). 

14 Robert F. Stone, supra note 12. 

15 See supra note 11 at Chapter 2.1602.4 (October 2011). For decisions issued on or after August 29, 2011, the 

one-year period begins on the date of the original decision, and the application for reconsideration must be received 

by OWCP within one year of the date of OWCP’s decision for which review is sought. 

16 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005). 

17 G.H., 58 ECAB 183 (2006). 

18 See Dean D. Beets, 43 ECAB 1153 (1992). 
6

severe financial difficulty. The issue, however, is whether OWCP properly terminated 

appellant’s compensation as he pleaded guilty to fraud in obtaining workers’ compensation 

benefits. Appellant’s arguments are not pertinent to this issue. In order to establish clear 

evidence of error, a claimant must submit evidence relevant to the issue which was decided by 

OWCP.19 

CONCLUSION 

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

was untimely filed and did not demonstrate clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the May 22, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 2, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

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