United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 14-1351 

Issued: October 20, 2014 

Appearances: Case Submitted on the Record

Stephen Larkin, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 28, 2014 appellant, through her representative, filed a timely appeal of a 

March 12, 2014 decision of the Office of Workers’ Compensation Programs (OWCP), finding 

that appellant’s request for reconsideration was untimely and failed to show clear evidence of 

error. Pursuant to the Federal Employees’ Compensation Act1

 (FECA), the Board has 

jurisdiction over the March 12, 2014 decision. The Board does not have jurisdiction over a 

decision on the merits of the claim.2

 

ISSUE 

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

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

 1

 5 U.S.C. § 8101 et seq. 

2

 The last merit decision was an OWCP decision dated November 10, 2011. 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

FACTUAL HISTORY 

The case has been before the Board on two prior appeals. In an order dated May 18, 

2010, the Board remanded the case to OWCP for a decision on the merits of the claim.3

 The 

Board found that OWCP had delayed issuance of a decision regarding appellant’s 

reconsideration request that jeopardized her appeal rights. By decision dated June 28, 2010, 

OWCP denied merit review of the claim. The Board issued an order dated September 28, 2011, 

remanding the case to OWCP to issue a decision on the merits.4

In a decision dated November 10, 2011, OWCP reviewed the merits of the claim and 

denied modification. It found that appellant had not established any compensable work factors. 

According to the Integrated Federal Employee’s Compensation System (iFECS) record, 

on November 15, 2012 OWCP received a request for reconsideration dated October 20, 2012 and 

additional evidence. The additional evidence included statements by appellant, time sheets, 

correspondence and medical evidence. 

On January 9, 2014 appellant resubmitted the October 20, 2012 reconsideration request.5

 

By decision dated March 12, 2014, OWCP found that the reconsideration request received on 

January 9, 2014 was untimely. It found that appellant had only provided a statement in her 

reconsideration request with her opinion that administrative error had occurred, without 

including 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.6 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.”7

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.8

 This section vests OWCP with discretionary authority to 

 3

 Docket No. 09-2022 (issued May 18, 2010). Appellant had filed a CA-2 claim for compensation on 

December 29, 2005 alleging mental and physical stress from actions of her supervisor. The claim was denied by 

decision dated June 27, 2006, and an OWCP hearing representative affirmed the denial of the claim by decision 

dated March 15, 2007. 

4

 Docket No. 11-512 (issued September 28, 2011). 

5

 The request contains a stamp purporting to indicate receipt by OWCP on November 7, 2012, with the number 

seven handwritten. 

6

 5 U.S.C. § 8128(a). 

7

 20 C.F.R. § 10.605 (2012). 

8 Leon D. Faidley, Jr., 41 ECAB 104 (1989). 
3

determine whether it will review an award for or against compensation.9

 OWCP, through 

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

§ 8128(a) of FECA.10 As one such limitation, 20 C.F.R. § 10.607 provides that an application 

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

review is sought.11 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.12 

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 

and raise a substantial question as to the correctness of OWCP’s decision.13 Evidence that does 

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

establish clear evidence of error.14 It is not enough merely to show that the evidence could be 

construed so as to produce a contrary conclusion.15 A determination of whether the claimant has 

established clear evidence of error entails a limited review of how the evidence submitted with 

the reconsideration request bears on the evidence previously of record.16

ANALYSIS 

The Board finds that the March 12, 2014 OWCP decision did not properly address the 

issue and evidence of record. OWCP does not acknowledge that appellant had previously 

submitted the October 20, 2012 reconsideration request prior to January 9, 2014. The decision 

only focused on the January 9, 2014 resubmission of the reconsideration request. As to 

timeliness, the Board notes that the reconsideration request was established as received by iFECS 

on November 15, 2012. Although receipt in iFECS is considered the date of receipt under 

OWCP procedures for decisions after August 29, 2011,17 the Board notes that this document 

itself contains a stamp that purports to offer an earlier date of receipt on November 7, 2012. 

Appellant had one year from November 10, 2011 to timely request reconsideration; therefore the 

 9

 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.” 

10 5 U.S.C. §§ 8101-8193. 

11 20 C.F.R. § 10.607 (2012). 

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

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

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

15 Id. 

16 K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010). 

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

earlier date would render the reconsideration request timely.18 OWCP made no findings as to 

whether the stamp on the document represents an OWCP date stamp of receipt or otherwise 

address the issue of timeliness with respect to the submission of the original reconsideration 

request. On return of the case record OWCP should make proper findings on the issue of 

timeliness. 

Once a proper determination is made as to timeliness, OWCP should address the 

evidence that was submitted with the reconsideration request in accord with the appropriate 

standard of review. The March 12, 2014 decision refers only to the document received on 

January 9, 2014. Appellant had submitted additional evidence with the initial reconsideration 

request. Even if the reconsideration request was untimely, OWCP must properly review all the 

evidence to determine if the clear evidence of error standard has been met in this case. As noted 

above, the clear evidence of error standard requires a determination of how the evidence 

submitted with the reconsideration request bears on the evidence previously of record. 

A claimant is entitled to a proper decision with findings of fact and a statement of 

reasons.19 Since the March 12, 2014 decision fails to make proper findings with respect to the 

reconsideration request and the evidence submitted, the case will be remanded to OWCP. After 

such further development as OWCP deems necessary, it should issue an appropriate decision. 

CONCLUSION 

The Board finds that OWCP did not properly adjudicate the issues and the case is 

remanded for proper findings with respect to the request for reconsideration. 

 18 November 10, 2012 was a Saturday, so appellant had until Monday, November 12, 2012 to timely request 

reconsideration. See P.R., Docket No. 14-300 (issued May 12, 2014). 

19 20 C.F.R. § 10.126. 
5

ORDER 

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

Compensation Programs dated March 12, 2014 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: October 20, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board