United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

In the matter of R.W., Executrix of the Estate of 

M.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Dallas, TX, Employer 

__________________________________________ 

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Docket No. 16-0119 

Issued: April 18, 2016 

Appearances: Case Submitted on the Record

Michael E. Woods, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On October 27, 2015 appellant, through her representative, filed a timely appeal of a 

September 30, 2015 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed from October 7, 2004, the date of the most recent 

OWCP merit decision on the disputed issue, and the filing of this appeal on October 27, 2015, 

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 appellant’s claim. 

ISSUE 

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

was untimely filed and failed to demonstrate clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been on appeal before the Board. In a decision dated 

February 9, 2004, the Board found that the case was not in posture for decision with regard to 

whether the employee was entitled to disability compensation after July 31, 1996. The Board 

determined that OWCP had properly found that, if the employee was receiving retroactive pay 

for the period August 1, 1996, under an Equal Employment Opportunity (EEO) decision, he 

would be prohibited from receiving wage-loss compensation for the same period. However, 

there was no evidence of record that the employing establishment had fulfilled its obligations 

under the EEO decision, nor was there evidence that the employee was paid any of the back 

wages he was owed. On remand, the Board directed that OWCP should determine whether the 

employee was paid back wages pursuant to the EEO order and, after examining all of the 

relevant evidence, to issue a de novo decision on the employee’s entitlement to wage-loss 

compensation benefits for the period beginning August 1, 1996.2

 The facts of the case, as set 

forth in the prior decisions, are incorporated herein by reference. 

On May 12, 2004 OWCP requested that the employing establishment provide 

documentation regarding retroactive payments for salary or wages beginning August 1, 1996 and 

the employee’s return to work. The employing establishment provided sufficient evidence to 

establish that appellant was on the payroll for that period and included the employee’s back pay 

application and the back pay decision/settlement worksheet with supporting documents. 

In an October 7, 2004 decision, OWCP determined that the employee had received back 

pay for the period August 1, 1996 until his return to work on February 23, 2004. It determined 

that, as a result, the employee was not eligible for any further FECA compensation benefits 

during that period. 

The record indicates that the employee passed away in 2013. 

On May 18, 2015 appellant’s representative requested reconsideration of the October 7, 

2004 decision. He argued that the employee should receive compensation for wage-loss 

compensation benefits for the period beginning August 1, 1996 through February 23, 2004. 

Appellant’s representative argued that the employee did not receive the correct payment for his 

back wages under the EEO order and the wages were calculated incorrectly. He argued that the 

employee was not compensated for the above noted period of time, but rather, the employing 

establishment credited the employee with the amount of money he would have received from his 

Office of Personnel Management (OPM) retirement account as if he had been working and 

receiving wages outside the employing establishment. 

Appellant’s representative argued that instead of paying the employee for the time period 

in question, the employing establishment deducted/credited the compensation it owed him 

because he used his own (money in his retirement) to support him and his family. He argued that 

since the employee used his own money, he was entitled to make an election of benefits and have 

his OPM retirement account credited for the amount of money withdrawn from his retirement 

 2

 Docket No. 04-0091 (issued February 9, 2004). 
3

account. Under 5 U.S.C. § 8116, the representative argued that when an election was required in 

a disability case, OWCP must provide a Form CA-1102 to the employee, which provides 

information about the rate of compensation payable and the employee’s right to elect the more 

advantageous benefit. He argued that when the employee’s benefits were reinstated on 

February 23, 2004, it was clear evidence of error because OWCP failed to provide him with an 

election of benefits letter. The representative argued that he had met the requirements to 

establish clear evidence of error and requested that the employee be given an election of benefits 

letter to elect the more advantageous benefit. No documentation accompanied his argument. 

In a September 30, 2015 decision, OWCP denied appellant’s request for reconsideration 

for the reason that it was untimely filed and failed to demonstrate clear evidence of error. 

LEGAL PRECEDENT 

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for 

further merit review.3

 This discretionary authority, however, is subject to certain restrictions. 

For instance, a request for reconsideration must be received within one year of the date of 

OWCP’s decision for which review is sought.4 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.5

 OWCP may not deny a reconsideration request solely as it was untimely filed. When a 

claimant’s application for review is untimely filed, OWCP must nevertheless undertake a limited 

review to determine whether it demonstrates clear evidence of error. If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.6

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the 

issue that was decided by OWCP. The evidence must be positive, precise, and explicit and must 

manifest on its face that OWCP committed an error. Evidence that does not raise a substantial 

question concerning the correctness of OWCP’s decision is insufficient to establish clear 

evidence of error. It is not enough merely to show that the evidence could be construed so as to 

produce a contrary conclusion. This entails a limited review by OWCP of how the evidence 

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

whether the new evidence demonstrates clear error on the part of OWCP.7

 To demonstrate clear 

evidence of error, the evidence submitted must not only be of sufficient probative value to create 

a conflict in the 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. The Board makes an independent 

 3 See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009). 

4

 20 C.F.R. § 10.607(a). 

5 E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

6 M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term “clear evidence of 

error” is intended to represent a difficult standard). 

7 Steven J. Gundersen, 53 ECAB 252, 254-55 (2001). 
4

determination of whether a claimant has demonstrated clear evidence of error on the part of 

OWCP such that it abused its discretion in denying merit review in the face of such evidence.8

ANALYSIS 

In its September 30, 2015 decision, OWCP properly determined that appellant failed to 

file a timely application for review. It rendered its last merit decision regarding whether the 

employee was entitled to receive compensation for wage loss beginning August 1, 1996 on 

October 7, 2004. The reconsideration request of appellant’s representative was received on 

May 18, 2015, more than 10 years after the October 7, 2004 merit decision and was, therefore, 

untimely. 

The Board also finds that the untimely request does not demonstrate clear evidence of 

error. In its October 7, 2004 decision, OWCP determined that the employing establishment had 

provided sufficient documentation to establish that the employee had been on the employing 

establishment rolls for the period August 1, 1996 through his return to work on 

February 23, 2004. It determined that the employee was thus not entitled to any further 

compensation benefits during that period. 

The employee’s representative argued that the employee should receive compensation for 

wage-loss compensation benefits for the period beginning August 1, 1996 through 

February 23, 2004 because the employing establishment had not properly paid the employee for 

his back wages under the EEO order and the wages had been calculated incorrectly. However, 

the Board lacks jurisdiction over the structure and accuracy of the back wages the employee was 

to receive, as a result of this EEO order. Any concerns regarding that payment would be 

addressed to either the EEOC or the employing establishment. Appellant’s representative argues 

that the employing establishment calculated some of the back pay on the employee’s retirement 

salary and as such believes an election of benefits form, under 5 U.S.C. § 8116, would have been 

appropriate. However, this allegation has not been supported by any evidence to establish any 

error in OWCP’s September 30, 2015 decision. While appellant is correct that if an employee 

were receiving retirement pay and was also entitled to wage-loss compensation under FECA, an 

election under 5 U.S.C. § 8116 would be required. In this case, however, the employee was not 

entitled to compensation benefits under FECA because he was receiving compensation from the 

employing establishment for back wages.9

 As such this argument fails to raise a substantial 

question as to the correctness of OWCP’s decision and is therefore insufficient to demonstrate 

clear evidence of error. 

OWCP reviewed the arguments submitted by appellant’s representative and properly 

found it to be insufficient to demonstrate clear evidence of error on the part of OWCP such that 

OWCP abused its discretion in denying merit review. The Board finds that OWCP did not abuse 

its discretion in denying further merit review. 

 8 Id.

9 See 5 U.S.C. § 8116; 20 C.F.R. § 10.421. 
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CONCLUSION 

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

was untimely filed and failed to demonstrate clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the September 30, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 18, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board