United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.G., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL EMERGENCY MANAGEMENT 

AGENCY, Washington, DC, Employer 

__________________________________________ 

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Docket No. 16-0038 

Issued: February 8, 2016 

Appearances: Case Submitted on the Record

Jacqueline Shanahan, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 13, 2015 appellant, through counsel, filed a timely appeal from an April 17, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed between March 12, 2014, the date of the most recent merit decision, and 

the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of appellant’s 

claim.2

 1

 5 U.S.C. § 8101 et seq. 

2

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from April 17, 2015, the date of OWCP’s last decision, was 

October 14, 2015. Since using October 15, 2015, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is October 13, 2015, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 
2

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review of the merits of his claim as his request was untimely filed and failed to demonstrate clear 

evidence of error. 

FACTUAL HISTORY 

This case has previously been before the Board. OWCP accepted that on June 1, 2006 

appellant, then a 63-year-old logistical support worker, sustained a tear of the horn of his right 

knee posterior meniscus and a sprain/strain of his right knee. The accepted conditions were later 

expanded to include cervical radiculopathy. Appellant stopped work on June 5, 2006 and did not 

return. 

In February 2010, appellant was referred to an OWCP-sponsored vocational 

rehabilitation program. In a March 6, 2011 report, his vocational rehabilitation counselor found 

him vocationally and physically capable of earning wages in the constructed position of 

operations manager. In a March 11, 2011 form report, Dr. Robert Wood, an attending Boardcertified orthopedic surgeon, indicated that appellant could work eight hours per day in 

“sedentary duty only.” 

In a June 15, 2011 decision, OWCP reduced appellant’s compensation to zero effective 

June 5, 2011 based on his ability to earn wages in the constructed position of operations 

manager. It noted that the physical duties of the position were sedentary in nature and that they 

were in accordance with the restrictions provided by his attending physician, and that his 

rehabilitation counselor had determined that he was vocationally capable of performing the 

position given his business degree and 27 years of experience in transportation operations. 

Appellant disagreed with this decision and, through counsel, requested a hearing before 

an OWCP hearing representative. In a March 1, 2012 decision, an OWCP hearing representative 

affirmed OWCP’s June 15, 2011 decision, finding that appellant was physically and vocationally 

capable of performing the selected position of operations manager. 

In a February 15, 2013 decision,3

 the Board affirmed OWCP’s March 1, 2012 decision, 

finding that OWCP properly adjusted appellant’s compensation effective June 5, 2011 based on 

his ability to earn wages in the constructed position of operations manager. The Board found 

that OWCP properly relied on the professional assessment of appellant’s vocational 

rehabilitation counselor when it determined that appellant could earn wages in the position. The 

medical and vocational suitability of the position and the reasonable availability of the position 

within appellant’s commuting area were determined to be sufficiently documented in the record.4

 3

 Docket No. 12-1218 (issued February 15, 2013). 

4

 In a June 14, 2013 order, the Board denied appellant’s petition for reconsideration of its February 15, 2013 

decision. 
3

In a letter dated July 11, 2013 and received by OWCP on July 15, 2013, appellant, 

through counsel, requested reconsideration of his claim. In an August 29, 2013 decision, OWCP 

again found that it had properly adjusted appellant’s compensation effective June 5, 2011 based 

on his ability to earn wages in the constructed position of operations manager. 

In a letter dated October 11, 2013 and received by OWCP on October 15, 2013, 

appellant, through counsel, requested reconsideration of OWCP’s August 29, 2013 decision. 

OWCP conducted a merit review of appellant’s claim and issued a March 12, 2014 decision 

affirming its August 29, 2013 decision. It determined that it had properly adjusted appellant’s 

compensation effective June 5, 2011 based on his ability to earn wages in the constructed 

position of operations manager. 

On March 9, 2015 OWCP received counsel’s request for reconsideration of his claim. 

The letter contained argument from counsel in support of appellant’s claim that OWCP 

improperly adjusted his compensation effective June 5, 2011 based on his ability to earn wages 

in the constructed position of operations manager. A second copy of the request for 

reconsideration was received by OWCP on March 19, 2015 

In a decision dated April 17, 2015, OWCP refused to reopen appellant’s case for further 

review of the merits of his claim because his request was untimely filed and failed to 

demonstrate clear evidence of error. It found that appellant’s reconsideration request was 

untimely, indicating that it was received on March 19, 2015, i.e., a period more than one year 

after OWCP’s last merit decision dated March 12, 2014. OWCP then found that the evidence 

and argument submitted by appellant in support of his reconsideration request did not establish 

clear evidence of error in its March 12, 2014 decision. 

LEGAL PRECEDENT 

 To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a 

claimant’s application for review must be received within one year of the date of that decision.5 

The Board has found that the imposition of the one-year limitation does not constitute an abuse 

of the discretionary authority granted OWCP under section 8128(a) of FECA.6

OWCP, however, may not deny an application for review solely because the application 

was not timely filed. When an application for review is not timely filed, it must nevertheless 

undertake a limited review to determine whether the application establishes “clear evidence of 

error.”7 OWCP regulations and procedure provide that it will reopen a claimant’s case for merit 

 5

 20 C.F.R. § 10.607(a). 

6

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 

7 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 
4

review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if 

appellant’s application for review shows “clear evidence of error” on the part of OWCP.8

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

which was decided by OWCP.9

 The evidence must be positive, precise, and explicit and must 

manifest on its face that OWCP committed an error.10 Evidence which does not raise a 

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

clear evidence of error.11

ANALYSIS 

 OWCP accepted that on June 1, 2006 appellant sustained a tear of the horn of his right 

knee posterior meniscus and a sprain/strain of his right knee. The accepted conditions were later 

expanded to include cervical radiculopathy. Appellant stopped work on June 5, 2006 and did not 

return. In February 2010, he was referred to an OWCP-sponsored vocational rehabilitation 

program. OWCP reduced appellant’s compensation to zero effective June 5, 2011 based on his 

ability to earn wages in the constructed position of operations manager. In a February 15, 2013 

decision, the Board affirmed OWCP’s reduction of appellant’s compensation effective 

June 5, 2011. In decisions dated August 29, 2013 and March 12, 2014, OWCP affirmed its 

reduction of appellant’s compensation effective June 5, 2011. 

 In a decision dated April 17, 2015, OWCP refused to reopen appellant’s case for further 

review of the merits of his claim because his request was untimely filed and failed to 

demonstrate clear evidence of error. It found that appellant’s reconsideration request was 

untimely12 and then found that the evidence and argument submitted by appellant in support of 

his reconsideration request did not show clear evidence of error in its March 12, 2014 decision. 

 The Board finds that, in its April 17, 2015 decision, OWCP improperly determined that 

appellant filed an untimely request for reconsideration of its March 12, 2014 decision. 

Appellant’s reconsideration request was timely because it was received on March 9, 2015, less 

than one year after OWCP’s March 12, 2014 decision. 

 8 Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5a 

(October 2011). OWCP procedures further provide, “The term ‘clear evidence of error’ is intended to represent a 

difficult standard. [Appellant] must present evidence which on its face shows that OWCP made a mistake. For 

example, a claimant provides proof that a schedule award was miscalculated, such as a marriage certificate showing 

that [appellant] had a dependent but the award was not paid at the augmented rate. Evidence such as a detailed, 

well-rationalized medical report which, if submitted before the denial was issued would have created a conflict in 

medical opinion requiring further development, is not clear evidence of error.” 

9 See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992). 

 10 20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991). 

 11 See Jesus D. Sanchez, 41 ECAB 964, 968 (1990). 

12 OWCP indicated that appellant’s reconsideration request was received on March 19, 2015, i.e., a period more 

than one year after OWCP’s last merit decision dated March 12, 2014. 
5

 Because appellant filed a timely reconsideration request, OWCP improperly considered 

his reconsideration under the clear evidence of error standard used for untimely reconsideration 

requests.13 Therefore, the case shall be remanded to OWCP for consideration of appellant’s 

timely reconsideration request under the standards for timely reconsideration requests.14

CONCLUSION 

The Board finds that OWCP improperly refused to reopen appellant’s case for further 

review of the merits of his claim. The case is remanded to OWCP for further development. 

ORDER 

IT IS HEREBY ORDERED THAT the April 17, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded to OWCP for further 

proceedings consistent with this decision of the Board. 

Issued: February 8, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 13 See supra notes 7 and 8. 

14 Supra note 1 at § 8128(a); 20 C.F.R. §§ 10.606(b)(3), 10.607(a).