United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.W., claiming as widow of S.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Miami, FL, Employer 

__________________________________________ 

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Docket No. 15-1187 

Issued: August 19, 2015 

Appearances: Case Submitted on the Record

Lenin V. Perez, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 4, 2015 appellant, through her representative, filed a timely appeal from a 

March 11, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 

As more than 180 days has elapsed from March 7, 2013, the date of the most recent merit 

decision, 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. 

ISSUE 

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

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

clear evidence of error. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On May 16, 2012 appellant filed a claim for survivor benefits (Form CA-5) due to the 

death of her husband on February 7, 2012. She provided copies of a marriage license and funeral 

costs.2

On February 7, 2012 the employing establishment had filed an Official Superior’s Report 

of Employee’s Death (Form CA-6) regarding the death of the employee on February 7, 2012.3

 

The employee’s supervisor noted that the employee was found in a storm drain located in the 

employing establishment’s parking lot on February 7, 2012.4 The employee had clocked out at 

10:54 p.m. on February 6, 2012 and he had removed the grate from a storm drain in the parking 

lot in an apparent attempt to retrieve a cellular phone which had fallen into the drain. The 

supervisor indicated that the employee was not in the performance of duty at the time of his 

death due to the time that had passed since he stopped work and the fact that he had removed a 

storm drain cover. 

Several witness statements were submitted as well as an incident report from the plant 

manager for the employing establishment. The incident report revealed that the employee had 

clocked out at 10:54 p.m. on February 6, 2012. At approximately 11:45 p.m. on February 6, 

2012, the employee had approached a coworker asking for assistance in retrieving a phone he 

had dropped into the storm drain. The coworker indicated that he was unable to immediately 

provide assistance but advised the employee that he would return after performing a scheduled 

task. At approximately 12:18 a.m. on February 7, 2012, two coworkers noted two legs extending 

up from an open storm drain and emergency medical services were summoned. The coworkers 

pulled the employee from the drain, noting that he appeared to be dead, and they attempted 

resuscitation. At 12:29 a.m., an ambulance arrived and emergency medical workers attempted to 

revive the employee. The employee was pronounced dead at the scene at approximately 1:00 

a.m. It was noted that a dock handle had been used to remove the drain cover and a small broom 

was found in the sewer. 

An employing establishment official also had filed a letter of challenge on behalf of the 

employing establishment on February 8, 2012, indicating that the employee was outside the 

performance of his duties at the time of his death on February 7, 2012. The investigation 

revealed that he had been off the clock for approximately one hour when his accident occurred. 

The official noted that the employee removed the cover to the storm sewer drain and either 

intentionally or accidentally entered the confined space, ultimately leading to his death by 

drowning in the accumulated water in the bottom of the drain. The employee had moved his 

vehicle, intentionally blocking use of the parking aisle, in order to protect himself while 

attempting to retrieve the phone. 

 2

 The marriage license indicated that appellant married the employee on February 18, 1984. OWCP has 

acknowledged that appellant was married to the employee at the time of his death on February 7, 2012. 

3

 The employee was 70 years old and worked as a mail handler for the employing establishment. A February 8, 

2012 autopsy report lists the employee’s cause of death as drowning. 

4

 The supervisor listed the time of death as 12:28 a.m. on February 7, 2012. It was acknowledged that the parking 

lot was on the premises of the employing establishment. 
3

In a statement dated June 11, 2012, appellant argued that the employee’s death occurred 

within a reasonable time after his work shift ended and therefore occurred within the 

performance of duty. 

In a July 26, 2012 decision, OWCP denied appellant’s claim for survivor benefits as it 

was determined that the employee’s death on February 7, 2012 did not occur in the performance 

of duty. Regarding the reasons for denying the claim, it stated: 

“At the time of death, [the employee] was in the process of trying to retrieve his 

cell phone from a storm drain. [The employee] was not in the performance of his 

duties as a mail handler, and he had been off work at least an hour and a half past 

the time he clocked out. Although [the employee] was on the premises at the time 

of his death his efforts to retrieve his cell phone from the storm drain were not 

part of his employers business or an activity that could be considered incidental to 

his employment.” 

OWCP’s July 26, 2012 decision was returned by the U.S. Postal Service as undeliverable 

and it was determined that appellant’s mailing address was incorrect. In order to preserve 

appellate rights, it corrected the address and reissued the decision effective August 10, 2012. 

Appellant disagreed with OWCP’s August 10, 2012 decision and requested a telephonic 

hearing before an OWCP hearing representative. During the December 12, 2012 hearing, 

appellant’s representative stated that it was his belief that the employee actually worked until 

11:30 p.m. on February 7, 2012 and he indicated that he intended to produce evidence to support 

this assertion. The employee’s daughter testified that the employee’s shift usually ended at 

10:30 p.m., but that he had called appellant on February 6, 2012 and told her that he had to work 

45 to 60 minutes of overtime. Appellant’s representative indicated that he hoped to obtain the 

report of the employee’s actual clock rings on February 7, 2012, as well as any video 

surveillance footage of the parking lot, to support his argument that the employee was on the 

clock on or around the time of his death. 

In a March 7, 2013 decision, OWCP’s hearing representative affirmed OWCP’s 

August 10, 2012 decision. He found that appellant’s claim for survivor benefits was properly 

denied as it had not been established that the employee was in the performance of duty at the 

time of his death on February 7, 2012. 

In a February 26, 2014 letter, appellant, through her representative, requested 

reconsideration of her claim. The representative stated: 

“In the decision, the hearing officer relates to the fact that the [employee] was on 

the premise[s] at the time of the accident but that the [employing establishment] 

stated that the accident happened one hour after time the [employee’s] end [of] 

tour. However the wife said that the [employee] called her to tell her that he had 

to work overtime on that day. Enclosed please find the letter written to the 

[employing establishment] under the Freedom of Information Act asking the 

[employing establishment] for the [employee’s] clock ring for the day in question 

as well as the video of the parking lot for the hour in question. The [employing 

establishment] refuse[d] to answer this request so the weight of best evidence 
4

would be that the [employee] worked overtime on the day in question and that 

since he was on the premise[s] this case needs to be accepted.”5

 By decision dated March 27, 2014, OWCP denied appellant’s request for further review 

of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It indicated that the argument and 

evidence submitted by appellant was not relevant as it did not have probative value with respect 

to the question of whether the employee was in the performance of duty at the time of his death. 

In a November 18, 2014 letter received on December 11, 2104, appellant, through her 

representative, again requested reconsideration of her claim. The representative stated: 

“In the decision of the hearing officer it relates to the fact that the [employee] was 

on the premise[s] at the time of the accident. The [employing establishment] 

stated that the accident happened one hour after time the [employee’s] end of tour. 

However the wife said he called her to tell her that he was working overtime on 

that day. The request under the Freedom of Information Act (FOIA) that the 

[employing establishment] provide the [employee’s] clock rings for the day in 

question, any video of the parking lot for the hours in question, and any incident 

reports that pertain to the incident. The [employing establishment] has refused to 

provide the information requested sighting FOIA Exemption 6. As a result of the 

[employing establishment]’s refusal the weight of the best evidence is the 

[employee] worked overtime on the day in question and he was still on the 

premise[s], this case needs to be accepted.”6

In a March 11, 2015 decision, OWCP denied appellant’s request for further review of the 

merits of her claim finding her request was untimely filed and failed to demonstrate clear 

evidence of error. It noted that appellant’s reconsideration request was untimely as it was filed 

on December 11, 2014, more than one year after OWCP’s last merit decision dated 

March 7, 2013. OWCP indicated that appellant’s unsupported claim that the employee was 

working overtime at the time of his February 7, 2012 death did not show clear evidence of error 

in the March 7, 2013 decision. 

LEGAL PRECEDENT 

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

claimant must file his or her application for review within one year of the date of that decision.7

 

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

abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.8

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

was untimely filed. When an application for review is untimely filed, it must nevertheless 

 5

 Appellant submitted additional documents concerning attempts to obtain information under the FOIA. 

6

 Appellant submitted various documents concerning attempts to obtain information under the FOIA. 

7

 20 C.F.R. § 10.607(a). 

8

 5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 
5

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

error.”9 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for 

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

the claimant’s application for review shows “clear evidence of error” on the part of OWCP.10

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

which was decided by OWCP.11 The evidence must be positive, precise, and explicit and must 

manifest on its face that OWCP committed an error.12 Evidence which does not raise a 

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

clear evidence of error.13 It is not enough merely to show that the evidence could be construed 

so as to produce a contrary conclusion.14 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.15

ANALYSIS 

 In its March 11, 2015 decision, OWCP properly determined that appellant filed an 

untimely request for reconsideration. Appellant’s reconsideration request was filed on 

December 11, 2014, more than one year after OWCP’s March 7, 2013 decision, and therefore 

she must demonstrate clear evidence of error on the part of OWCP in issuing this decision. In its 

March 7, 2013 decision, OWCP denied appellant’s survivor benefits claim as it had not been 

shown that the employee was in the performance of duty at the time of his February 7, 2012 

death. 

In the request for reconsideration, appellant’s representative indicated that appellant had 

unsuccessfully attempted to obtain additional evidence concerning the events of February 7, 

2012, including the employee’s clock rings and video surveillance evidence, and asserted that, 

therefore, it must be accepted that the employee was working overtime at the time of his death 

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

10 20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 

2.1602.5a (October 2011). OWCP procedure further provides, “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 a 

mistake. For example, a claimant provides proof that a schedule award was miscalculated, such as a marriage 

certificate showing that the claimant 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.” 

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

12 20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991). 

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

14 See Leona N. Travis, supra note 12. 

15 See Nelson T. Thompson, 43 ECAB 919, 922 (1992). 
6

and was in the performance of duty.16 The submission of this argument does not show clear 

evidence of error in OWCP’s March 7, 2013 decision. Appellant did not submit any support for 

her argument that “the best evidence” showed that the employee was working overtime at the 

time of his death.17 Her unsupported claim that the employee was working overtime at the time 

of his February 7, 2012 death is not the type of positive, precise, and explicit evidence which 

would manifest on its face that OWCP committed error in its March 7, 2013 decision. 

For these reasons, the evidence and argument submitted by appellant does not raise a 

substantial question concerning the correctness of OWCP’s March 7, 2013 decision and OWCP 

properly determined that appellant did not show clear evidence of error in that decision. 

CONCLUSION 

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

review of the merits of her claim on the grounds that her request was untimely filed and failed to 

demonstrate clear evidence of error. 

 16 Appellant submitted documents regarding her attempt to obtain information under the FOIA. Appellant’s 

daughter had indicated that the employee called appellant on February 6, 2012 and told her that he was working 

overtime. 

17 On appeal, appellant’s representative provided a similar argument regarding the claim that the employee was 

working overtime. 
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ORDER 

 IT IS HEREBY ORDERED THAT the March 11, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 19, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board