United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.M., Appellant 

and 

U.S. AIR FORCE, ROBINS AIR FORCE BASE, 

Forest Park, IL, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0270 

Issued: April 26, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 30, 2015 appellant filed a timely appeal from a November 16, 2015 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The last merit 

decision in this case was a March 10, 1999 decision issued by the Board. As there is no merit 

decision by OWCP within 180 days of the filing of this appeal, the Board lacks jurisdiction to 

review the merits of the case pursuant to the Federal Employees’ Compensation Act1

 (FECA) 

and 20 C.F.R. §§ 501.2(c) and 501.3. 

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

FACTUAL HISTORY 

This case has previously been before the Board. In a decision dated April 5, 1990, the 

Board affirmed an August 19, 1989 schedule award decision.2

 On March 10, 1999 the Board 

affirmed an August 10, 1996 decision finding that appellant did not establish a recurrence of 

disability on March 16, 1989 and a November 13, 1996 decision denying his request to reopen 

his case for further review of the merits under 5 U.S.C. § 8128(a).3

 By decision dated 

October 22, 2002, the Board affirmed March 14 and November 29, 2001 and March 5, 2002 

decisions denying his request for further merit review pursuant to section 8128(a).4

 In decisions 

dated May 2, 2005, October 21, 2009, July 19, 2011, and July 25, 2012, the Board affirmed 

OWCP decisions denying appellant’s requests for reconsideration as they were untimely and did 

not demonstrate clear evidence of error.5

 By order dated December 16, 2013, the Board set aside 

a May 10, 2013 nonmerit decision denying his request for reconsideration under section 8128(a) 

and remanded the case for OWCP to apply the standards for untimely requests for 

reconsideration.6

 On July 1, 2014 the Board affirmed a February 3, 2014 decision finding that 

appellant’s request for reconsideration was untimely filed and failed to demonstrate clear 

evidence of error.7 In a decision dated April 20, 2015, the Board affirmed a December 2, 2014 

nonmerit decision denying his request for reconsideration as it was untimely and did not 

demonstrate clear evidence of error.8 The facts and circumstances of the case as set forth in the 

prior decisions are incorporated herein by reference. 

By letter dated January 27, 2015, OWCP advised appellant that the employing 

establishment had jurisdiction over matters related to his employment. It informed him that it 

did not terminate his compensation for refusing suitable work, but instead stopped his 

compensation when he resumed limited-duty employment on November 5, 1988. After appellant 

stopped work on March 16, 1989 and filed a claim for compensation, OWCP found that he had 

 2

 Docket No. 90-321 (issued April 5, 1990). 

3

 Docket No. 97-670 (issued March 10, 1999). OWCP accepted that appellant, then a 28-year-old mail handler, 

sustained left carpal tunnel syndrome causally related to factors of his federal employment. He returned to limitedduty employment on November 5, 1988 but resigned from work on March 16, 1989 because he did not want to work 

his assigned schedule. On June 19, 1989 the employing establishment terminated appellant’s employment due to his 

failure to report for work. The Board found that the employing establishment did not require him to work outside 

his restrictions and that the medical evidence did not establish that he was disabled from his modified employment. 

4

 Docket No. 02-1032 (issued October 22, 2002). 

5

 Docket No. 04-757 (issued May 2, 2005); Docket No. 09-151 (issued October 21, 2009); Docket No. 10-2320 

(issued July 19, 2011); Docket No. 12-714 (issued July 25, 2012). On January 25, 2010 the Board denied 

appellant’s petition for reconsideration of its July 19, 2011 decision. Order Denying Petition for Reconsideration, 

Docket No. 10-2320 (issued January 25, 2012). On March 1, 2013 the Board dismissed appellant’s appeal of an 

informational letter. Order Dismissing Appeal, Docket No. 12-1967 (issued March 1, 2013). 

6 Order Remanding Case, Docket No. 13-1383 (issued December 16, 2013). 

7

 Docket No. 14-759 (issued July 1, 2014). 

8

 Docket No. 15-426 (issued April 20, 2015). The Board denied appellant’s petition for reconsideration on 

October 27, 2015. Order Denying Petition for Reconsideration, Docket No. 15-0426 (issued October 27, 2015). 
3

not established a recurrence of disability beginning that date, a finding that was affirmed by the 

Board. 

On August 19, 2015 appellant requested reconsideration. He maintained that the 

January 27, 2015 letter from OWCP provided that the employing establishment had jurisdiction 

over employment laws and status, which he asserted constituted a new argument regarding 

whether it impermissibly withdrew his job. Appellant alleged that the employing establishment 

offered him a limited-duty position on July 6, 1998 but then withdrew “the procedural and 

medical guaranteed legal challenges” of the offer by telling him that he had to “take it or leave 

it.” He asserted that OWCP erred in its merit decisions when it failed to indicate that objections 

raised to the job had to be adjudicated prior to the employing establishment withdrawing the 

position. Appellant related that a July 26, 1999 arbitration case established that the employing 

establishment erroneously told him he had no right to protest the job offer and had to accept the 

offered position. 

Appellant resubmitted two pages of a July 26, 1991 labor arbitration panel decision. The 

decision noted that a compensation specialist with the employing establishment advised him that 

he must either take or leave the job of modified custodial offered in November 1988 as she 

believed that he had no other rights under employment laws or the National Agreement. 

In an addendum dated November 3, 2015, appellant related that his allegations were 

relevant to the issue of whether he had established that the employing establishment withdrew 

the limited-duty job offer after he abandoned his positon on March 16, 1989. He asserted that 

after he returned to work in November 1988 and then abandoned his position on March 16, 1989, 

the employing establishment withdrew his appeal rights. Appellant contended that OWCP 

should remand his case for proper findings of fact with rationale. 

By decision dated November 16, 2015, OWCP denied appellant’s request for 

reconsideration as it was untimely filed and failed to demonstrate clear evidence of error. It 

found that he had not submitted evidence supporting his allegations. 

On appeal appellant contends that he submitted evidence to OWCP showing that the 

employing establishment told him that he could take or leave the job offer and thus withdrew 

applicable medical and procedural safeguards. 

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 received within one year of the date of 

OWCP’s decision for which review is sought.10 OWCP will consider an untimely application 

 9 Supra note 1. 

10 20 C.F.R. § 10.607(a). The one-year period begins on the date of the original decision, and an application for 

reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought for 

merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.4 (October 2011). 
4

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.11

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.12 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.13

ANALYSIS 

The Board finds that OWCP properly determined that appellant failed to file a timely 

application for review. OWCP’s procedures provide that the one-year time limitation period for 

requesting reconsideration begins on the date of the original OWCP decision.14 A right to 

reconsideration within one year also accompanies any subsequent merit decision on the issues.15 

The most recent merit decision was the Board’s decision issued March 10, 1999. As OWCP 

received appellant’s request for reconsideration on August 19, 2015 more than one year after the 

most recent merit decision dated March 10, 1999, it was untimely. Consequently, appellant must 

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

OWCP, in its last merit decision dated August 10, 1996, found that appellant did not 

establish a recurrence of disability beginning March 16, 1989 as he did not show that he was 

working outside his restrictions or that he was disabled from his limited-duty employment due to 

his accepted work injury. In a decision dated March 10, 1999, the Board affirmed the August 10, 

1996 decision. In his reconsideration request, appellant contended that OWCP failed to consider 

that the employing establishment withdrew his limited-duty position and informed him that he 

had to take the offered position without explaining his legal rights. As noted by the Board in its 

July 25, 2012 decision, it previously addressed this argument in its March 10, 1999 merit 

 11 20 C.F.R. § 10.607(b). 

12 Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.1602.5(a) (October 2011). 

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

55 ECAB 143 (2003). 

14 20 C.F.R. § 10.607(a). 

15 Robert F. Stone, supra note 13. 

16 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005). 
5

decision affirming OWCP’s finding that he did not establish a recurrence of disability. 

Consequently, this issue, absent further merit review of this issue by OWCP, is res judicata.

17

Appellant also maintained that OWCP erred in its August 19, 1996 decision by failing to 

indicate that objections to the job had to be adjudicated before the employing establishment 

withdrew the position. He noted that the employing establishment had jurisdiction over his 

employment status, as provided by OWCP in its January 27, 2015 letter. The underlying issue in 

the case, however, is whether appellant has established that he sustained a recurrence of 

disability beginning March 16, 1989, the date that he stopped work. In order to demonstrate 

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

by OWCP.18 Appellant’s contention is not relevant to this issue and thus is insufficient to 

demonstrate clear evidence of error. 

Appellant resubmitted two pages from a July 26, 1991 arbitration decision indicating that 

the employing establishment told him that he had to take the job of modified custodian offered 

November 1988. He argued that this established that the employing establishment withdrew his 

procedural rights after he resumed work in November 1988 and abandoned his position on 

March 16, 1989. The Board previously discussed the arbitration decision in its July 1, 2014 

decision, noting that it found that the employing establishment did not violate the National 

Agreement in assigning appellant to the modified position. The resubmission of this evidence is 

insufficient to raise a substantial question as to the correctness of OWCP’s decision.19 Further, 

appellant’s allegation that the employing establishment failed to properly provide him with legal 

protection is not relevant to the issue of whether he established a recurrence of disability 

subsequent to his March 16, 1989 resignation and, consequently, does not demonstrate clear 

evidence of error. 

As the evidence submitted by appellant is insufficient to raise a substantial question as to 

the correctness of OWCP’s last merit decision, he has not demonstrated clear evidence of error.20 

On appeal appellant asserts that he submitted evidence to OWCP showing that the 

employing establishment informed him that he had to take the job and withdrew medical and 

procedural safeguards. As discussed, this evidence does not address the underlying issue of 

whether he met his burden of proof to show that he was disabled from his limited-duty 

employment beginning March 16, 1989 and thus it is insufficient to demonstrate clear evidence 

of error. 

 17 See Robert G. Burns, 57 ECAB 657 (2006); Clinton E. Anthony, Jr., 49 ECAB 476 (1998). A decision of the 

Board is final upon the expiration of 30 days from the date of the decision. 20 C.F.R. § 501.6(d). 

18 See E.M., Docket No. 14-0667 (issued May 7, 2014); Howard Y. Miyashiro, 51 ECAB 253 (1999). 

19 See T.M., Docket No. 15-1571 (issued November 5, 2015). 

20 See Veletta C. Coleman, 48 ECAB 367 (1997). 
6

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 November 16, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 26, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board