United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.D., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

U.S. COAST GUARD, Warwick, RI, Employer 

__________________________________________ 

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Docket No. 16-1243 

Issued: January 25, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 25, 2016 appellant filed a timely appeal from a January 19, 2016 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed from OWCP’s last merit decision dated April 4, 2012 to 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 the 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 before the Board.2 The facts and circumstances as set forth 

in prior Board decisions are incorporated herein by reference. On January 14, 1992 appellant, 

then a 49-year-old construction representative, sustained injuries to his neck and back when he 

slipped on a wet dock at work. He stopped work on January 16, 1992 and did not return. 

Effective August 9, 1992, appellant elected a disability retirement annuity from the Office of 

Personnel Management (OPM). OWCP accepted the claim for cervical and lumbosacral sprains 

and paid compensation benefits until the election of OPM benefits. 

On February 27, 2006 appellant filed a claim for compensation (Form CA-7) for 

disability commencing August 9, 1992. On January 5, 2007 he elected to receive wage-loss 

compensation from OWCP retroactive to August 9, 1992, in lieu of OPM benefits. Appellant 

asserted that his disability from work was due to his accepted condition. 

On June 1, 2007 OWCP denied appellant’s claim for compensation due to insufficient 

medical evidence to establish his claim. After a reconsideration request it conducted a merit 

review, but denied modification of the claim on September 27, 2007. Appellant appealed to the 

Board. On May 13, 2008 the Board issued an order remanding the case to OWCP for proper 

assemblage of the record and a de novo decision as the case record was missing materials from 

August 4, 1995 through December 14, 2004.3 

After determining no records were missing, OWCP reissued its decision on December 1, 

2008 denying wage-loss compensation commencing August 9, 1992. Appellant appealed to the 

Board. By decision dated October 22, 2009, the Board affirmed the December 1, 2008 decision, 

finding that appellant had not met his burden of proof to establish wage-loss compensation 

beginning August 9, 1992.4 

Appellant requested reconsideration. In decisions dated January 14, 2011 and April 4, 

2012, OWCP reviewed the case on its merits and denied modification of the wage-loss 

compensation determination. On October 26, 2012 appellant appealed the April 4, 2012 decision 

to the Board. On December 20, 2012 the Board issued an order dismissing his appeal as it was 

untimely filed and the Board lacked jurisdiction to review the appeal.5

 

On March 29, 2013 appellant requested reconsideration with OWCP of the April 4, 2012 

decision. The request was received by OWCP on April 5, 2013. By decision dated May 8, 2013, 

OWCP denied appellant’s request as it was untimely filed and failed to demonstrate clear 

evidence of error. Appellant disagreed and again requested reconsideration. On August 14, 

 2

 Docket No. 08-278 (issued May 13, 2008), Docket No. 09-519 (issued October 22, 2009), Docket No. 13-169 

(issued December 20, 2012), Docket No. 14-132 (issued June 11, 2014), and Docket No. 15-0865 (issued 

October 6, 2015). 

3 Id.

4 Id.

5 Id.
3

2013 OWCP denied his request for reconsideration as it was untimely filed and failed to 

demonstrate clear evidence of error. Appellant appealed to the Board. By decision dated 

June 11, 2014, the Board affirmed the May 8 and August 14, 2013 OWCP decisions.6 

Appellant again requested reconsideration on June 26, 2014. Evidence received in 

support of this reconsideration request included a May 22, 2013 letter from the U.S. Postal 

Service apologizing for delayed delivery of his reconsideration request mailed on March 29, 

2013, and confirming delivery of that letter to an OWCP mailroom in London, Kentucky, on 

April 4, 2013. Also submitted was a printout showing that appellant’s certified mail item was 

delivered on April 4, 2013 in London, Kentucky, and a copy of correspondence between 

appellant and the office of Senator Elizabeth Warren. 

By decision dated September 29, 2014, OWCP denied appellant’s request for 

reconsideration. It found that, while he had established that the March 29, 2013 request for 

reconsideration was delivered to OWCP’s mailroom on April 4, 2013, it was not received by 

OWCP’s district office until April 5, 2013, and was, therefore, untimely filed. OWCP further 

found that appellant did not submit any relevant and pertinent new evidence with his most recent 

reconsideration request that showed it erroneously applied or interpreted a specific point of law, 

or advanced a relevant legal argument not previously considered. Appellant appealed to the 

Board. 

By decision dated October 6, 2015, the Board set aside OWCP’s September 29, 2014 

decision and remanded the case for further review under the clear evidence of error standard. 

The Board found that OWCP received appellant’s latest request for reconsideration on June 26, 

2014, which was more than a year after the latest merit decision dated April 4, 2012. The Board 

further found that OWCP applied the wrong standard of review to the untimely request for 

reconsideration.7

By decision dated January 19, 2016, OWCP denied appellant’s request for 

reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of 

error. It noted that he had not submitted any new evidence pertaining to the issue of his claim for 

compensation since the last merit decision. 

LEGAL PRECEDENT 

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.8

 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.9 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is 

 6 Id.

7 Id.

8

 This section provides in pertinent part: “[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.” 5 U.S.C. § 8128(a). 

9

 20 C.F.R. § 10.607. 
4

sought.10 OWCP will consider an untimely request for reconsideration only if the request 

demonstrates “clear evidence of error” on the part of OWCP in its “most recent merit 

decision.”11 The request must establish on its face that such decision was erroneous.12 To 

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

was decided by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be 

positive, precise, and explicit and it must be apparent on its face that OWCP committed an error. 

See Leona N. Travis, 43 ECAB 227 (1991). It is not enough to merely show that the evidence 

could be construed to produce a contrary conclusion. Evidence that does not raise a substantial 

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

evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence submitted must 

not only be of sufficient probative value to create a conflict in medical opinion or establish a 

clear procedural error, but must be of sufficient probative value to prima facie shift the weight of 

the evidence in favor of the claimant and raise a substantial question as to the correctness of 

OWCP’s decision. Thankamma Mathews, 44 ECAB 765, 770 (1993). Where a request is 

untimely and fails to present any clear evidence of error, OWCP will deny the request for 

reconsideration without reopening the case for a review on the merits.13

ANALYSIS 

The last merit decision of record is dated April 4, 2012. When the case was last on 

appeal, the Board determined that appellant’s latest request for reconsideration, which OWCP 

received on June 26, 2014 was untimely pursuant to 20 C.F.R. § 10.607(a), and therefore, subject 

to the clear evidence of error standard.14 Since the Board’s prior decision, appellant has failed to 

present any additional evidence or argument that would warrant revisiting the issue of whether 

the current June 26, 2014 request for reconsideration was timely filed. Accordingly, the Board 

shall focus on whether appellant demonstrated clear evidence of error with respect to OWCP’s 

latest merit decision denying appellant’s claim for wage-loss compensation commencing 

August 9, 1992. 

In his June 26, 2014 request for reconsideration, appellant focused exclusively on the 

timeliness issue and did not articulate any particular basis for awarding wage-loss compensation 

retroactive to August 9, 1992. OWCP subsequently received August 12, 2014 correspondence 

between appellant and his U.S. Senator. This information, however, is not relevant to the issue 

of whether OWCP erred in denying appellant’s claim for wage-loss compensation commencing 

 10 Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 

(February 2016). Timeliness is determined by the document receipt date of the request for reconsideration as 

indicated by the “received date” in the Integrated Federal Employees’ Compensation System (iFECS). Id. at 

Chapter 2.1602.4b. 

11 Id. at § 10.607(b). 

12 Id.

13 Id. at § 10.608(b). 

14 See supra note 9. 
5

August 9, 1992. Thus, the evidence of record is insufficient to demonstrate clear evidence of 

error with respect to OWCP’s April 4, 2012 decision. 

On appeal, appellant argues that OWCP completely overlooked the legislation and 

regulations for disability annuitants, which he alleges establishes that he had not recovered or 

been restored to earning capacity by OPM. His argument does not demonstrate clear evidence of 

error as the legal criteria for OPM disability benefits does not similarly control one’s eligibility 

for FECA wage-loss compensation.15 Accordingly, 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. 

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 January 19, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 25, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 15 An employee’s rights and remedies under other statutory authority do not establish entitlement to benefits 

under FECA. See J.F., 59 ECAB 331, 339 (2008).