United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.D., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Albuquerque, NM, 

Employer 

__________________________________________ 

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Docket No. 17-1074 

Issued: August 28, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

On April 17, 2017 appellant filed a timely appeal from a March 30, 2017 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The Board docketed the 

appeal as No. 17-1074. 

The March 30, 2017 decision found that appellant’s request for reconsideration was 

untimely and failed to demonstrate clear evidence of error with respect to OWCP’s 

November 23, 2015 merit decision.1

 OWCP acknowledged that it received appellant’s request 

for reconsideration on November 22, 2016, but calculated it to be “366 days” after the 

November 23, 2015 merit decision. Consequently, it considered appellant’s November 22, 2016 

request to be untimely pursuant to 20 C.F.R. § 10.607(a). 

 1

 Appellant’s claim has been accepted for right knee sprain and medial meniscus tear, which arose on 

July 2, 2013. In its November 23, 2015 merit decision, OWCP declined to expand appellant’s traumatic injury 

claim to include an alleged bilateral shoulder consequential injury. 
2

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

matter of right.2 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.3 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 

sought.4 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.”5 

When a request is timely filed, a different standard of review applies. A timely application for 

reconsideration, including all supporting documents, must set forth arguments and contain 

evidence that either: (i) shows that OWCP erroneously applied or interpreted a specific point of 

law; (ii) advances a relevant legal argument not previously considered by OWCP; or 

(iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.6 

When a timely application for reconsideration does not meet at least one of the above-noted 

requirements, OWCP will deny the request for reconsideration without reopening the case for a 

review on the merits.7

 

Appellant had one year from the November 23, 2015 merit decision to timely request 

reconsideration. One year from November 23, 2015 was November 23, 2016. As OWCP 

received appellant’s request for reconsideration on November 22, 2016 her request was timely 

pursuant to 20 C.F.R. § 10.607(a).8

 Because OWCP erred in finding appellant’s request 

untimely and applied the wrong standard of review the March 30, 2017 decision shall be set 

aside, and the case remanded for proper consideration of appellant’s timely request for 

reconsideration pursuant to 20 C.F.R. § 10.606(b)(3). 

 2

 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/her] own motion or on application.” 5 U.S.C. § 8128(a). 

3

 20 C.F.R. § 10.607. 

4 Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

“received” by OWCP within one year of OWCP’s decision for which review is sought. 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. 

5

 20 C.F.R. § 10.607(b). To establish 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). 

6

 20 C.F.R. § 10.606(b)(3). 

7 Id. § 10.608(a), (b). 

8 See W.H., Docket No. 14-0092 (issued April 28, 2014); Federal (FECA) Procedure Manual, supra note 4. 
3

IT IS HEREBY ORDERED THAT the March 30, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this order of the Board. 

Issued: August 28, 2017 

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