United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., Appellant

and

U.S. POSTAL SERVICE, ROSELAND POST 

OFFICE, Chicago, IL Employer

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Docket No. 17-1682

Issued: January 18, 2018

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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On August 1, 2017 appellant filed a timely appeal from a February 27, 2017 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit 

decision was a Board decision dated December 15, 2006, which became final after 30 days of 

issuance and is not subject to further review.1 As there was no merit decision by OWCP within 

180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of 

this case.

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of 

the merits of her claim, pursuant to 5 U.S.C. § 8128(a). 

 

1 20 C.F.R. § 501.6(d); see D.A., Docket No. 08-1217 (issued October 6, 2008).

2 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY

This case has previously been before the Board.3 In the most recent appeal, by decision 

issued December 14, 2015,4the Board affirmed a nonmerit decision of OWCP dated June 10, 

2015, which denied appellant’s April 8, 2015 request for an oral hearing before a representative 

of OWCP’s Branch of Hearings and Review. In support of her April 8, 2015 request for an oral 

hearing, appellant submitted a January 29, 2015 letter from Dr. Christian Altman, an 

anesthesiologist. She also submitted January 26, 2015 pulmonary function test results without 

interpretation and a computerized tomography (CT) scan of the chest which demonstrated

minimal interstitial scarring and three micronodules. The Board found that appellant was not 

entitled to a hearing as a matter of right as she had previously requested reconsideration under 

5 U.S.C. § 8128(a) with regard to OWCP’s May 22, 2006 denial of her occupational disease 

claim for a respiratory condition. OWCP’s May 22, 2006 decision was the only merit decision

issued by OWCP in this claim.5 The Board further found that OWCP properly exercised its 

discretion in denying appellant’s request for a hearing as the issue in the case could also be 

pursued through a request for reconsideration and the submission of additional evidence. The 

facts and circumstances of the claim as set forth in the Board’s prior decision are hereby 

incorporated by reference.

On November 29, 2016 appellant requested reconsideration with OWCP of the Board’s 

December 14, 2015 decision. She contended that OWCP erred in denying her February 14, 2015 

request for reconsideration as Dr. Altman’s report and the two imaging studies were new, 

relevant, and pertinent evidence meeting the requirements of 20 C.F.R. § 10.606(b)(3). 

Appellant also asserted that the Board had erred by affirming OWCP’s denial of her request for 

reconsideration. She also argued that OWCP did not develop the medical evidence in her claim 

as she had not been referred for a second opinion examination. Appellant referred generally to 

sections of OWCP’s regulations at 20 C.F.R. § 10.126, OWCP’s procedures, and various Board 

precedents regarding OWCP’s duty to see that justice is done. Appellant did not submit 

additional evidence in support of her November 29, 2016 request.

By decision dated February 27, 2017, OWCP denied reconsideration of the Board’s 

December 14, 2015 decision, finding that appellant’s November 29, 2016 letter was not relevant 

and pertinent new evidence. It found that appellant’s assertions were insufficient to warrant 

reopening her claim for a merit review.

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation. The Secretary of Labor may review an 

 

3 Docket No. 06-1980 (issued December 15, 2006); Docket No. 09-2374 (issued June 17, 2010); Docket No. 15-

1679 (issued December 14, 2015).

4 Docket No. 15-1679 (issued December 14, 2015). 

5 The Board’s December 15, 2006 merit decision affirmed OWCP’s May 22, 2006 decision.
3

award for or against payment of compensation at any time on his or her own motion or on 

application.6

OWCP, through regulations, has imposed limitations on the exercise of its discretionary 

authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that 

an application for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.7

OWCP procedures require a review of the file to determine whether the application for 

reconsideration was received within one year of a merit decision. The one-year period begins on 

the date of the original merit decision. However, a right to reconsideration within one year 

accompanies any subsequent merit decision on the issues. This includes any hearing or review 

of the written record decision, any denial of modification following reconsideration, any merit 

decision by the Board, and any merit decision following action by the Board, but does not 

include prerecoupment hearing decisions.8 Timeliness is determined by the document receipt 

date of the reconsideration request (the received date in the Integrated Federal Employees’

Compensation System). If the request for reconsideration has a document received date greater 

than one year, the request must be considered untimely.9

OWCP will consider an untimely application only if the application demonstrates clear 

evidence of error on the part of it in its most recent merit decision. The application must 

establish, on its face, that such decision was erroneous.10 

OWCP procedures note that 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 that a schedule award was miscalculated). 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 The Board makes an independent determination of whether a claimant has 

demonstrated clear evidence of error on the part of OWCP.12

 

6 5 U.S.C. § 8128(a). 

7 20 C.F.R. § 10.607(a).

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

9

Id.

10 20 C.F.R. § 10.607.

11 Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.1602.5(a) (February 2016); J.S., Docket No. 16-

1240 (issued December 1, 2016).

12 See D.S., Docket No. 17-0407 (issued May 24, 2017).
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ANALYSIS

The Board finds that this case is not in posture for decision and must be remanded to 

OWCP for the application of the appropriate standard of review.13 

Following requests for reconsideration and OWCP nonmerit decisions denying those 

requests, on April 8, 2015, appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review. OWCP denied appellant’s April 8, 2015 request for 

an oral hearing by nonmerit decision dated June 10, 2015. Appellant subsequently appealed to 

the Board. By decision dated December 14, 2015, the Board affirmed OWCP’s June 10, 2015 

nonmerit decision. Appellant requested reconsideration of the Board’s December 14, 2015 

decision by letter received by OWCP on November 29, 2016.14 In a February 27, 2017 decision, 

OWCP denied appellant’s reconsideration request. 

The Board finds that in its February 27, 2017 decision, OWCP erroneously applied the 

standard of review for timely requests for reconsideration as set forth in 5 U.S.C. § 8128(a) and 

20 C.F.R. § 10.606(b)(3). OWCP’s procedures provide that a request for reconsideration must 

be received within one year of the date of the most recent merit decision.15 The last merit 

decision of record in this case was the Board’s December 15, 2006 decision. As appellant’s 

November 29, 2016 request for reconsideration was received more than one year after the

December 15, 2006 merit decision, the request was untimely filed.

16

 The appropriate standard of 

review for untimely reconsideration requests is the clear evidence of error standard.

17

 As such, 

the Board will remand the case to OWCP for application of the clear evidence of error standard 

as set forth in 20 C.F.R. § 10.607(b).18

Following any necessary further development, OWCP shall issue an appropriate decision. 

CONCLUSION

The Board finds that the case is not in posture for decision. 

 

13 See P.L., Docket No. 17-0146 (issued October 24, 2017); K.K., Docket No. 16-1187 (issued February 7, 2017); 

E.B., Docket No. 16-0746 (issued June 1, 2016). 

14 The Board notes that OWCP is not authorized to review Board decisions. Board decisions are not subject to 

review except by the Board and they become final after 30 days. Although the December 15, 2006 Board decision 

was the last merit decision of record, OWCP’s June 22, 2005 initial denial is the appropriate subject of possible 

modification by OWCP. See 20 C.F.R. § 501.6(d). 

15 Supra note 8.

16 T.E., Docket No. 16-0574 (issued August 18, 2016); see also John W. O’Connor, 42 ECAB 797 (1991). 

17 See Donna M. Campbell, 55 ECAB 241 (2004).

18 Dewayne C. Davis, Docket No. 94-2346 (issued August 14, 1997).
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ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’

Compensation Programs dated February 27, 2017 is set aside, and the case is remanded for 

further action consistent with this decision.

Issued: January 18, 2018

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