United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

DAYTON VETERANS MEDICAL CENTER, 

Dayton, OH, Employer 

__________________________________________ 

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Docket No. 16-1082 

Issued: September 6, 2017 

Appearances: Case Submitted on the Record 

Daniel M. Goodkin, Esq., for the appellant1

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 April 27, 2016 appellant, through counsel, filed a timely appeal from an April 11, 

2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision dated December 21, 2012, and 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 the claim. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

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

finding that it was untimely filed and failed to demonstrate clear evidence of error. 

FACTUAL HISTORY 

On October 13, 1993 appellant, then a 34-year-old licensed practical nurse, filed a 

traumatic injury claim (Form CA-1) alleging that on August 31, 1993 she experienced sharp 

pains down both legs, and in her back, hip, and groin after assisting a patient from bed to a 

shower chair, aiding with the shower, and then pushing the patient back to bed. OWCP accepted 

appellant’s claim for low back strain. Appellant returned to light duty on January 21, 1994 and 

stopped work on January 22, 1994. 

To further develop appellant’s claim, OWCP referred appellant to Dr. Gerald Steiman, a 

Board-certified orthopedist, to determine whether appellant was totally disabled from work. In a 

report dated December 9, 1994, Dr. Steiman opined that appellant continued to have injuryrelated residuals which precluded her from returning to her date-of-injury position. In a work 

capacity evaluation dated May 11, 1995, he provided permanent work restrictions noting 

appellant should limit bending, stooping, and crouching, lifting up to 75 to 100 pounds with 

assistance, and lifting under 70 pounds without help. Dr. Steiman noted that appellant could 

return to work full time. 

Appellant was also referred to Dr. Roslyn Pariser, a Board-certified psychiatrist, on 

May 30, 1995, who diagnosed major depression and borderline personality disorder. She opined 

that appellant could perform various functions associated with work including returning to her 

former workplace, communicating and cooperating with coworkers and supervisors, interacting 

with the public, organizing and completing work assignments, and maintaining acceptable levels 

of concentration and pace while at work. 

On June 12, 1995 appellant was referred for vocational rehabilitation services based on 

Dr. Steiman’s and Dr. Pariser’s recommendations and restrictions. 

On July 21, 1995 the employing establishment offered appellant a full-time limited-duty 

position as a licensed practical nurse. The position was within the physical limitations 

established by Dr. Steiman. The position was effective July 31, 1995 with a tour of duty from 

10:00 a.m. to 6:30 p.m. and an annual salary of $25,022.00 a year. Appellant was asked to 

indicate her acceptance/declination of the job offer by completing an enclosed form and 

returning it to the employing establishment by July 28, 1995. 

In a July 24, 1995 letter, OWCP informed appellant that the July 21, 1995 job offer 

constituted suitable work. Appellant was informed that she had 30 days to accept the position or 

to present to OWCP reasons for refusing it. OWCP noted that at the end of the 30-day period, a 

final decision on the matter would be made. If appellant did not accept the employing 

establishment’s offer, the explanation or evidence provided would be considered in determining 

whether her refusal to accept the position was justified. 
3

On July 25, 1995 appellant responded to the employing establishment, but did not 

indicate specifically whether she was accepting or declining the job offer. In handwritten 

notations on the provided form, she noted that since she had been off work for more than one 

year, she was informed that she should have any updated information on her medical restrictions 

noted. Appellant indicated that she had scheduled an appointment with her treating physician for 

an evaluation, and that she would have them review the job offer. 

On August 17, 1995 appellant contacted OWCP by telephone expressing concern about 

the job offer, upset that she was being “forced back to work.” She indicated that she was not 

capable of performing the outlined job duties. OWCP advised that a determination had been 

made that the offered position was within her established work restrictions. Appellant was 

advised that, if she was refusing the job offer, she must submit her reasons for refusal and 

provide any additional medical evidence. She was informed of examples of valid reasons for 

refusing a job offer. On August 22, 1995 appellant contacted OWCP by telephone and indicated 

that the employing establishment offered her a job that her physician found that she could not 

perform. Similarly, on August 24, 1995 she contacted OWCP and reiterated her concerns about 

the job offer. Appellant indicated that the employing establishment would perform a fitness-forduty examination and find the job unsuitable. She believed that the medical evidence submitted 

showed that she could not perform the duties of the position. OWCP directed appellant to put 

her specific objections and concerns in writing so that they could be considered. It provided her 

with a fax number that she could use to submit her objections. 

 In a decision dated August 28, 1995, OWCP terminated appellant’s claim for 

compensation, finding that the evidence of record established that she refused suitable work 

under 5 U.S.C. § 8106(c)(2). It noted that she neither accepted the offered position, nor did she 

provide any specific written objections to the offered position in response to OWCP’s July 24, 

2995 letter. However, OWCP found that her lack of response to the job offer could only be 

construed as a refusal of suitable work. 

By letter dated July 24, 1996, received by OWCP on August 2, 1996, appellant requested 

reconsideration. She indicated that she reported for duty as ordered and spoke to J.W., but was 

informed that the offered position was no longer available. On August 16, 1996 appellant was 

removed from employment because she was physically unable to perform the duties of a licensed 

practical nurse. 

In a decision dated October 18, 1996, OWCP denied appellant’s request for 

reconsideration of the merits of her claim, finding that the evidence submitted was immaterial 

and repetitive. 

 On January 15, 2016 appellant, through counsel, again requested reconsideration of the 

August 28, 1995 termination decision. Counsel asserted that the July 24, 1995 letter from 

OWCP afforded appellant 30 days to either accept the position or present reasons for refusing the 

position, but that the letter provided no direction that the objection had to be in writing. 

Additionally, he noted that she made several telephone calls to discuss her concerns about the job 

offer. Counsel noted that, although appellant put her objections to the job offer in writing on 

August 24, 1995 as verbally advised by OWCP, they were not considered because OWCP states 

that they were not received prior to the August 28, 1995 termination decision. He asserted that 

there were two procedural errors in this matter: appellant was not instructed in the July 24, 1995 
4

letter to submit her reasons of refusal of the job offer in writing and OWCP did not provide 

appellant 15 days to report to work without penalty after considering and rejecting appellant’s 

reasons for refusing suitable work. 

By decision dated April 11, 2016, OWCP denied appellant’s request for reconsideration, 

finding that it was untimely filed and failed to demonstrate clear evidence of error. 

LEGAL PRECEDENT 

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for 

further merit review.3 This discretionary authority, however, is subject to certain restrictions. 

For instance, a request for reconsideration must be received within one year of the date of 

OWCP’s decision for which review is sought.4 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.5

OWCP may not deny a reconsideration request solely because it was untimely filed. 

When a claimant’s application for review is untimely filed, OWCP must nevertheless undertake 

a limited review to determine whether it demonstrates clear evidence of error. If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.6

Clear evidence of error is intended to represent a difficult standard.7

 To demonstrate 

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

decided by OWCP,8 is positive, precise, and explicit, and manifests on its face that OWCP 

committed an error.9 The evidence must not only be of sufficient probative value to create a 

conflict in medical opinion or establish a clear procedural error, but must also shift the weight of 

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

OWCP’s decision for which review is sought. Evidence that does not raise a substantial question 

is insufficient to demonstrate clear evidence of error. It is not enough merely to show that the 

evidence could be construed so as to produce a contrary conclusion. A determination of whether 

the claimant has demonstrated clear evidence of error entails a limited review of how the 

evidence submitted with the reconsideration request bears on the evidence previously of record.10

 3

 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009). 

4

 20 C.F.R. § 10.607(a). 

5 E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

6 M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011). 

7

 D.G., 59 ECAB 455 (2008). 

8 Dean D. Beets, 43 ECAB 1153 (1992). 

9 Leona N. Travis, 43 ECAB 227 (1991). 

10 J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010). 
5

ANALYSIS 

The Board finds that OWCP properly found that appellant’s January 15, 2016 

reconsideration request was untimely filed. As noted, an application for reconsideration must be 

received within one year of the date of OWCP’s decision for which review is sought.11 As 

appellant’s request for reconsideration was not received by OWCP until January 15, 2016, more 

than one year after the August 28, 1995 termination decision, it was untimely filed. 

Consequently, appellant must demonstrate clear evidence of error by OWCP in its 

decision to terminate compensation benefits due to refusal of suitable work. The Board finds 

that appellant failed to demonstrate clear evidence of error on the part of OWCP. In the 

January 15, 2016 reconsideration request, counsel disagreed with OWCP’s termination decision, 

contending that OWCP committed two procedural errors in appellant’s case: first, OWCP did 

not instruct appellant to submit her objections in writing when, in its July 24, 1995 letter, it 

afforded her 30 days to either accept the job offer or present reasons for refusing the position; 

and second, OWCP failed to provide appellant 15 days to report to work without penalty after 

considering and rejecting appellant’s reasons for refusing suitable work.12 

The Board finds that counsel’s allegations are insufficient to demonstrate that OWCP 

erred in its August 28, 1995 termination decision, as the evidence of record fails to establish that 

appellant expressly rejected the July 21, 1995 job offer. The Board notes that OWCP’s July 24, 

1995 letter directed appellant to either accept the position or present reasons for refusing the job. 

Appellant verbally asserted concerns with her ability to perform the job in an August 17, 1995 

telephone call. In additional calls on August 22 and 24, 1995 she expressed fear that she was 

being asked to perform a job her physician did not feel she could perform and that the medical 

evidence showed was not suitable. However, appellant never specifically stated that she was 

refusing the offered position, nor did she provide reasons explaining her refusal. Although 

OWCP verbally directed appellant during the August 24, 1995 telephone call to put her 

objections in writing, and provided a fax number for her use, appellant did not respond by the 

time the termination decision was issued on August 28, 1995. Thus, there was no error in 

OWCP’s issuing the termination decision without affording appellant an additional 15 days to 

accept the offered position.13 

The Board, therefore, finds that appellant’s January 15, 2016 reconsideration request does 

not raise a substantial question as to the correctness of OWCP’s termination decision. Appellant 

has failed to demonstrate clear evidence of error. 

On appeal appellant, through counsel, reiterates the same assertions made before OWCP 

in the January 15, 2016 reconsideration request. As explained above, appellant has not 

demonstrated clear evidence of error in OWCP’s August 28, 1995 termination decision. 

 11 20 C.F.R. § 10.607(a). 

12 Board precedent contemplates that OWCP will advise the employee that the work offered is suitable and 

provides 30 days for the employee to accept the job or present reasons to counter OWCP’s suitability finding. If the 

employee presents such reasons and OWCP finds them unreasonable, OWCP will offer the employee an additional 

15 days to accept the job without penalty. Sandra K. Cummings, 54 ECAB 493 (2003). 

13 Id. 
6

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 April 11, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 6, 2017 

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