United States Department of Labor

Employees’ Compensation Appeals Board

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E.P., Appellant

and

DEPARTMENT OF THE AIR FORCE, ROBINS 

AIR FORCE BASE, Warner Robins, GA, 

Employer

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Docket No. 18-0423

Issued: September 11, 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 December 24, 2017 appellant filed a timely appeal from a December 18, 2017 nonmerit 

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

elapsed from the last merit decision dated March 15, 1991, 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 this case.2

ISSUE

The issue is whether OWCP properly found that appellant’s request for reconsideration 

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

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the December 18, 2017 nonmerit decision, OWCP received additional evidence. 

Appellant also submitted new evidence with his appeal to the Board. However, the Board’s jurisdiction is limited to 

the evidence that was of record at the time OWCP issued its final decision. Thus, the Board is precluded from 

reviewing this additional evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).
2

FACTUAL HISTORY

Appellant has previously appealed to the Board on multiple occasions. The facts and 

circumstances of the case as presented in the prior Board decisions are incorporated herein by 

reference. The relevant facts are as follows.

On July 25, 1988 appellant, then a 38-year-old computer operator, filed a traumatic injury 

claim (Form CA-1) alleging that on July 14, 1988 he injured his back when he tripped and fell 

over a box while at work. OWCP accepted the claim for a low back strain. 

Appellant filed a recurrence of disability claim (Form CA-2a) on July 3, 1989 alleging a 

recurrence of his July 14, 1988 employment injury. OWCP denied this claim on January 16, 1990, 

finding that he failed to submit evidence sufficient to establish that his current back condition was 

causally related to his July 14, 1988 employment injury. Appellant filed a timely request for 

reconsideration on November 19, 1990. On March 15, 1991 OWCP granted his reconsideration 

request, reviewed the merits of his claim, but denied modification of the prior decision. It found 

that the medical evidence then of record failed to demonstrate that the claimed condition or 

disability for work was causally related to appellant’s accepted employment injury.

The March 15, 1991 decision was OWCP’s most recent final decision on the merits of 

appellant’s recurrence claim. The statement of appeal rights accompanying OWCP’s March 15, 

1991 merit decision notified appellant that any further request for reconsideration must be made 

within one year of the date of that decision, i.e., within one year of March 15, 1991.

In a letter received by OWCP on December 5, 2017, appellant requested reconsideration

of the denial of his recurrence claim. He argued that medical evidence from the Veterans 

Administration established his mental incapacity and established good reason for his failure to file 

a timely request for reconsideration. Appellant contended that OWCP committed error in the 

handling of his claim and discrediting medical evidence he had submitted. He further argued that 

he never completely healed from his accepted employment injury, that he developed additional 

conditions, and that he is entitled to wage-loss compensation. 

By decision dated December 18, 2017, OWCP determined that appellant’s request for 

reconsideration was untimely filed and failed to demonstrate clear evidence of error in its denial 

of his recurrence claim. It noted that the record was devoid of any evidence showing that he was 

mentally incompetent and incapable of filing a timely request for reconsideration of the March 15, 

1991 merit decision. 

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 

 

3 See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-0440 (issued March 16, 2009).
3

decision for which review is sought.4 Timeliness is determined by the document receipt date (i.e., 

the “received date” in OWCP’s Integrated Federal Workers’ Compensation System).5 Imposition 

of this one-year filing limitation does not constitute an abuse of discretion.6

When an application for review is untimely, OWCP undertakes a limited review to 

determine whether the application demonstrates clear evidence that OWCP’s final merit decision 

was in error.7 OWCP procedures provide that OWCP will reopen a claimant’s case for merit 

review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the 

claimant’s application for review demonstrates “clear evidence of error” on the part of OWCP.

8

 

In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears 

on the prior evidence of record.9

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

issue which was decided by OWCP.

10

 The evidence must be positive, precise, and explicit and 

must be manifest on its face that OWCP committed an error.11 Evidence which does not raise a 

substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate 

clear evidence of error.12 It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion.13 This entails a limited review by OWCP of how the evidence 

submitted with the reconsideration request bears on the evidence previously of record and whether 

the new evidence demonstrates clear error on the part of OWCP.

14

 To demonstrate clear evidence 

of error, 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 

 

4 20 C.F.R. § 10.607(a).

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

6 E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

7 B.W., Docket No. 10-0323 (issued September 2, 2010); M.E., 58 ECAB 309 (2007); Leon J. Modrowski, 55 ECAB 

196 (2004); Thankamma Mathews, 44 ECAB 765 (1993); Jesus D. Sanchez, 41 ECAB 964 (1990).

8 See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “OWCP will consider an untimely 

application for reconsideration 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.” 20 C.F.R. 

§ 10.607(b).

9 See Nelson T. Thompson, 43 ECAB 919 (1992).

10 See Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992).

11 See Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991).

12 See Leon J. Modrowski, supra note 7; Jesus D. Sanchez supra note 7. 

13 See Leona N. Travis, supra note 11.

14 See supra note 9.
4

question as to the correctness of OWCP’s decision.15 The Board makes an independent 

determination of whether a claimant has submitted clear evidence of error on the part of OWCP

such that OWCP abused its discretion in denying merit review in the face of such evidence.16

ANALYSIS

The Board finds that appellant’s request for reconsideration was untimely filed and failed 

to demonstrate clear evidence of error. 

Appellant seeks reconsideration of a March 15, 1991 merit decision denying modification 

of his claim that he sustained a recurrence of disability on July 3, 1989 as a result of his accepted 

July 14, 1988 employment injury. He continues to disagree with the denial of his claim and filed 

his current request for reconsideration on December 5, 2017. Because OWCP received his request 

more than one year after OWCP’s March 15, 1991 merit decision, the Board finds that appellant’s 

request was untimely filed. Thus, appellant must demonstrate clear evidence of error on the part 

of OWCP in denying his claim.

17

The Board finds that appellant’s request for reconsideration fails to demonstrate clear 

evidence of error. Appellant again argued that he had never healed from his original injury, that 

OWCP mishandled his claim, and that he was mentally incapacitated during the time period when 

his request for reconsideration should have been filed. He submitted no evidence with his 

December 5, 2017 letter requesting reconsideration which demonstrates on its face that OWCP’s 

March 15, 1991 decision was erroneous in finding that a recurrence of disability had not been 

established. Appellant also submitted no medical evidence which establishes that he was mentally 

incapacitated at any point during the appeal process. The Board will, therefore, affirm the 

December 18, 2017 decision denying appellant’s request.

Appellant has not raised an argument or submitted any evidence that is manifest on its face 

that OWCP committed an error in denying appellant’s claim. He has not provided evidence of 

sufficient probative value to raise a substantial question as to the correctness of OWCP’s decision. 

Thus, the evidence is insufficient to demonstrate clear evidence of error.18

On appeal appellant contends that the medical evidence of record is sufficient to establish 

his recurrence claim and entitlement to wage-loss compensation. He also notes that he sustained 

three employment injuries involving his back and had undergone surgeries due to his back. 

Appellant also contends error by OWCP in the handling of his recurrence claim. As explained 

above, appellant has failed to demonstrate clear error on the part of OWCP in denying his 

 

15 Leon D. Faidley, Jr., supra note 6. 

16 See George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 

41 ECAB 458 (1990).

17 20 C.F.R. § 10.607(b). See S.D., 58 ECAB 713 (2007); Jack D. Johnson, 57 ECAB 593 (2006).

18 See M.B., Docket No. 17-1505 (issued January 9, 2018).
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recurrence claim in its last merit decision on that issue. Therefore he failed to demonstrate clear 

evidence of error.

CONCLUSION

OWCP properly found that appellant’s request for reconsideration was untimely filed and 

failed to demonstrate clear evidence of error.

ORDER

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

Programs dated December 18, 2017 is affirmed.

Issued: September 11, 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