United States Department of Labor

Employees’ Compensation Appeals Board

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S.I., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

SHIPYARD, Portsmouth, VA, Employer

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Docket No. 19-0024

Issued: August 15, 2019

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

JANICE B. ASKIN, Judge

On October 2, 2018 appellant filed a timely appeal from an April 25, 2018 decision of the 

Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards 

docketed the appeal as No. 19-0024.

On March 4, 2016 appellant, then a 36-year-old shipwright, filed a traumatic injury claim 

(Form CA-1) for a lower back injury that allegedly arose on February 26, 2016 while in the 

performance of duty. By decision dated April 14, 2016, OWCP denied the claim based on his

failure to meet his burden of proof to establish the medical component of fact of injury. Appellant 

timely requested reconsideration. By decision dated December 5, 2016, OWCP found that, while 

appellant established fact of injury, he had not met his burden of proof to establish that his medical 

condition was causally related to the accepted employment incident. Accordingly, it modified its 

prior decision, but continued to deny appellant’s traumatic injury claim. On March 16, 2018 

appellant requested reconsideration of OWCP’s December 5, 2016 decision.1 By decision dated

April 25, 2018, OWCP denied further merit review pursuant to 5 U.S.C. § 8128(a).

Section 10.607(a) of the implementing regulations provides that a request for 

reconsideration must be received by OWCP within one year of the date of OWCP’s decision for 

 

1 Appellant submitted the appeal request form that accompanied OWCP’s December 5, 2016 merit decision.
2

which review is sought.2 In this case, appellant’s request for reconsideration was not received 

until March 16, 2018, which was more than one year from the December 5, 2016 OWCP decision. 

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.3 The application must 

establish, on its face, that such decision was erroneous.4

The Board has duly considered the matter and finds that appellant’s March 16, 2018 request 

for reconsideration was untimely filed. Because appellant filed an untimely reconsideration 

request, the case will be remanded to OWCP for application of the correct standard for reviewing 

untimely reconsideration requests, the clear evidence of error standard.5 After such further 

development as OWCP deems necessary, it shall issue an appropriate decision.

IT IS HEREBY ORDERED THAT the April 25, 2018 decision is set aside and the case 

is remanded for further action consistent with this order of the Board.

Issued: August 15, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

2 20 C.F.R. § 10.607(a).

3

Id. at § 10.607(b).

4

Id.

5

Id.; see C.B. Docket No. 17-0933 (issued July 17, 2017); A.B., Docket No. 15-0521 (issued June 13, 2016).