United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.N., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, San Diego, CA, Employer

__________________________________________

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Docket No. 21-0274

Issued: July 9, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 14, 2020 appellant filed a timely appeal from a June 18, 2020 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

has elapsed from OWCP’s last merit decision, dated August 7, 2019, to the filing of this appeal, 

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from June 18, 2020, the date of OWCP’s last decision was 

December 15, 2020. Since using December 18, 2020, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is December 14, 2020, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board lacks jurisdiction over the merits of this case.3

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

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decisions and orders are incorporated herein by reference. The relevant facts 

are as follows. 

On August 20, 1998 appellant, then a 39-year-old deportation assistant, filed an 

occupational disease claim (Form CA-2) alleging that she developed bilateral wrist and elbow 

pain, numbness in fingers, and left shoulder pain due to factors of her federal employment. OWCP 

accepted her claim for bilateral wrist, elbow, and shoulder sprains and subsequently expanded 

acceptance of her claim to include bilateral carpal tunnel syndrome.5

On March 12, 2004 OWCP expanded the acceptance of appellant’s claim to include 

cervical radiculopathy, resolved. 

In April 2013 appellant filed claims for wage-loss compensation (Form CA-7) for

disability from work during the periods January 1 through December 31, 2011, January 1 through 

July 31, 2012, October 24 through December 31, 2012, and January 1 through March 31, 2013.

6

 

OWCP subsequently determined that a conflict in the medical opinion evidence existed 

regarding whether her work-related cervical condition had resolved. On June 13, 2014 it referred 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the June 18, 2020 decision, appellant submitted additional evidence to OWCP.

However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the 

case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered 

by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id

4 Order Remanding Case, Docket No. 05-844 (issued September 1, 2005); Order Remanding Case, Docket No. 

09-2350 (issued February 4, 2010); Order Remanding Case, Docket No. 10-1810 (issued May 25, 2011); Docket No. 

12-1056 (issued December 18, 2012); Docket No. 13-2097 (issued September 16, 2014); Docket No. 16-895 (issued 

December 16, 2016); Docket No. 18-1613 (issued April 29, 2020).

5

In March 2001 appellant resigned from federal employment. In June 2003 she returned to federal employment 

with the U.S. Attorney’s Office. The record indicates that appellant was removed from employment, effective 

May 11, 2010.

6 Appellant resubmitted these Forms CA-7 with the employing establishment’s certification on June 14, 2013.
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appellant, along with a statement of accepted facts (SOAF), to Dr. Harry Marinow, a Boardcertified orthopedic surgeon, for an impartial medical examination in order to resolve the conflict. 

In a memorandum of telephone call (Form CA-110) dated July 2, 2014, Dr. Marinow’s 

office informed OWCP that appellant did not attend the impartial medical examination scheduled 

for July 1, 2014. 

By decision dated July 29, 2014, OWCP suspended appellant’s entitlement to wage-loss 

compensation and medical benefits, effective that date, under 5 U.S.C. § 8123(d) because she 

failed to report to the examination on July 1, 2014 as directed. 

On August 11, 2014 appellant filed a Form CA-7 claiming wage-loss compensation for the 

period July 1 through 31, 2014. 

On July 3, 2015 appellant requested reconsideration of OWCP’s denial of wage-loss 

compensation benefits for the periods January 1 through July 31, 2012 and July 29 through

September 22, 2014. 

On July 13, 2015 appellant filed a claim for a schedule award (Form CA-7). By decision 

dated October 20, 2015, OWCP denied appellant’s schedule award claim, finding that the medical 

evidence of record was insufficient to establish permanent impairment of a scheduled member or 

function of the body as a result of her accepted employment injuries.

By decision dated September 30, 2015, OWCP denied appellant’s July 3, 2015 request for 

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

Appellant appealed to the Board regarding the September 30 and October 20, 2015 

decisions. By decision dated December 16, 2016,7the Board affirmed OWCP’s September 30, 

2015 nonmerit decision, finding that OWCP properly denied further merit review of appellant’s 

claim regarding her wage-loss compensation for the periods January 1 through July 31, 2012 and 

July 29 through September 22, 2014, pursuant to 5 U.S.C. § 8128(a). The Board also affirmed the 

October 20, 2015 OWCP decision, which denied appellant’s schedule award claim.

On November 20, 2017 OWCP expanded the acceptance of appellant’s claim to include 

other cervical disc degeneration at a C4-5 level. 

On December 15, 2017 appellant requested reconsideration of the December 16, 2016 

decision.

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 She maintained that she had submitted new evidence in support of her wage-loss 

compensation claims. Appellant asserted that a June 22, 2015 OWCP letter indicated that OWCP 

 

7 Docket No. 16-0895 (issued December 16, 2016). 

8 Although appellant claimed to be filing a request for reconsideration from the Board’s December 16, 2016 

decision, OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to 

the subject matter appealed and such decisions and orders are not subject to review, except by the Board. See 20 C.F.R.

§ 501.6(d). Accordingly, the September 30, 2015 OWCP decision is the appropriate subject of possible modification 

by OWCP. Appellant also requested reconsideration of the September 16, 2014 Board decision, which affirmed the 

June 10, 2013 OWCP decision, finding that OWCP did not abuse its discretion by denying appellant’s request for 

reimbursement of travel expenses on May 22, 2012. 
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had erred by not timely accepting her cervical condition. She also contended that OWCP erred in 

suspending her monetary compensation for the period July 29 through September 22, 2014. 

Appellant explained that she had not obstructed the impartial medical examination, but had asked 

for more time so that she could obtain additional medical reports. She alleged that OWCP failed 

to assist her in obtaining her medical records and denied her access to her medical records relevant 

to her wage-loss compensation claims. 

By decision dated March 15, 2018, OWCP denied appellant’s December 15, 2017 request 

for reconsideration of the merits of her claim for wage-loss compensation for the periods in 2012 

and 2014 and her schedule award claim, pursuant to 5 U.S.C. § 8128(a).

Appellant appealed the March 15, 2018 decision to the Board. 

By decision dated April 29, 2020, the Board set aside the March 15, 2018 decision in part

and remanded the case for OWCP to apply the proper standard of review for an untimely request

for reconsideration regarding appellant’s entitlement to wage-loss compensation for periods in 

2012 and 2014.

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 The Board noted that as more than one year had elapsed from OWCP’s last merit 

decision on July 29, 2014 regarding appellant’s wage-loss compensation claim to the filing of 

appellant’s reconsideration request on December 5, 2017, OWCP should have applied the more 

stringent clear evidence of error standard. The Board also affirmed the March 15, 2018 decision,

in part, finding that OWCP properly denied further merit review of appellant’s claim regarding her 

claim for a schedule award pursuant to 5 U.S.C. § 8128(a). 

Following the Board’s decision, OWCP issued a June 18, 2020 decision denying 

appellant’s December 15, 2017 reconsideration request, finding that it was untimely filed and 

failed to demonstrate clear evidence of error. The June 18, 2020 decision simply noted: “You did 

not present clear evidence of error.... The basis for this decision is.” 

LEGAL PRECEDENT

To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a 

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

decision for which review is sought.10 Timeliness is determined by the document receipt date of 

the request for reconsideration as is indicated by the received date in the Integrated Federal 

Employees’ Compensation System (iFECS).11 The Board has found that the imposition of the 

one-year time limitation does not constitute an abuse of the discretionary authority granted OWCP 

under section 8128(a) of FECA.12 

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

When a request for reconsideration is untimely filed, it must nevertheless undertake a limited 

 

9 Docket No. 18-1613 (issued April 29, 2020).

10 20 C.F.R. § 10.607(a).

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.4(b) (February 2020).

12 G.L., Docket No. 18-0852 (issued January 14, 2020).
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review to determine whether the request demonstrates clear evidence of error.13 OWCP’s 

regulations and 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(a), if the claimant’s 

request demonstrates clear evidence of error on the part of OWCP.14

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

issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest 

on its face that OWCP committed an error.15 It is not enough merely to show that the evidence 

could be construed so as to produce a contrary conclusion.16 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 evidence of error on the 

part of OWCP.17 The Board makes an independent determination of whether a claimant has 

demonstrated clear evidence of error on the part of OWCP such that it abused its discretion in 

denying merit review in the face of such evidence.18

OWCP’s procedures further provide that the term clear evidence of error is intended to 

represent a difficult standard.

19

 The claimant must present evidence that 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 that, if submitted before the denial was issued, 

would have created a conflict in medical opinion requiring further development, is not clear 

evidence of error.20 

Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact 

and make an award for or against payment of compensation.21 Section 10.126 of Title 20 of the 

Code of Federal Regulations provides that a decision shall contain findings of fact and a statement 

of reasons.22 The Board has held that the reasoning behind OWCP’s evaluation should be clear 

 

13 20 C.F.R. § 10.607(b); R.S., Docket No. 19-0180 (issued December 5, 2019).

14 Id.; supra note 11 at Chapter 2.1602.5(a).

15 20 C.F.R. § 10.607(b); B.W., Docket No. 19-0626 (issued March 4, 2020); Fidel E. Perez, 48 ECAB 663, 

665 (1997).

16 See G.B., Docket No. 19-1762 (issued March 10, 2020); Leona N. Travis, 43 ECAB 227, 240 (1991).

17 B.W., supra note 17.

18 Id.; Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993).

19 Supra note 11 at Chapter 2.1602.5(b).

20 G.B., supra note 1; A.R., Docket No. 15-1598 (issued December 7, 2015).

21 5 U.S.C. § 8124(a).

22 20 C.F.R. § 10.126.
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enough for the reader to understand the precise defect of the claim and the kind of evidence which 

would overcome it.23

ANALYSIS

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

Preliminarily, the Board notes that by decision dated April 29, 2020, the Board set aside 

the March 15, 2018 decision in part and remanded the case for OWCP to apply the proper standard 

of review for an untimely request for reconsideration regarding appellant’s entitlement to wageloss compensation for periods in 2012 and 2014. Findings made in prior Board decisions are

res judicata absent any further review by OWCP under section 8128 of FECA.24

On remand, OWCP failed to make findings regarding the arguments and evidence 

submitted in support of appellant’s untimely reconsideration request.25 In its June 18, 2020 

decision, it summarily denied appellant’s request for reconsideration without analyzing whether it 

was sufficient to demonstrate clear evidence of error.26 The June 18, 2020 decision simply noted: 

“You did not present clear evidence of error.... The basis for this decision is.” OWCP, however,

did not provide any discussion regarding the basis for its decision and did not address the 

arguments made by appellant in her December 15, 2017 reconsideration request letter.27 Thus, the 

Board finds that OWCP did not comply with the review requirements of FECA and its 

implementing regulations.28 Accordingly, appellant could not understand the precise defect of the 

claim, i.e. whether she had demonstrated clear evidence that OWCP’s last merit decision was 

incorrect, and the kind of evidence which would overcome it.29 The Board will therefore set aside 

OWCP’s June 18, 2020 decision and remand the case for an appropriate decision, with findings of 

fact and a statement of reasons, regarding appellant’s untimely reconsideration request.

CONCLUSION

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

 

23 C.M., Docket No. 19-1211 (issued August 5, 2020); L.M., Docket No. 13-2017 (issued February 21, 2014); supra 

note 13 at Chapter 2.1400.5 (all decisions should contain findings of fact sufficient to identify the benefit being denied 

and the reason for the disallowance).

24 See M.B., Docket No. 21-0012 (issued May 12, 2021); M.M., 18-1366 (issued February 27, 2019); E.L., 16-0635 

(issue November 7, 2016)); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

25 See K.D., Docket No. 20-1186 (issued February 3, 2021).

26 M.D., Docket No. 20-0868 (issued April 28, 2021); T.P., Docket No. 19-1533 (issued April 30, 2020).

27 See Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); R.T., Docket No. 19-0604 (issued 

September 13, 2019); R.C., Docket No. 16-0563 (issued May 4, 2016).

28 Supra notes 23 and 24.

29 Supra note 11 at Chapter 2.1400.5.
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ORDER

IT IS HEREBY ORDERED THAT the June 18, 2020 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: July 9, 2021

Washington, D.C.

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board