United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Oklahoma City, OK, Employer

__________________________________________

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Docket No. 19-1354

Issued: March 13, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 28, 2019 appellant filed a timely appeal from a December 3, 2018 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 The most recent merit 

decision was a Board decision dated March 13, 2018, which became final 30 days after issuance, 

and is not subject to further review.2 As there was no merit decision by OWCP within 180 days 

of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3(FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.

 

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 December 3, 2018, the date of OWCP’s last decision, was 

June 1, 2019. As this fell on a Saturday, appellant had until the following business day, Monday, June 3, 2019, to file 

the appeal. Since using June 4, 2019, 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 May 28, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

2 20 C.F.R. § 501.6(d). See G.G., Docket No. 18-1074 (issued January 7, 2019).

3 5 U.S.C. § 8101 et seq.
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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).

FACTUAL HISTORY

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

in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth 

below.

On February 11, 2008 appellant, then a 51-year-old administrative assistant, filed an 

occupational disease claim (Form CA-2) alleging that she developed constant pain in both elbows, 

hands, arms, and her neck and back as a result of her employment duties. She indicated that she 

first became aware of her condition and first realized that it resulted from her employment on 

January 15, 2008. On the reverse side of the claim form, the employing establishment reported 

that appellant was last exposed to the conditions alleged to have caused her conditions on 

“February 12, 2008.” OWCP accepted her claim for bilateral lateral epicondylitis, bilateral medial 

epicondylitis, sciatica, and neck sprain. It subsequently expanded acceptance of appellant’s claim 

to include bilateral carpal tunnel syndrome.5 OWCP paid wage-loss compensation for total 

disability on the periodic rolls, effective June 7, 2009. 

On December 5, 2014 OWCP mailed appellant an EN1032 form for her completion. The 

form instructed her to report all employment for which she received a salary, wages, income, sales 

commissions, piecework, or payment of any kind. Appellant was also directed to report all selfemployment activities or involvement in business enterprises, including (but not limited to) 

farming, sales work, operating a business, and providing services in exchange for money, goods, 

or other services. The kinds of services that she was required to report included such activities as 

carpentry, mechanical work, painting, contracting, child care, keeping books and records, and 

managing and overseeing a business of any kind, including a family business. The form also 

instructed appellant to report any work or ownership interest in any business enterprise, even if the 

business lost money or if profits or income were reinvested or paid to another. 

The cover letter for the EN1032 form included the following warning: “A false or evasive 

answer to any question, or the omission of an answer, may be grounds for forfeiting your 

compensation benefits and subject you to civil liability.” The forms contained certification clauses 

which informed appellant of the consequences of not accurately reporting her employment 

 

4 Docket No. 17-1362 (issued March 13, 2018).

5 Under OWCP File No. xxxxxx455, OWCP accepted appellant’s September 15, 2008 occupational disease claim 

for cervical spondylosis without myelopathy or radiculopathy, cervical disc degeneration, lumbar spondylosis without 

myelopathy or radiculopathy, lumbar spondylolisthesis, bilateral pes planus, neck sprain, bilateral medial and lateral 

epicondylitis, and bilateral carpal tunnel syndrome as causally related to her employment duties. On September 1, 

2010 OWCP combined the current case under OWCP File No. xxxxxxx045 with OWCP File No. xxxxxx455 with the 

latter file as the master file. 
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activities, such as being subjected to criminal penalties and losing the right to receive workers’

compensation benefits. 

On December 27, 2014 appellant completed and signed the EN1032 form. In response to 

the question of whether she worked for an employer for the past 15 months, she reported “No.” 

Appellant also responded “No” to the question of whether she was self-employed or involved in 

any business enterprise in the past 15 months. 

On June 12, 2015 OWCP received a narrative statement from appellant. Appellant

indicated that she needed to correct an answer on the yearly paperwork form. She explained that 

her husband had purchased a snow cone trailer and had added her name to the permits, trailer, and 

limited liability company (LLC) just in case anything happened to him. Appellant reported that 

she answered “No” on the EN1032 form and that she did not think about the snow cone trailer 

until her husband opened it for business over the summer. 

In a July 23, 2015 letter, the employing establishment’s Office of Inspector General (OIG) 

informed OWCP that an investigation into appellant revealed that she had been operating her own 

business and had failed to report the employment activities to OWCP. It requested that OWCP 

issue a forfeiture decision due to her failure to disclose her employment. 

On July 27, 2015 OWCP received an OIG summary report of investigation, which 

indicated that during surveillance OIG agents had observed appellant working at a snow cone 

business, carrying merchandise and buckets, unloading supplies from a trailer, writing on the 

outside menu of the business, setting up tables and umbrellas, staking signs in the ground, and 

serving snow cones to customers. 

In a completed Form EN1032 dated February 7, 2016, appellant answered “yes” that she 

was self-employed or involved in a business enterprise from the period April 1 to 

September 1, 2015. She explained that she and her husband bought a snow cone stand and that 

she bought and delivered cups, checked on the employees, and visited with customers a couple of 

times. Appellant noted a pay rate of $8.00/hour. 

In a February 7, 2016 narrative statement, appellant explained that her husband had added 

her name to the title of the snow cone stand that he had bought because he had lung cancer. She 

indicated that, while grocery shopping with her husband, they occasionally bought cups, straws, 

or napkins and dropped them off at the snow cone stand. Appellant also related that the snow cone 

stand was two blocks from her house and that she occasionally stopped by to see how the business 

was operating and visit with customers. She reported that neither she nor her husband were paid 

or received any wages while operating the snow cone stand. 

By decision dated August 18, 2016, OWCP found that appellant had forfeited her wageloss compensation for the period September 27, 2013 through December 27, 2014 for failure to 

report her business and employment activities or earnings on a Form EN1032. The forfeiture

period covered the 15 months preceding the December 27, 2014 EN1032 form. OWCP found that 

appellant had knowingly provided false information about earnings and self-employment on that
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EN1032 form. It also determined that all compensation paid during the period would be considered 

an overpayment subject to recovery in accordance with 5 U.S.C. § 8129.6 

OWCP received a September 21, 2016 letter by Dr. John Ellis, Board-certified in family 

medicine, who related that appellant had severe anxiety and depression due to the multiple 

work-related injuries to her neck, upper extremities, lumbar spine, and feet. Dr. Ellis noted that 

she was under the influence of narcotic pain medicine when she filled out the Form EN1032 in 

2014 and opined that she was not fully aware of what she was signing. 

In an October 18, 2016 report, Dr. Gary A. Rouse, a clinical psychologist, related that,

since his original evaluation in September 2008, appellant had continued to decline emotionally 

and physically. He opined that she was not competent or knowledgeable enough to understand 

what she was signing or attesting to or to understand the complexity or legal implications of 

partnerships and LLCs. 

In a January 31, 2017 statement, appellant explained that she had not received money from 

her husband’s snow cone business nor did she perform any job activities. She reported that her 

husband had recently dissolved the LLC. 

On August 18, 2017 appellant requested reconsideration of the August 18, 2016 forfeiture 

decision. In a statement dated August 9, 2017, she asserted that she believed that she was not 

required to report her investment income as work activities since there was no evidence that the 

three to five hours total spent at the business could be construed as integral to the operation of the 

business. Appellant cited to FECA Procedure Manual 2.402.5 and S.G.,

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and contended that the 

Board has distinguished between the reporting requirements for income received from passive 

investment and earnings and income received by performing work and earning wages. She also 

alleged that she was not fully aware when she signed the LLC documents due to her deteriorating 

mental health, severe anxiety, and depression. Appellant also cited to B.Y.,

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alleging that the Board 

had previously found that, in finding that a claimant forfeited compensation, OWCP could not rely 

solely on video tape and summary submitted by the employing establishment’s OIG. She also 

noted her disagreement with the OIG investigation and her interview with the OIG agents. 

 

6 By separate decision dated August 18, 2016, OWCP also issued a preliminary determination that appellant 

received an overpayment of compensation in the amount of $43,832.60 for the period September 27, 2013 through 

December 27, 2014 as a result of the forfeiture. It found that she was at fault in the creation of the overpayment 

because she failed to report her business and employment activities or earnings from the snow cone business that she 

owned with her husband. By decision dated December 12, 2016, OWCP finalized the preliminary overpayment 

determination, finding an overpayment of compensation in the amount of $43,832.60 for the period September 27, 

2013 to December 27, 2014. It also found that appellant was at fault in the creation of the overpayment, and therefore

was not eligible for waiver for recovery of the overpayment. On June 2, 2017 appellant filed an appeal to the Board 

regarding the December 12, 2016 overpayment decision. By decision dated March 13, 2018, the Board affirmed the 

December 12, 2016 OWCP decision, which finalized the overpayment of compensation in the amount of $43,832.60 

for the period September 27, 2013 to December 27, 2014 and found that she was at fault in the creation of the 

overpayment. 

7 Docket No. 11-0942 (issued April 4, 2012).

8 Docket No. 11-1798 (issued July 24, 2012).
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By decision dated November 17, 2017, OWCP denied modification of the August 18, 2016 

forfeiture decision. 

On November 20, 2018 OWCP received appellant’s appeal request form, which requested 

reconsideration of the November 17, 2017 decision. In a narrative statement, appellant alleged 

that OWCP ignored many issues, including her arguments concerning why any of the OIG 

interviews or photographs were applicable. She also contended that OWCP erred by ignoring 

evidence and arguments concerning whether her comprehension was impaired. Appellant cited to 

the Board’s holding in C.G.,9and alleged that she had provided probative supporting evidence that 

she would have difficulty understanding the obligations required on a Form EN1032. 

Appellant also resubmitted Dr. Ellis’ September 21, 2016 report and Dr. Rouse’s 

October 28, 2016 report. 

OWCP received a statement from appellant dated June 1, 2017. Appellant alleged that 

OWCP had not supported its forfeiture determination because there was no evidence establishing 

that she knowingly failed to report self-employment or earnings on the Form EN1032 signed on 

December 27, 2014. She explained that the three to five hours spent at the business were not

considered valuable on the open labor market and that her activities could not be construed as 

integral to the operation of the business. Appellant also asserted that, although the business was 

licensed in May 2014, it had not opened for business in April 2015. She further indicated that the 

file contained statements from her psychologist who noted that she was not fully aware of what 

she was signing when she signed the LLC. 

By decision dated December 3, 2018, OWCP denied appellant’s request for 

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

LEGAL PRECEDENT

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

to review an award for or against compensation.10 This discretionary authority, however, is subject 

to certain restrictions.11 One such limitation is that the request for reconsideration must be received 

by OWCP within one year of the date of the decision for which review is sought.12 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).13 

 

9 Docket No. 11-0454 (issued May 22, 2012).

10 5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-

1287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

11 20 C.F.R. § 10.607; S.C., Docket No. 18-0126 (issued May 14, 2019).

12 Id. at § 10.607(a); L.W., Docket No. 18-1475 (issued February 7, 2019). For merit decisions issued on or after 

August 29, 2011, a request for reconsideration must be received by OWCP within one year of OWCP’s decision for 

which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 

(February 2016).

13 Id. at Chapter 2.1602.4(b).
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Imposition of this one-year filing limitation does not constitute an abuse of discretion.14 OWCP 

may not deny a reconsideration request solely because it was untimely filed. When a claimant’s 

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

determine whether it demonstrates clear evidence of error.15 If an application demonstrates clear 

evidence of error, OWCP will reopen the case for merit review.16

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.17 It is not enough merely to demonstrate that the 

evidence could be construed so as to produce a contrary conclusion.18 The evidence submitted 

must not only be of sufficient probative value to create a conflict in medical opinion or demonstrate 

a clear procedural error, but must be of sufficient probative value to shift the weight of the evidence 

in favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.19 

OWCP procedures further provide that the term clear evidence of error is intended to represent a 

difficult standard.20 

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.21

ANALYSIS

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

The most recent merit decision of OWCP was the November 17, 2017 decision. One year 

from November 17, 2017 elapsed on November 17, 2018. As November 17, 2018 fell on a 

Saturday, appellant had until the next business day on Monday, November 19, 2018 to file her 

reconsideration request.22 OWCP received her reconsideration request on November 20, 2018

which was more than one year after the November 17, 2017 decision. Appellant’s request

 

14 G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. 

Faidley, Jr., 41 ECAB 104 (1989).

15 See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB 

499, 501-02 (1990).

16 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See 

also 20 C.F.R. § 10.607(b); supra note 12 at Chapter 2.1602.5 (February 2016).

17 20 C.F.R. § 10.607(b); P.L., Docket No. 18-0813 (issued November 20, 2018); Fidel E. Perez, 48 ECAB 663, 

665 (1997).

18 See Leona N. Travis, 43 ECAB 227, 240 (1991).

19 V.L., Docket No. 17-1493 (issued September 12, 2018); Annie L. Billingsley, 50 ECAB 210 (1998).

20 Supra note 12 at Chapter 2.1602.5a (October 2011).

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

22 Supra note 12 at Chapter 2.1602.4 (February 2016).
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therefore was untimely filed.23 The proper standard of review for an untimely reconsideration 

request is the clear evidence of error standard.24 In denying her request, OWCP applied the 

standard of review for timely requests for reconsideration.25 As it applied the incorrect standard 

of review to the untimely request for reconsideration, the Board will set aside OWCP’s

December 3, 2018 decision and remand the case for proper review under the clear evidence of 

error standard as required by regulations.26

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the December 3, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and this case is remanded for further action 

consistent with this decision of the Board.

Issued: March 13, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

23 See E.H., Docket No. 19-0859 (issued December 10, 2019).

24 Supra note 15.

25 See L.W., Docket No. 16-1202 (issued January 25, 2018); H.L., Docket No. 13-2077 (issued March 20, 2014).

26 See 20 C.F.R. § 10.607(b); see also M.C., Order Remanding Case, Docket No. 18-0866 (issued March 26, 2019).