United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.L., Appellant

and

U.S. POSTAL SERVICE, CHURCH STREET 

POST OFFICE, New York, NY, Employer

__________________________________________

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Docket No. 21-1071

Issued: July 6, 2022

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 8, 2021 appellant, through counsel, filed a timely appeal from a June 7, 2021 

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

days has elapsed from the last merit decision, dated August 28, 2018, to 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 this case. 3

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.

3 The Board notes that, following the June7, 2021 decision, OWCP received additional evidence. 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.
2

ISSUE

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

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

FACTUAL HISTORY

On January 30, 2017 appellant, then a 35-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he sustained an injury to his left wrist, elbow, 

shoulder, and chest when he pulled a box pallet off of a truck while in the performance of duty. 

He stopped work on that date. OWCP initially accepted appellant’s claim for cervical strain and

later expanded the acceptance of his claim to include left arm biceps strain. 

In a December 14, 2017 report, Dr. Timothy Henderson, a Board-certified orthopedic 

surgeon, serving as a second opinion physician, advised that appellant was capable of returning to 

light-duty work with restrictions of working no more than six hours per day, pushing, pulling, and 

lifting no more than 20 pounds. 

On January 5, 2018 OWCP referred appellant to a certified vocational rehabilitation 

counselor based on Dr. Henderson’s work restrictions. It noted that this referral was limited to

placement services with the previous employer only. In a letter dated January 9, 2018, the 

vocational rehabilitation counselor requested that appellant contact her in order to schedule an 

initial telephonic interview, as her attempts to contact him by telephone had been unsuccessful. 

She advised him that failure to contact her may jeopardize his entitlement to benefits. On 

January 19, 2018 the vocational rehabilitation counselor noted in a rehabilitation action report 

(Form OWCP-44) that appellant had not responded to her letter. 

In a letter dated January 23, 2018, OWCP advised appellant of the specific penalties under 

5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519 for failing to cooperate with vocational rehabilitation 

without good cause. It noted that he had not responded to his vocational rehabilitation counselor’s 

letter. OWCP advised appellant that the initial stages of vocational rehabilitation included 

interviews, testing, counseling, guidance, and work evaluations. It further advised him that, if he 

failed or refused to participate in vocational rehabilitation without good cause, his compensation 

benefits would be reduced to zero and that this reduction would continue until he complied with 

OWCP’s directions concerning rehabilitation. OWCP afforded appellant 30 days to contact it and 

his rehabilitation counselor to make a good faith effort to participate in the rehabilitation effort 

designed to return him to gainful employment. It informed him that, if he believed that he had a

good reason for not participating in the rehabilitation effort, he should respond within 30 days, 

with reasons for noncompliance, and submit evidence in support of his position. OWCP noted 

that, if appellant did not comply with the instructions contained in the letter within 30 days, the 

rehabilitation effort would be terminated and action would be taken to reduce his compensation 

under 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519. 

Appellant contacted OWCP’s representative by telephone on January 30, 2018 regarding 

the January 23, 2018 letter. An OWCP representative advised him that, if he wished to cooperate 

with vocational rehabilitation, he should contact the rehabilitation counselor, and provided her 

telephone number. 
3

In an initial report dated January 30, 2018, the rehabilitation counselor noted that she had 

contacted the employing establishment in order to obtain a modified job offer. She further noted 

that appellant had left a message for her late in the afternoon of January 19, 2018. 

In a rehabilitation action report (Form OWCP-44) dated February 1, 2018, the 

rehabilitation counselor noted that she had conducted an initial interview with appellant on 

February 1, 2018. 

In an injured worker’s rehabilitation status report (Form OWCP-3) dated May 22, 2018, 

the rehabilitation counselor noted that the employing establishment had not responded to her 

requests for a suitable job offer and that, therefore, the case would move to a plan development 

status in order to obtain medically suitable employment with a new employer. 

In a letter dated June 1, 2018, the rehabilitator counselor notified appellant that his file had 

been moved to plan development, as there was no work available at the employing establishment. 

She noted that she had left messages for him on May 30 and 31, 2018 to discuss the rehabilitation 

plan, but had received no response. The rehabilitation counselor requested that appellant contact 

her by June 8, 2018 to discuss the plan. She advised that failure to contact her may jeopardize his 

entitlement to benefits. 

In a Form OWCP-44 dated June 1, 2018, the rehabilitation counselor noted that she had 

left messages for appellant on May 30 and 31, 2018 to discuss plan development, but that he had 

not responded to the request, and that she had sent a letter to him requesting that he contact her. 

In a Form OWCP-44 dated June 11, 2018, she noted that she had sent him a letter requesting that 

he contact her by June 8, 2018 in order to discuss the rehabilitation plan. The rehabilitation 

counselor also left messages for him on May 30 and 31, 2018, but appellant had not responded to 

her attempts to contact him. 

In a letter dated June 27, 2018, OWCP notified appellant of the penalties under 5 U.S.C. 

§ 8113(b) and 20 C.F.R. § 10.519 for failing to cooperate with vocational rehabilitation without 

good cause. It noted that he had not responded to his vocational rehabilitation counselor’s attempts 

to contact him on May 30 and 31, 2018. OWCP noted that, if appellant did not comply with the 

instructions contained in the letter within 30 days, the rehabilitation effort would be terminated 

and action would be taken to reduce his compensation under 5 U.S.C. § 8113(b) and 20 C.F.R. 

§ 10.519. 

In a Form OWCP-44 dated June 27, 2018, the rehabilitation counselor noted that appellant

had not responded to her multiple messages or letters. 

In a Form OWCP-44 dated August 3, 2018, the rehabilitation counselor noted that a 30-

day letter for noncooperation was sent on June 27, 2018, but that appellant had not been in contact 

with her. 

By decision dated August 28, 2018, OWCP reduced appellant’s compensation to zero, 

effective August 24, 2018, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519, for his failure 

to cooperate with vocational rehabilitation without good cause. The decision was sent to 

appellant’s last known address of record in New Jersey. 
4

In a memorandum of a telephone call (Form CA-110) dated September 5, 2018, appellant 

stated that he had received a notification that his compensation had been terminated. An OWCP 

representative advised that a letter was mailed to him in “June,” advising him of his 

noncooperation, and that he had not returned the rehabilitation counselor’s telephone calls. 

Appellant stated that he did not receive any calls from the rehabilitation counselor, but that he had 

contacted her in “July.” OWCP noted that no mail had been returned after the “June” notice. 

Appellant stated that he had received a plan dated June 13, 2018 from the rehabilitation counselor, 

but that he did not live in New Jersey, and that it was too much for him to travel from the Bronx. 

OWCP’s representative advised that OWCP’s record had his mailing address in Plainfield, New 

Jersey, and that the rehabilitation counselor’s plan was based on his residential address. Appellant 

replied that he had not received compensation and had moved out of his New Jersey address, but 

that he still received mail at that address. OWCP’s representative stated that OWCP did not have 

his new mailing address. Appellant stated that he still had the New Jersey address as his mailing 

address and that he had not provided an updated mailing address to OWCP. He advised that he 

would cooperate with vocational rehabilitation. 

In a letter dated June 14, 2019, appellant indicated that, in 2018, he had received a letter 

telling him to go to New Jersey for training. He noted that he had never worked in New Jersey. 

Appellant stated that he had lived in New Jersey, but had moved to the Bronx, New York. He 

noted that, when he received letters in 2018, he called someone and received no answer. Appellant 

left a voice mail stating that he wanted to return to work, but that it needed to be in Manhattan or 

the Bronx, because he was unable to get to the New Jersey address as he did not have a car and he 

had never worked in New Jersey before. 

On September 24, 2019 OWCP sent appellant a copy of the August 28, 2018 decision to 

his address in the Bronx. 

In a letter dated February 2021, appellant wrote to OWCP requesting vocational 

rehabilitation and receipt of compensation benefits.

In a Form CA-110 dated March 11, 2021, appellant informed an OWCP representative that 

he had never received the most recent merit decision of record, but confirmed that the address in 

his case file was correct. OWCP’s representative noted that there was no returned mail, so all 

indications were that he received the decision in question. Appellant stated that the decision was 

not correct and OWCP’s representative advised him to exercise his appeal rights. 

On March 11, 2021 OWCP sent appellant another copy of the August 28, 2018 decision to 

his last known addressin New Jersey. 

By letter dated March 18, 2021, appellant, through counsel, requested reconsideration of 

the August 28, 2018 decision. Counsel argued that it was issued in clear error, as appellant was 

employed as a mail handler at the employing establishment in New York, but the rehabilitation 

counselor was offering him work in New Jersey. 

By decision dated June 7, 2021, OWCP denied appellant’s request for reconsideration of 

the merits of his claim, pursuant to 5 U.S.C. § 8128(a). By a second decision also dated June 7, 

2021, it rescinded the first June 7, 2021 nonmerit decision, noting that it had superseded the prior 

decision. OWCP analyzed the case under the clear evidence of error standard, finding that 
5

appellant’s reconsideration request was untimely filed and did not demonstrate clear evidence of 

error.

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right. OWCP, through regulations, has imposed limitations on the exercise of its 

discretionary authority under 5 U.S.C. § 8128(a) of FECA.4 One such limitation is that the request 

for reconsideration must be sent within one year of the date of OWCP’s decision for which review 

is sought.5 OWCP will consider an untimely application only if the application demonstrates clear 

evidence on the part of OWCP in its most recent merit decision. The application must establish,

on its face, that such decision was erroneous.6 Where a request is untimely and fails to present 

any clear evidence of error, OWCP will deny the request for reconsideration without reopening 

the case for a review on the merits.7

The term clear evidence of error is intended to represent a difficult standard. The claimant 

must present evidence which on its face shows that OWCP made an error (for example, proof of a 

miscalculation in a schedule award). Evidence such as a detailed, well-rationalized medical report 

which, if submitted prior to the denial, would have created a conflict in medical opinion requiring 

further development, is not clear evidence of error and would not require a review of the case on 

the Director’s own motion.8 To demonstrate clear evidence of error a claimant must submit 

evidence relevant to the issue which was decided by OWCP. The evidence must be positive, 

precise, and explicit and must manifest on its face that it committed an error. 9

ANALYSIS

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. 

OWCP’s procedures provide that the one-year time limitation period for requesting 

reconsideration begins on the date of the original decision.10 A right to reconsideration within one 

year also accompanies any subsequent merit decision on the issues.11 Appellant has alleged that 

4

Supra note 2.

5

20 C.F.R. § 10.607. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 

(September 2020). Timeliness is determined by the document receipt date of the request for reconsideration as 

indicated by the received date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 

2.1602.4b.

6

Id. at. § 10.607.

7

Id. at § 10.608.

8

Supra note 5 atChapter 2.1602.5(a) (September 2020).

9 A.K., Docket No. 17-1254 (issued May 23, 2018); RobertF. Stone, 57 ECAB 292 (2005); LeonD. Modrowski,

55 ECAB 196 (2004); Darletha Coleman, 55 ECAB 143 (2003).

10 20 C.F.R. § 10.607(a).

11 Supra note 9.
6

he did not receive the decision dated August 28, 2018. Absent evidence to the contrary, a letter 

properly addressed and mailed in the ordinary course of business is pre sumed to have been 

received. This is known as the mailbox rule.12 The August 28, 2018 decision was sent to 

appellant’s last known address and is presumed to have been received by him absent any notice of 

nondelivery. Appellant has not submitted evidence to rebut this presumption. As his request for 

reconsideration was received on March 28, 2021 more than one year after the August 28, 2018 

decision, it was untimely filed. Consequently, appellant must demonstrate clear evidence of error 

by OWCP in the suspension of his compensation.

13

The underlying issue in this case is whether appellant had shown a good faith effort to 

cooperate with vocational rehabilitation prior to August 28, 2018. On reconsideration counsel 

asserted that the August 28, 2018 decision was issued in error, as appellant was employed as a 

mail handler at the employing establishment in New York, but the rehabilitation counselor was 

offering him work in New Jersey. However, there is no evidence of record indicating that appellant 

was instructed to take a position in New Jersey. In his June 14, 2019 letter, appellant indicated

that he was told to attend vocational rehabilitation training in New Jersey. The evidence of record 

substantiates that appellant’s last known address was in New Jersey. The evidence of record also 

substantiates that, prior to the August 28, 2018 decision, OWCP’s vocational rehabilitation 

counselor had attempted to contact appellant by telephone and letter to discuss a vocational 

training plan, but that appellant did not appropriately respond to the counselor’s requests. 

Appellant was required to cooperate with vocational rehabilitation, and section 8113(b) of FECA 

provides penalties for claimants who fail to cooperate with vocational rehabilitation.

14

 He has not 

submitted any evidence to establish that he agreed to cooperate with vocational rehabilitation or 

that he had provided good cause for refusal after receiving the June 27, 2018 letter from OWCP 

informing him of the consequences for failing to participate. Therefore, appellant has not 

demonstrated clear evidence of error.

The term clear evidence of error is intended to represent a difficult standard.15 None of the 

evidence submitted by appellant manifests on its face that OWCP committed an error in reducing 

his compensation based on his failure to cooperate with vocational rehabilitation. Appellant has 

not provided evidence of sufficient probative value to raise a substantial question as to the 

correctness of OWCP’s decision.16 Thus, the evidence is insufficient to demonstrate clear 

evidence of error.

12 R.D., Docket No. 20-1551 (issued November 8, 2021); see also see James A. Gray, 54 ECAB 277 (2002).

13 20 C.F.R. § 10.607(b); see A.K., supranote 9.

14 Section 8113(b) of FECA provides that,if an individual fails to undergo vocational rehabilitation as directed by 

OWCP, it may reduce her compensation to what would have been her wage-earning capacity had she cooperated. 

5 U.S.C. § 8113 (b).

15 See A.K., supra note 9.

16 Id. 
7

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 June 7, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 6, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board