United States Department of Labor

Employees’ Compensation Appeals Board

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B.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Houston, TX, Employer

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Docket No. 21-0547

Issued: November 3, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

On February 11, 2021 appellant filed a timely appeal from a November 16, 2020 nonmerit 

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

Boards assigned the appeal Docket No. 21-0547.

On March 28, 2013 appellant, then a 53-year-old city carrier, filed an occupational disease 

claim (Form CA-2) alleging that she sustained an injury to her knees due to factors of her federal 

employment, including prolonged standing on a concrete floor casing mail. She noted that she 

first became aware of her condition and first realized its relation to her federal employment on 

February 28, 2013. Appellant stopped work on March 8, 2013 and returned on March 25, 2013.

OWCP accepted her claim for bilateral sprains of unspecified sites of the knee and leg and 

aggravation of bilateral unspecified internal derangement of the knee. 

By decision dated September 22, 2016, OWCP terminated appellant’s entitlement to wageloss compensation and schedule award benefits, effective that date, due to her refusal of suitable 

work, pursuant to 5 U.S.C. § 8016(c)(2).

Appellant subsequently requested reconsideration. By decisions dated October 19, 2017 

and May 7, 2018, denied modification. 

Appellant again requested reconsideration. By decision dated July 24, 2019, OWCP 

vacated the May 7, 2018 decision in part, finding that she was entitled to schedule award 
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compensation for the period September 1 to 22, 2016. However, it affirmed the May 7, 2018 

decision in part, finding that appellant refused suitable work. 

On August 18, 2020 appellant, through her then-counsel, requested reconsideration of 

OWCP’s July 24, 2019 decision. 

By decision dated November 16, 2020, OWCP denied appellant’s August 18, 2020 request 

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

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

Section 8128(a) of the Federal Employees’ Compensation Act1(FECA) vests OWCP with 

discretionary authority to determine whether it will review an award for or against compensation. 

The Secretary of Labor may review an award for or against payment of compensation at any time 

on his or her own motion or on application.2 OWCP, through regulations, has imposed limitations 

on the exercise of its discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 

C.F.R. § 10.607(a) provides that a request for reconsideration must be received by OWCP within 

one year of the date of OWCP’s decision for which review is sought.3

The Federal (FECA) Procedure Manual requires a review of the file to determine whether 

the reconsideration was received within one year of a merit decision. The one-year period begins 

on the date of the original decision. However, a right to reconsideration within one year 

accompanies any subsequent merit decision on the issues. This includes any decision of OWCP’s 

Branch of Hearings and Review after a hearing or review of the written record, any denial of 

modification by OWCP following a reconsideration, any merit decision by the Board, and any 

merit decision following a remand from OWCP’s Branch of Hearings and Review or the Board, 

but does not include prerecoupment hearing decisions.4 Timeliness is determined by the document 

receipt date of the reconsideration request (the received date in the Integrated Federal Employees’

Compensation System (iFECS)). If the reconsideration request has a document received date 

greater than one year, the request must be considered untimely.5

OWCP will consider an untimely request for reconsideration only if it demonstrates clear 

evidence of error in its most recent merit decision. The request must establish, on its face, that 

such decision was erroneous.6 The term clear evidence of error is intended to represent a difficult 

standard. If clear evidence of error has not been presented, OWCP should deny the request by 

letter decision, which includes a brief evaluation of the evidence submitted and a finding made 

that clear evidence of error has not been shown.7

1

5 U.S.C. § 8101 et seq.

2

Id. at § 8128(a).

3

20 C.F.R. § 10.607(a).

4 Federal (FECA) Procedure Manual, Part 2 --Claims, Reconsiderations, Chapter 2.1602.4a (September 2020).

5

Id. at Chapter 2.1602.4b (September 2020).

6

20 C.F.R. § 10.607(b).

7

See supra note 4 at Chapter 2.1602.5a, b (September 2020).
3

The most recent decision reviewing the merits of appellant’s suitable work termination was 

OWCP’s July 24, 2019 decision. Appellant had one calendar year from the date of that decision, 

or until July 24, 2020, to request reconsideration. OWCP received her reconsideration request on 

August 18, 2020. As the received date was more than one year after the July 24, 2019 termination 

decision, appellant’s request is untimely. 

The proper standard of review for an untimely reconsideration request is the clear evidence 

of error standard.8 However, in denying appellant’s reconsideration request in its November 16, 

2020 decision, OWCP applied the standard of review for timely requests for reconsideration. As 

OWCP applied an incorrect standard of review, the Board will set aside OWCP’s November 16, 

2020 decision and remand the case for review under the clear evidence of error standard, followed 

by an appropriate decision.

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IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings 

consistent with this order of the Board.

Issued: November 3, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

8 W.L., Docket No. 15-1842 (issued January 14, 2016).

9

See D.G., Docket No. 17-1323 (issued January 2, 2018).