United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.R., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Brooklyn, NY, Employer 

__________________________________________ 

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Docket No. 14-1272 

Issued: October 15, 2014 

Appearances: Case Submitted on the Record

Stephen Larkin, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 12, 2014 appellant, through his attorney, filed a timely appeal from an April 16, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his 

request for reconsideration. As more than 180 days elapsed since the last merit decision, issued 

on March 25, 2013 to the filing of this appeal, pursuant to the Federal Employees’ Compensation 

Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the 

merits of this case. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review of the merits on the grounds that his request for reconsideration was not timely filed and 

did not establish clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On September 30, 2009 appellant, then a 57-year-old electronic technician, filed a 

traumatic injury claim alleging that on September 29, 2009 he sustained an injury to his lower 

back when he pulled a stack of tubs. He stopped work on September 30, 2009. OWCP accepted 

appellant’s claim for lumbar radiculopathy and paid disability compensation. On June 23, 2011 

it accepted that on March 4, 2011 he sustained a recurrence of the September 29, 2009 

employment injury. Appellant again received disability compensation. 

OWCP referred appellant, along with a statement of accepted facts and the medical 

record, to Dr. Leon Sultan, a Board-certified orthopedic surgeon, for a second opinion 

examination to determine the nature and extent of appellant’s medical condition and disability. 

In a September 25, 2012 report, Dr. Sultan reviewed appellant’s history, including the statement 

of accepted facts and noted that he underwent lumbar derangement with documented L4-5 disc 

herniation and L4-5 lumbar laminectomy. Upon examination, he observed normally aligned 

spinal column and mildly flat lumbar lordosis. Dr. Sultan found no active paraspinal muscle 

spasms and no tenderness of the sacroiliac joints with palpation bilaterally. Trendelenburg and 

straight leg raise testing in the supine position were negative bilaterally. Dr. Sultan opined that 

appellant no longer required physical therapy treatment for his employment-related condition. 

He reported that appellant was capable of light or sedentary work with restrictions of lifting or 

carrying up to 10 pounds. 

On October 19, 2012 OWCP referred appellant for vocational rehabilitation counseling. 

Appellant submitted various reports by Dr. Michael B. Shapiro, an orthopedic specialist, 

dated September 10, 2012 to January 10, 2013 who noted that he had treated appellant for back 

pain for the past three years. Dr. Shapiro related appellant’s complaints of dull, aching back pain 

that radiated into his right and left legs. He reviewed appellant’s history and provided findings 

on examination. Dr. Shapiro reported well-healed incision from surgery and diminished range of 

motion of the back. Manual muscle testing of the bilateral lower extremity was greater than or 

equal to 4+/5. Reflexes, sensation and pulses were intact in the bilateral lower extremities. 

Dr. Shapiro stated that appellant remained totally disabled and opined that the prognosis for 

recovery was unknown. He diagnosed lumbago. 

On January 24, 2013 OWCP offered appellant a position as a modified electronic 

technician. The duties included issuing and receiving parts, supplies and tools for two hours; 

performing e-MARS functions for three hours; and keying in crew worksheets for one hour. The 

physical requirements of the job involved standing and sitting for up to four hours; pushing, 

pulling and lifting up to 10 pounds for one hour; and fine manipulation functions for four hours. 

The employing establishment also provided a position description of maintenance support clerk. 

In a January 24, 2013 attending physician’s report, Dr. Shapiro stated that on 

September 29, 2009 appellant injured his back while unjamming boxes. He noted that 

appellant’s range of motion was diminished and diagnosed lumbago. Dr. Shapiro checked a box 

marked “yes” that appellant’s condition was caused or aggravated by an employment activity. 

He reported that appellant was totally disabled beginning September 29, 2010. 
3

In a letter dated January 25, 2013, OWCP advised appellant that the position offered on 

January 24, 2013 was suitable to his medical limitations as indicated in Dr. Sultan’s 

September 25, 2012 report. It stated that appellant had 30 days to either accept or provide an 

explanation for not accepting the position. OWCP notified him that he would be paid for any 

difference in salary between the offered position and his date-of-injury position. It informed 

appellant that, if he refused suitable work without justification, it would terminate his 

compensation under section 8106(c)(2). 

On February 6, 2013 appellant informed OWCP that he was not willing to accept the 

position until he had his job offer reviewed by his physician. 

In a February 14, 2013 report, Dr. Shapiro noted appellant’s persistent problems at the 

spine, back and left leg. He reviewed appellant’s history and provided findings on examination. 

Dr. Shapiro observed that range of motion of the back was diminished and manual muscle testing 

of the bilateral lower extremity was greater than or equal to 4+/5. Reflexes, sensation and pulses 

were intact. Dr. Shapiro diagnosed lumbago. He stated that appellant was totally disabled and 

could not drive extended distances. In a February 14, 2013 duty status report, Dr. Shapiro noted 

that appellant worked as an electronics technician. He indicated that on September 29, 2009 

appellant injured his back. Dr. Shapiro diagnosed lumbago. He reported that appellant was not 

advised to resume work. 

By letter dated February 20, 2013, appellant advised OWCP that he was instructed by his 

physician not to return to work as indicated by the recently submitted CA-17 and CA-20 forms. 

He also stated that he experienced severe pain in his lower back and down his legs after driving 

between 20 to 25 miles. Appellant submitted various CA-17 and CA-20 forms dated July 12 to 

December 20, 2012. 

By letter dated March 1, 2013, OWCP informed appellant that he had refused to accept or 

report to the job offered on January 24, 2013. It notified him that his reason for refusing the 

offered position was not valid. OWCP advised appellant that he had 15 days to accept the 

position or have his compensation benefits and entitlement to disability compensation 

terminated. 

By decision dated March 25, 2013, OWCP terminated appellant’s compensation for 

wage-loss and schedule award compensation benefits effective March 25, 2013 on the grounds 

that he refused an offer of suitable work under 5 U.S.C. § 8106(c)(2). It found that Dr. Sultan’s 

September 25, 2012 report represented the weight of medical evidence and indicated that 

appellant was capable of performing the duties of the modified position. OWCP confirmed that 

the position remained available. 

Appellant continued to submit medical reports and CA-17 and CA-20 forms by 

Dr. Shapiro regarding his medical treatment for his back problems. 

In a letter dated March 21, 2014 and received on March 27, 2014, appellant’s attorney 

requested reconsideration of the March 25, 2013 decision terminating appellant’s benefits. He 

alleged that a new medical report by Dr. Mehran Golpariani, a Board-certified anesthesiologist 

who specializes in pain medicine, established appellant’s inability to perform the position of 
4

maintenance operations support clerk. Counsel claimed that two reports from January and 

February 2013 by Dr. Shapiro also established appellant’s disability. He further stated that the 

job position required storing and issuing supplies, parts and tools and pointed out that many tools 

weighed more than 10 pounds. Counsel noted that appellant did not receive a March 1, 2013 

letter advising him to provide an acceptable reason for refusing the offered position. He included 

copies of the March 25, 2013 termination decision, position descriptions for a tools and parts 

clerk and maintenance support clerk and Dr. Shapiro’s medical reports. 

Appellant submitted a November 1, 2013 magnetic resonance imaging (MRI) scan report 

of the lumbar spine by Dr. Hamid Alam, a Board-certified diagnostic radiologist, who indicated 

that appellant was status post posterior fusion surgery at the L4-5 level and moderate central 

canal stenosis at the L3-4 level. 

In a March 21, 2014 report, Dr. Golpariani provided an accurate history of the 

September 29, 2009 injury at work. He reviewed the medical treatment that appellant received 

and various diagnostic reports. Dr. Golpariani noted that Dr. Sultan opined that appellant could 

return to work doing mostly sedentary work or light work lifting no more than 10 pounds. He 

noted that appellant was given a job offer for an installation located 57 miles away from his 

home. Dr. Golpariani opined that appellant had a permanent disability due to his job-related 

injury and was unable to travel the 57 miles one-way, which would require an hour or more of 

continuous sitting. He explained that the condition appellant was experiencing was consistent 

with back surgery. 

In a decision dated April 16, 2014, OWCP denied appellant’s request for reconsideration 

as untimely filed and failing to establish clear evidence of error. It determined that the most 

recent merit decision on record was the March 25, 2013 decision terminating his benefits. 

Because appellant’s request for reconsideration was not received until March 27, 2014, more 

than one year after the March 25, 2013 decision, his claim was untimely filed. OWCP further 

determined that the evidence submitted after the last merit decision was insufficient to establish 

clear evidence of error. 

LEGAL PRECEDENT 

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

OWCP regulations provide that an application for reconsideration must be received by OWCP 

within one year of the date of OWCP decision for which review is sought.2

 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.3

 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 hearing or review 

 2

 20 C.F.R. § 10.607. 

3

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 
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of the written record decision, any denial of modification following reconsideration, any merit 

decision by the Board and any merit decision following action by the Board.4

OWCP, however, may not deny an application for review solely on the grounds that the 

application was not timely filed. When an application for review is not timely filed, it must 

nonetheless undertake a limited review of the evidence previously of record to determine 

whether the new evidence demonstrates clear evidence of error.5

 In this regard, OWCP will limit 

its focus to a review of how the newly submitted evidence bears on the prior evidence of record.6

 

The Board makes an independent determination of whether a claimant has submitted clear 

evidence of error on the part of OWCP such that it improperly denied merit review in the face of 

such evidence.7

To establish 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.8 Evidence that does not raise a substantial question 

concerning the correctness of OWCP’s decision is insufficient to establish clear evidence of 

error.9

 It is not enough merely to show that the evidence could be construed so as to produce a 

contrary conclusion.10 The evidence submitted must not only be of sufficient probative value to 

create a conflicting medical opinion or establish 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.11 

ANALYSIS 

The only decision before the Board on this appeal is that of OWCP dated April 16, 2014 

which denied further merit review of appellant’s case on the merits because the request for 

reconsideration was not timely filed and did not show clear evidence of error. 

The Board finds that OWCP properly determined that appellant failed to file a timely 

application for review. OWCP issued its most recent merit decision in this case on March 25, 

 4 See also C.J., Docket No. 12-1570 (issued January 16, 2013); D.G., 59 ECAB 455 (2008). 

5 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 

6 Nelson T. Thompson, 43 ECAB 919 (1992). 

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

8

 20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997). 

9 Jimmy L. Day, 48 ECAB 652 (1997). 

10 Id. 

11 Annie L. Billingsley, 50 ECAB 210 (1998). 
6

2013 and it received his request for reconsideration on March 27, 2014. Thus, the request was 

outside the one-year time limit.12 

On appeal, appellant’s counsel alleges that appellant’s reconsideration letter was mailed 

on March 22, 2014, as verified by the certified slip. OWCP regulations, however, are clear that 

an application for reconsideration must be received by OWCP within one year of the date of 

OWCP decision for which review is sought.13 Thus, the fact that the reconsideration letter was 

mailed on March 22, 2014 does not constitute a timely filing. The regulatory language 

unequivocally sets a one-year time limitation for reconsideration requests to be received by 

OWCP. 

Along with his request for reconsideration appellant’s attorney submitted various 

diagnostic reports and January 10 and February 14, 2013 reports by Dr. Shapiro previously of 

record. Also submitted was a March 21, 2014 report by Dr. Golpariani not previously reviewed 

by OWCP. He opined that appellant had a permanent disability due to his job-related injury and 

was unable to travel the 57 miles one-way, which would require an hour or more of continuous 

sitting. While these medical reports are generally supportive of appellant’s inability to work the 

modified job position, they do not establish clear error on the part of OWCP in its suitable work 

determination. They fail to raise a substantial question concerning the correctness of OWCP’s 

decision, at the time that it was issued. 

To establish clear evidence of error, it is not sufficient merely to establish that the 

evidence could be construed so as to produce a contrary conclusion. The term clear evidence of 

error is intended to represent a difficult standard. None of the evidence submitted manifests on 

its face that OWCP committed an error in terminating appellant’s compensation for refusal of 

suitable work. Appellant has not otherwise submitted evidence of sufficient probative value to 

raise a substantial question as to the correctness of OWCP’s March 25, 2013 decision. Thus, the 

evidence is insufficient to establish clear evidence of error. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for reconsideration as 

untimely filed and lacking clear evidence of error. 

 12 See Federal (FECA) Procedure Manual, Part 2 -- Reconsiderations, Time Limitations, Chapter 2.1602(e)(6) 

(August 2011). For decisions issued on or after August 29, 2011, there is still a one-year time limit for requesting 

reconsideration. The one-year period begins on the date of the original decision and the application for 

reconsideration must be received by OWCP within one year of the date of its decision for which review is sought. 

13 20 C.F.R. § 10.607 (Emphasis added). 
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ORDER 

IT IS HEREBY ORDERED THAT the April 16, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 15, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board