United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.C., Appellant 

and 

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, OFFICE OF INSPECTOR 

GENERAL, Washington, DC, Employer 

__________________________________________ 

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Docket No. 15-0293 

Issued: September 11, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 1, 2014 appellant filed a timely appeal from a June 5, 2014 nonmerit 

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

elapsed from the most recent merit decision dated April 3, 2013 to the filing of this appeal, the 

Board lacks jurisdiction to review the merits of appellant’s claim, pursuant to the Federal 

Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3. 

ISSUE 

The issue is whether OWCP properly determined that appellant’s request for 

reconsideration was untimely filed and failed to present clear evidence of error. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On February 21, 2013 appellant, then a 43-year-old criminal investigator, filed a 

traumatic injury claim alleging that on September 1, 2011 she sustained a left foot injury in the 

performance of duty. She alleged that while at the office moving boxes in high heel shoes she 

sustained a stress fracture and a bruise which later became Morton’s neuroma requiring surgical 

excision. 

 Appellant submitted a September 9, 2011 treatment note from an unidentified healthcare 

provider. It indicated that she was experiencing left foot tenderness after moving office material 

while in high heels. The report further noted that there was bruising over the third 

metatarsophalangeal. Appellant submitted a September 19, 2011 treatment note containing an 

illegible signature. It advised that she was experiencing left foot pain over the plantar aspect, but 

no signs of acute fracture, dislocation, or degenerative joint disease. 

By letter dated March 4, 2013, OWCP advised appellant of the type of evidence needed 

to establish her claim. It allowed her 30 days from the date of the letter to submit responsive 

evidence. 

In a January 16, 2013 report, Dr. Michael Stempel, a podiatrist, advised that appellant 

complained of left foot pain, swelling, vague numbness in the fourth digit, and a radiating 

sensation into the digits. He noted that she had a recent complex history of an unexplained 

neuritic event that resulted in a blood pressure drop and slurred speech. On examination 

Dr. Stempel noted that appellant had localized fullness in the third interspace, tenderness to 

palpation, and compression of the forefoot. 

In a January 29, 2013 diagnostic report, Dr. Kathleen Brindle, a diagnostic radiologist, 

advised that a magnetic resonance imaging (MRI) scan of the left foot revealed Morton’s 

neuroma in the third intermetatarsal space. Imaging also revealed two separate cystic areas of 

the first and fifth metatarsals with rim enhancement in the plantar subcutaneous soft tissue, 

which possibly represented a bursa formation. 

In a February 21, 2013 report, Dr. Brindle advised that appellant was scheduled to 

undergo surgery on her left foot for removal of a neuroma and aspiration of cyst/bursa planta to 

the first metatarsophalangeal joint. She diagnosed Morton’s neuroma and cyst burst and 

reiterated the result of appellant’s left foot MRI scan. 

In a March 20, 2013 statement, appellant advised that while moving materials from one 

office to another she was required to lift and reposition hundreds of boxes while wearing high 

heel shoes. She advised that her foot was very sore the next day, but she did not inspect it for 

bruising or injury because she was busy with her caseload. Appellant noted that when she 

initially sought medical care she was diagnosed with a stress fracture and bruise. She further 

noted that her foot pain had subsided for several months, but resurfaced in 2012 when she began 

to experience burning sharp left foot pain. Appellant stated that initially she did not make the 

connection that her condition was related to the earlier work incident. 
3

By decision dated April 3, 2013, OWCP denied appellant’s claim because the medical 

evidence of record was insufficient to establish that the diagnosed medical condition was related 

to the established work-related events. 

In an April 9, 2013 report, Dr. Howard Osterman, a podiatrist, advised that appellant was 

18 months post left foot work injury. He noted that she had a stress reaction fracture of the third 

and fourth metatarsals in September 2011. Dr. Osterman explained that the area was 

intermittently tender and subsequently made scar tissue that entrapped the interdigital nerve 

creating a neuroma. Physical examination revealed pain and palpation to the area overlying the 

third and fourth metatarsal in the left foot with redness, swelling, and warmth. 

On April 8, 2014 appellant requested reconsideration. In support of reconsideration, she 

asserted that Dr. Osterman’s April 9, 2013 report established causal relationship. Appellant also 

argued that her claim was initially improperly denied because the record was not held open for 

30 days to allow her to submit additional evidence. She claimed that although the development 

letter was dated March 4, 2013 it was not postmarked until March 5, 2013 and that she did not 

receive it until March 8, 2013. 

By decision dated June 5, 2014, OWCP denied appellant’s request for reconsideration 

claim as untimely, as the request was received more than one year after the April 13, 2013 

OWCP decision denying her claim. 

On appeal appellant argued that her request for reconsideration was postmarked prior to 

the deadline for requesting reconsideration. She also argued that the evidence submitted clearly 

established causal relationship and that OWCP prematurely issued a denial without giving her a 

full 30 days to submit additional evidence. 

LEGAL PRECEDENT 

OWCP, through regulations, has imposed limitations on the exercise of its discretionary 

authority under section 8128(a) of FECA. It will not review a decision denying or terminating a 

benefit unless the application for review is received within one year of the date of that decision.2

 

When an application for review is untimely, OWCP undertakes a limited review to determine 

whether the application presents clear evidence that OWCP’s final merit decision was in error.3 

Its regulations state that OWCP will reopen a claimant’s case for merit review, notwithstanding 

the one-year filing limitation set forth under section 10.607 of OWCP regulations, if the 

claimant’s application for review shows clear evidence of error on the part of OWCP.4

 In this 

regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the 

prior evidence of record.5

 2

 20 C.F.R. § 10.607(a) (2011). 

3 Cresenciano Martinez, 51 ECAB 322 (2000). 

4

 20 C.F.R. § 10.607(b) (2011). 

5 See Alberta Dukes, 56 ECAB 247 (2005). 
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To establish 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 OWCP committed an error. Evidence that does not raise a substantial 

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

evidence of error. It is not enough to merely show that the evidence could be construed so as to 

produce a contrary conclusion. 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 error on the part of OWCP. To show clear 

evidence of error, the evidence submitted must be of sufficient probative value to prima facie

shift the weight of the evidence in favor of the claimant and raise a substantial question as to the 

correctness of OWCP’s decision.6

ANALYSIS 

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

request for reconsideration. The most recent OWCP merit decision in this case was issued on 

April 3, 2013. Appellant’s request for reconsideration was not received by OWCP until April 8, 

2014, more than one year after the April 3, 2013 merit decision. Therefore, it was not timely 

filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in denying 

her claim for compensation. 

On appeal appellant argues that her reconsideration request was postmarked within one 

year of the date of that decision. However, OWCP regulations are clear that an application for 

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

review is sought. Thus, the fact that the reconsideration letter was mailed within one year of the 

decision does not constitute a timely filing. The regulatory language unequivocally sets a oneyear time limitation for reconsideration requests to be received by OWCP.7

The Board finds that appellant has not established clear evidence of error on the part of 

OWCP in the denial of her traumatic injury claim. After appellant’s April 3, 2013 decision, 

appellant submitted evidence previously considered by OWCP and an April 9, 2013 report from 

Dr. Osterman. Dr. Osterman advised that appellant was 18 months post left foot work injury. 

He noted that she had a stress reaction fracture of the third and fourth metatarsals in 

September 2011 and that the area was intermittently tender which subsequently made scar tissue 

that entrapped the interdigital nerve creating a neuroma. Although this report provides a history 

of the injury and provides some support for causal relationship, it does not raise a substantial 

question as to the correctness of OWCP’s denial of appellant’s claim. The term clear evidence 

of error is intended to represent a difficult standard. Evidence such as a detailed, well-

 6 Robert G. Burns, 57 ECAB 657 (2006). 

7

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

2.1602.4 (October 2011) (a reconsideration request must be received by OWCP within one year of the date of the its 

decision for which review is sought for merit decisions issued on or after August 29, 2011); R.L., Docket No. 14-

1342 (issued February 24, 2015) (appellant asserted that, as her reconsideration request was received only one day 

late, OWCP should have used the postmark date; the Board found the request untimely as OWCP regulations 

provide that the timeliness of a reconsideration request is determined by the date the request is received by OWCP). 
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rationalized medical report which, if submitted before the denial was issued, would have created 

a conflict in medical opinion requiring further development, is not clear evidence of error.8

 

Appellant also argues on reconsideration that OWCP’s initial denial was improper 

because she was not initially given 30 days to submit additional evidence. By letter dated 

March 4, 2013, OWCP advised appellant that if evidence was not received within 30 days from 

the date of the letter, a decision would be made based on the evidence in the file. OWCP issued 

a decision on April 3, 2013, exactly 30 days following the date of its development letter. 

Appellant argues that the development letter was not postmarked until March 5, 2013 and that 

she did not receive it until March 8, 2013. However, the letter advised that additional evidence 

had to be received within 30 days from the date of the letter. Therefore, appellant was afforded 

30 days to submit additional evidence. These assertions do not raise a substantial question as to 

the correctness of OWCP’s decision. 

On appeal, appellant also reiterates argument made on reconsideration. As explained, 

these are 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. 

 8 D.G., 59 ECAB 455 (2008); see Federal (FECA) Procedure Manual, id. at Chapter 2.1602.5(a) (October 2011). 
6

ORDER 

IT IS HEREBY ORDERED THAT the June 5, 2014 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: September 11, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board