United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.N., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Mattapan, MA, Employer 

__________________________________________ 

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Docket No. 15-1182 

Issued: September 9, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 1, 2015 appellant filed a timely appeal from a November 4, 2014 nonmerit 

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

between the last merit decision dated September 12, 2013 and the filing of this appeal on May 1, 

2015, pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) 

and 501.3, the Board lacks jurisdiction to review the merits of appellant’s claim. 

ISSUE 

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

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

On appeal appellant asserts that he filed his reconsideration request on 

November 3, 2013. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On April 5, 2002 appellant, then a 35-year-old letter carrier, filed an occupational disease 

claim alleging that constant walking hurt his left ankle. He did not stop work and continued his 

regular job duties. OWCP accepted the claim for aggravation of left foot synovitis and 

aggravation of left posterior tibial tendinitis. In December 2007 appellant began treatment with 

Dr. Kenneth M. Leavitt, a podiatrist. 

On March 9, 2007 appellant filed a recurrence claim, stating that he sustained a 

recurrence of disability and stopped work on February 27, 2007 because he worked in daily pain. 

The recurrence was accepted, and appellant did not return to work. Appellant was placed on the 

periodic compensation rolls. 

In April 2008 OWCP referred appellant to Dr. Joel A. Saperstein, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. In a May 5, 2008 report, Dr. Saperstein 

advised there was little in the way of objective findings. He diagnosed flexible flat feet with 

static pain and early degenerative arthritis of both feet. Dr. Saperstein advised that appellant 

could not return to his usual occupation but was capable of eight hours of sedentary, 

administrative, or clerical work daily, and provided physical restrictions.2

On September 9, 2008 appellant was referred to vocational rehabilitation. In 

October 2008, Dr. Leavitt referred appellant to Dr. Deepak S. Tandon, a Board-certified 

neurologist, who provided a January 12, 2009 evaluation in which he noted appellant’s 

complaint of severe bilateral ankle and foot pain. He recommended additional testing. A 

February 4, 2009 electrodiagnostic study of the lower extremities was normal. In reports dated 

February 11 and April 8, 2009, Dr. Tandon indicated that appellant did not have nerve 

entrapment in the peroneal or tibial compartment or evidence of anterior or posterior tarsal tunnel 

syndrome, and that he was uncertain how to proceed. He recommended additional testing. 

In reports dated April 16 to November 24, 2009, Dr. Leavitt described appellant’s 

complaint of bilateral ankle pain, diagnosed bilateral collapsed feet, and described appellant’s 

treatment. He advised that appellant was totally disabled because he was unable to stand for any 

period of time. 

Vocational rehabilitation services were placed in interrupted status while appellant was 

undergoing additional medical development. The services were closed in October 2009. 

In February 2010 OWCP determined that a conflict in medical evidence had been created 

between the opinions of Dr. Leavitt and Dr. Saperstein regarding appellant’s work capabilities. 

OWCP referred appellant to Dr. John S. Ritter, a Board-certified orthopedic surgeon, for an 

impartial evaluation. 

 2

 Dr. Saperstein also noted a history of a right Achilles tendon rupture that was not employment related. 
3

A March 13, 2010 x-ray of the left foot demonstrated degenerative changes at the 

talonavicular joint and medial malleolus, similar to findings in 2007.3 

In an April 8, 2010 report, Dr. Ritter noted his review of the record, including diagnostic 

studies, and provided physical examination findings. He diagnosed physiologic pes planus (flat 

foot) alignment and indicated that this was not work related. Dr. Ritter advised that appellant 

could not return to his usual job based on subjective complaints of bilateral ankle pain and could 

work full time in activities that did not require walking and standing, which were limited to two 

hours daily. OWCP determined that the weight of the medical evidence rested with Dr. Ritter 

and referred appellant to a rehabilitation specialist for vocational rehabilitation. 

Dr. Leavitt continued to submit reports reiterating his findings and conclusions and 

advising that appellant was totally disabled due to dysfunction of both feet and severe and 

debilitating pain. 

Appellant was again referred for vocational rehabilitation services in July 2010. In an 

August 20, 2010 report, Helene Annis, a vocational rehabilitation counselor, advised that she met 

with appellant on August 13, 2010 at which time he indicated that he did not feel that he was 

capable of working because he was unable to sit due to bilateral foot pain. 

On November 4, 2010 the rehabilitation counselor telephoned OWCP stating that 

appellant did not want to continue with rehabilitation services. In a November 5, 2010 letter, 

OWCP proposed to suspend appellant’s monetary compensation on the grounds that he impeded 

rehabilitation efforts. Appellant was notified of the penalty provisions of section 8113(b) of 

FECA4

 and section 10.519 of OWCP regulations.5 OWCP informed him that it was assumed 

that vocational rehabilitation would have resulted in a return to work with no loss of wageearning capacity and, accordingly, compensation would be reduced to zero. Appellant was 

directed to make a good faith effort to participate in vocational rehabilitation, and given 30 days 

in which to respond by contacting both OWCP and his rehabilitation counselor. 

On November 8, 2010 the employing establishment informed OWCP that appellant had 

been medically separated from the employing establishment, effective August 28, 2010. 

Appellant telephoned OWCP on November 15, 2010, voicing his disagreement with the 

proposed suspension, stating that he was totally disabled. In an undated statement, he stated that 

he could not stand or sit with his feet on the floor without constant severe pain. 

By decision dated December 8, 2010, OWCP advised appellant that his failure to undergo 

the essential preparatory effort of vocational testing impeded a determination of his wageearning capacity had he undergone the testing and rehabilitation effort. In the absence of 

evidence to the contrary, the vocational rehabilitation effort would have resulted in his return to 

work at the same or higher wages than for the position held when injured. Under the provisions 

 3

 The record also contains diagnostic testing and other medical evidence regarding appellant’s right lower 

extremity, hips, and lumbar spine, not at issue in this case. 

4

 5 U.S.C. § 8113(b). 

5

 20 C.F.R. § 10.519. 
4

of section 8113(b) of FECA and section 10.519 of OWCP’s regulations, it reduced his 

compensation to zero, effective December 19, 2010, because he failed to cooperate with 

vocational rehabilitation efforts or show good cause for not complying. Appellant was informed 

that the reduction would continue until he, in good faith, participated in directed vocational 

testing, or showed good cause for not complying, at which time the reduction of compensation 

would cease. His vocational rehabilitation record was closed. 

On June 6, 2011 OWCP received appellant’s request for reconsideration. Appellant 

stated that he did not participate in vocational rehabilitation services for medical reasons, stating 

that Dr. Leavitt advised that he was unable to participate due to his medical condition. In a 

January 4, 2011 report, Dr. Leavitt indicated that he began treating appellant on December 29, 

2007 for posterior tibial tendinitis, severe collapsed feet, and bilateral ankle and rear foot 

discomfort. He advised that appellant was homebound and totally disabled from any activities 

that involved standing, walking, or sitting due to severe pain that resulted from lymphatic 

congestion. In notes dated January 13 and May 4, 2011, Dr. Leavitt described appellant’s 

treatment. 

In a merit decision dated August 24, 2011, OWCP denied modification of the 

December 8, 2010 decision. It found Dr. Leavitt’s reports lacked sufficient rationale to 

overcome the weight of Dr. Ritter who advised that appellant was capable of modified work. 

Appellant again requested reconsideration on May 31, 2012. He asserted that he could 

not work due to multiple medical issues including severe bilateral foot pain, plus left hip 

arthritis, and a herniated disc in his lower back. Appellant submitted diagnostic studies the 

bilateral hips, right ankle, and lumbar spine. 

In reports dated October 26, 2011 to March 1, 2012, Dr. Leavitt reiterated that appellant 

had severe chronic bilateral foot pain and was unable to stand or walk for any period of time and 

described appellant’s treatment. On February 14, 2012 he advised that appellant’s gait was not 

normal and that the medical issues in appellant’s left foot had adversely affected his right foot. 

In a merit decision dated September 12, 2013, OWCP denied modification of the 

previous decisions. It noted that Dr. Leavitt had been on one side of the conflict resolved by 

Dr. Ritter and his later reports were insufficient to overcome the weight of Dr. Ritter’s opinion or 

to create a new conflict. 

On June 12, 2014 appellant telephoned OWCP with a question about taxes. 

In a letter and OWCP appeal request form dated September 3, 2014, received by OWCP 

on September 23, 2014, appellant requested reconsideration. He also requested that his claim be 

expanded to include his right foot. Appellant submitted an April 10, 2014 letter in which 

Dr. Leavitt advised that appellant was permanently disabled due to persisting, severe, and 

debilitating pain in both feet. Dr. Leavitt continued that appellant was unable to bear weight, 

whether standing or sitting for any period of time, and was unable to walk without a limp. He 

advised that a return to work would worsen appellant’s condition and render him severely 

disabled due to repetitive use of his feet. 
5

In a November 4, 2014 decision, OWCP denied appellant’s reconsideration request on 

the grounds that his request was untimely filed and that he failed to present clear evidence of 

error on the part of OWCP. 

LEGAL PRECEDENT 

Section 8128(a) of 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 own motion or on application. The Secretary, in 

accordance with the facts found on review may -- 

(1) end, decrease or increase the compensation awarded; or 

(2) award compensation previously refused or discontinued.”6

 

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

authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the 

implementing regulations provide that an application for reconsideration must be received within 

one year of the date of OWCP’s decision for which review is sought.7

 However, OWCP will 

reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the 

claimant’s application for review shows clear evidence of error on the part of OWCP in its most 

recent merit decision. To establish clear evidence of error, a claimant must submit evidence 

relevant to the issue that was decided by OWCP. The evidence must be positive, precise, and 

explicit and must be manifest on its face that OWCP committed an error.8

To show clear evidence of error, 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.9 Evidence that does 

not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to 

establish clear evidence of error.10 It is not enough merely to establish that the evidence could be 

construed so as to produce a contrary conclusion.11 This entails a limited review by OWCP of 

the evidence previously of record and whether the new evidence demonstrates clear error on the 

 6

 5 U.S.C. § 8128(a). 

7

 20 C.F.R. § 10.607(a). 

8 Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997). 

9 Annie L. Billingsley, 50 ECAB 210 (1998). 

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

11 Id. 
6

part of OWCP.12 The Board makes an independent determination of whether a claimant has 

submitted clear evidence of error on the part of OWCP.13

ANALYSIS 

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

request for reconsideration. An application for reconsideration must be received within one year 

of the date of OWCP’s decision for which review is sought.14 As to appellant’s assertion on 

appeal that he submitted his reconsideration request on November 3, 2013, other than his 

telephone call to OWCP about taxes, there is nothing in the record between the September 12, 

2013 decision and appellant’s reconsideration request received on September 23, 2014 with 

Dr. Leavitt’s April 10, 2014 report. Because appellant’s request for reconsideration was not 

received by OWCP until September 23, 2014, more than one year after issuance of the 

September 12, 2013 merit decision, it was untimely. Consequently, he must demonstrate clear 

evidence of error by OWCP in its September 12, 2013 decision. 

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

of OWCP. In his September 2014 reconsideration request, appellant disagreed with OWCP’s 

suspension of his wage-loss compensation for failure to cooperate with vocational rehabilitation 

efforts. He maintained that he was totally disabled and could not participate due to the accepted 

left foot and ankle conditions and additionally had a right foot condition and asked that it be 

accepted. Appellant also submitted an April 10, 2014 report from Dr. Leavitt, an attending 

podiatrist, who had long opined that appellant was totally disabled and had been on one side of a 

conflict in medical evidence resolved by Dr. Ritter regarding appellant’s capability for some type 

of work. 

The evidence submitted by appellant, however, does not raise a substantial question as to 

the correctness of OWCP’s merit decision in which his compensation was reduced to zero for 

failure to participate in vocational rehabilitation efforts. Clear evidence of error is intended to 

represent a difficult standard. The submission of a detailed, well-rationalized medical report 

which, if submitted before the merit decision was issued, would have created a conflict in 

medical opinion requiring further development, is not clear evidence of error.15 The Board 

makes an independent determination of whether a claimant has submitted clear evidence of error 

on the part of OWCP.16

The Board therefore finds that in accordance with its internal guidelines and with Board 

precedent, OWCP properly performed a limited review of the argument and evidence submitted 

 12 Id. 

13 Nancy Marcano, 50 ECAB 110 (1998). 

14 Supra note 7. 

15 James R. Mirra, 56 ECAB 738 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, 

Chapter 2.1602.5(a) (October 2011). 

16 Supra note 13. 
7

by appellant with his September 2014 reconsideration request to ascertain whether it 

demonstrated clear evidence of error in the September 12, 2013 OWCP decision and correctly 

determined that it did not, and thus denied appellant’s untimely request for a merit 

reconsideration on that basis.17 

CONCLUSION 

The Board finds that appellant’s request for reconsideration was untimely filed and that 

he failed to establish clear evidence of error. OWCP, therefore, properly denied a merit review 

of his claim. 

ORDER 

IT IS HEREBY ORDERED THAT the November 4, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 9, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 20 C.F.R. § 10.607(b) (2011); see D.G., 59 ECAB 455 (2008).