United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Tempe, AZ, Employer

__________________________________________

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Docket No. 17-0274

Issued: October 29, 2018

Appearances: Case Submitted on the Record

William Bothwell, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 17, 2016 appellant, through her representative, filed a timely appeal from a 

September 27, 2016 nonmerit decision of the Office of Workers’ Compensation Programs

(OWCP). As more than 180 days elapsed from OWCP’s last merit decision, dated April 7, 2014, 

 

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

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 over the merits of this case.

3

ISSUE

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

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

FACTUAL HISTORY

On July 16, 2013 appellant, then a 57-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that she sustained Achilles tendinitis which she attributed to 

“consistent standing” and getting in and out of her vehicle while on her new delivery route. She

identified June 10, 2013 as the date she first became aware of her claimed condition and realized

its relationship to her employment. Appellant continued to work.

OWCP received treatment notes from appellant’s podiatrist, Dr. William J. Leonetti. In a 

June 18, 2013 report, Dr. Leonetti diagnosed right Achilles tendinitis and right scar tissue 

adhesions. He noted that appellant was a postal worker and that she experienced pain stepping in 

and out of her truck while making deliveries. Dr. Leonetti also noted that appellant’s x-rays 

revealed that the entire posterior-superior aspect of the calcaneus had been surgically removed.

He further noted that the prior surgery caused a tremendous amount of scar tissue adhesions along 

the Achilles tendon. Dr. Leonetti advised appellant to restrict her standing and walking to one 

hour, intermittently. He also noted that appellant could sit a maximum of four hours and that she 

could push/pull a maximum of 20 pounds. Dr. Leonetti instructed appellant to be very careful 

getting in and out of vehicles, and further commented that stepping up and down was very difficult 

on the Achilles. He did not believe that further surgery would improve appellant’s condition. 

Dr. Leonetti recommended massage therapy and possibly physical therapy to help break up the 

adhesions.

Dr. Leonetti’s July 10, 2013 treatment notes indicated that appellant was seen for a followup regarding chronic injury with loss of function, gait, and balance of the right foot secondary to 

a work injury to the right foot on September 11, 2001. He reported that appellant suffered an 

Achilles tendon insertional injury and underwent surgical intervention as a result. Dr. Leonetti 

noted that the surgical procedure was so aggressive that it permanently altered the insertional 

function of appellant’s right Achilles tendon.

OWCP also received a July 10, 2013 attending physician’s report (Form CA-20) from

Dr. Leonetti, who diagnosed right Achilles tendinitis. Dr. Leonetti reiterated that the date of injury 

was September 11, 2001. The reported history was right Achilles injury recently aggravated by 

 

2 5 U.S.C. § 8101 et seq.

3 Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). By order dated April 13, 2017, the Board exercised its discretion and denied the request as appellant’s 

arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the 

record. Order Denying Request for Oral Argument, Docket No. 17-0274 (issued April 13, 2017).
3

change in route with increased standing and getting in and out of her vehicle. Dr. Leonetti

indicated that appellant’s current condition was employment related and explained that the recent 

changes in her route aggravated her condition. He further noted that appellant was able to work 

with restrictions as of June 18, 2013, and would be able to resume her regular work as of 

October 1, 2013. Appellant’s current restrictions included standing/walking one hour at a time, 

with a maximum of four hours per day. He also noted that appellant could work in a seated position 

for at least 4 hours a day, at 30-minute increments. 

In a July 16, 2013 duty status report (Form CA-17), Dr. Leonetti continued to diagnose 

Achilles tendinitis due to stepping in and out of a vehicle at work on September 11, 2001 and 

advised that appellant was capable of working with the following restrictions: lifting and carrying 

no more than 4 hours per day, sitting 30 minutes at a time; standing no more than 4 hours per day,

walking no more than 1 hour per day with 15-minute breaks, and pulling/pushing no more than 20 

pounds. 

On August 19, 2013 Dr. Leonetti reviewed a magnetic resonance imaging (MRI) scan 

dated December 18, 2012 and found no evidence of Achilles tendon tear and thickening and 

changes along the posterior calcaneal margin, suggesting prior surgery. There was no associated 

stress response, edema, or fracture. Dr. Leonetti diagnosed status post right Achilles tendon injury 

and status post permanent scar tissue with loss of range of motion, strength, and overall function 

of the right Achilles tendon. He reported that appellant insisted that she was unable to perform 

her job duties of getting in and out of a vehicle and then filing mail into multiple mailbox stations 

due to her injury. Dr. Leonetti released appellant to full-time, full-duty work, but with no overtime. 

The record contains an investigative report dated September 6, 2013 from the employing 

establishment’s Office of the Inspector General (OIG), including a DVD of video surveillance of 

appellant performing her work duties on July 26, 2013 delivering mail by minivan. The 

investigative report also contains OIG interviews of Dr. Leonetti on July 30 and August 20, 2013. 

Dr. Leonetti related that he had been appellant’s doctor for several years and believed that she was 

exaggerating the affect her injury was having on her employment. When the OIG investigator 

informed Dr. Leonetti that appellant drove a minivan and sat on the left side, he stated that 

appellant had told him that she drove a right-side delivery truck in which she sat on the right side 

of the vehicle. On August 20, 2013 the OIG investigator reinterviewed Dr. Leonetti who stated 

that he felt appellant had misled him by telling him her foot hurt because she had to continuously 

get in and out of a right-handed drive vehicle on her route, when she actually drove a left-handed 

drive minivan. He stated that appellant also misrepresented that she stepped down onto uneven 

ground when she actually stepped down onto evenly paved parking lots. 

By decision dated October 17, 2013, OWCP denied appellant’s claim, finding that the 

factual evidence of record was insufficient to establish that the work events occurred as alleged. 

In an October 29, 2013 report, Dr. Leonetti noted that appellant’s pain could cause episodes 

that were severe enough to limit her activities at work, and these episodes could be brought on by 

weather changes or walking on uneven ground surfaces. He advised that appellant could control 

her pain with certain types of shoes, stretches, anti-inflammatories, and other palliative measures 

and was capable of remaining on a full work status.
4

On November 13, 2013 appellant requested a review of the written record by a 

representative of OWCP’s Branch of Hearings and Review. 

By decision dated April 7, 2014, an OWCP hearing representative conducted a review of 

the written record and affirmed the prior decision, finding that appellant had not established fact 

of injury. She found that the OIG’s September 9, 2013 investigative report determined that 

appellant had misrepresented her condition to Dr. Leonetti. The OIG surveillance conducted on 

July 26, 2013 showed appellant exiting her vehicle, left foot first, onto paved parking lots and 

sidewalks, with no obvious signs of pain or difficulty. Dr. Leonetti indicated that he felt appellant 

had misled him by telling him her foot hurt because she had to continuously get into and out of a 

right-handed drive vehicle on her route when she actually drove a left-handed drive minivan. He

also noted that the surveillance video of appellant did not demonstrate that she was in pain. 

On June 23, 2015 appellant, through her representative, requested reconsideration and 

argued that OWCP’s April 7, 2014 decision was, on its face, erroneous.

By decision dated July 6, 2015, OWCP denied appellant’s request for reconsideration, 

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

On June 20, 2016 appellant, through her representative, again requested reconsideration. 

Appellant’s representative continued to argue that OWCP’s April 7, 2014 decision was, on its face, 

erroneous. He submitted a DVD of an audio recording between appellant and her treating 

physician discussing her case.

By decision dated September 27, 2016, OWCP denied appellant’s request for 

reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error. 

It noted the submitted recording was cumulative and irrelevant to the issue of fact of injury.

LEGAL PRECEDENT

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

matter of right.4 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.5 One such limitation is that the request for reconsideration

must be received by OWCP within one year of the date of the decision for which review is sought.6 

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).7 OWCP will consider an untimely request for reconsideration only if the request 

 

4 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).

5 20 C.F.R. § 10.607.

6

Id. at § 10.607(a). A request for reconsideration must be received by OWCP within one year of OWCP’s decision 

for which review is sought. The one-year period begins on the next day after the date of the originally contested 

decision. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). 

7

Id. at Chapter 2.1602.4b.
5

demonstrates “clear evidence of error” on the part of OWCP in its “most recent merit decision.”

8

 

The request must establish on its face that such decision was erroneous.9

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the 

issue that was decided by OWCP.10 The evidence must be positive, precise, and explicit and it 

must be apparent on its face that OWCP committed an error.11 It is not enough to merely show 

that the evidence could be construed to produce a contrary conclusion. Evidence that does not 

raise a substantial question concerning the correctness of OWCP’s decision is insufficient to 

demonstrate clear evidence of error.12 The evidence submitted must not only be of sufficient 

probative value to create a conflict in medical opinion or establish a clear procedural error, but 

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.13

Where a request is untimely and fails to demonstrate clear evidence of error, OWCP will 

deny the request for reconsideration without reopening the case for a review on the merits.14

ANALYSIS

The Board finds that OWCP properly determined that appellant’s request for 

reconsideration was untimely filed. OWCP’s last merit decision was dated April 7, 2014. 

Appellant’s representative filed the current request for reconsideration on June 20, 2016, which 

was well beyond the one-year filing period for a timely request for reconsideration.15 As 

appellant’s June 20, 2016 request for reconsideration was untimely filed, she must demonstrate 

clear evidence of error on the part of the hearing representative in finding that she failed to establish 

fact of injury.16

The Board finds that the evidence submitted by appellant in support of her request for 

reconsideration does not raise a substantial question as to the correctness of the hearing 

representative’s April 7, 2014 decision or shift the weight of the evidence of record in her favor.

In support of her reconsideration request, appellant submitted a DVD of a recording 

between herself and her treating physician discussing her case. The term clear evidence of error 

 

8 20 C.F.R. § 10.607(b).

9

Id.

10 See Dean D. Beets, 43 ECAB 1153 (1992).

11 See Leona N. Travis, 43 ECAB 227 (1991).

12 See Jesus D. Sanchez, 41 ECAB 964 (1990).

13 Thankamma Mathews, 44 ECAB 765, 770 (1993).

14 20 C.F.R. § 10.608(b).

15 Id. at § 10.607(a). 

16 20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).
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is intended to represent a difficult standard.17 Even a detailed, well-rationalized medical report 

which would have created a conflict in medical opinion requiring further development if submitted 

prior to issuance of the denial decision, does not demonstrate clear evidence of error.18 It is not 

enough to show that evidence could be construed so as to produce a contrary conclusion. Instead, 

the evidence must shift the weight in appellant’s favor.19 The DVD recording is merely an audio 

recording which is not medical evidence and is found to have no probative value. The new DVD 

recording does not show error with respect to OWCP’s April 7, 2014 decision, which found that 

the employment exposure did not occur as alleged. The Board has held that repetitive or 

cumulative evidence is insufficient to shift the weight of the evidence in favor of the claimant.20 

Appellant has not sufficiently explained how the submission of this recording raises a substantial 

question concerning the correctness of OWCP’s decision.

The Board finds that the evidence appellant submitted is insufficient to prima facie shift 

the weight of the evidence in favor of her claim or raise a substantial question that OWCP erred in 

its April 7, 2014 decision. Thus, OWCP properly denied her request for reconsideration because 

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

CONCLUSION

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

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

 

17 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011); see 

Dean D. Beets, supra note 10.

18 See D.G., 59 ECAB 455 (2008); L.L., Docket No. 13-1624 (issued December 5, 2013).

19 See M.N., Docket No. 15-0758 (issued July 6, 2015).

20 See D.E., 59 ECAB 438 (2008); A.F., Docket No. 11-1297 (issued December 20, 2011).
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ORDER

IT IS HEREBY ORDERED THAT the September 27, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 29, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board