United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.W., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

IOWA CITY VETERANS MEDICAL CENTER, 

Iowa City, IA, Employer 

__________________________________________ 

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Docket No. 16-0945 

Issued: July 27, 2016 

Appearances: Case Submitted on the Record 

Appellant, pro se

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 April 4, 2016 appellant filed a timely appeal from a March 15, 2016 nonmerit 

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

has elapsed from the last merit decision dated December 9, 2014, and 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 lacks jurisdiction to review the merits of the claim.2

ISSUE 

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

reconsideration was not timely filed and failed to demonstrate clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq. 

2

 With his request for an appeal, appellant submitted additional evidence. However, the Board may not consider 

new evidence for the first time on appeal. See 20 C.F.R. § 501.2(c). 
2

FACTUAL HISTORY 

On September 8, 2014 appellant, then a 59-year-old locksmith, filed an occupational 

disease claim (Form CA-2), alleging that he developed pain and tenderness in his bilateral 

elbows from repetitive motion of his wrists in the performance of duty. He first became aware of 

his condition on April 1, 2014 and realized it was causally related to his employment on 

June 1, 2014. Appellant did not stop work. 

By letter dated October 14, 2014, OWCP advised appellant of the type of evidence 

needed to establish his claim. It particularly requested that he submit a physician’s reasoned 

opinion addressing the relationship between his claimed condition and specific employment 

factors. 

Appellant was treated by Dr. Mack H. Longmire, Board-certified in emergency medicine, 

on July 12, 2013 for left elbow pain. Dr. Longmire noted that appellant presented on October 4, 

2013 with persistent right elbow pain. Appellant stated that he was unable to get an appointment 

to see an orthopedist so he went to the emergency room for a steroid injection of the right lateral 

epicondyle. He reported working as a locksmith and frequently using a screwdriver which 

exacerbated his elbow pain. Dr. Longmire noted findings of tenderness of the right lateral 

epicondyle and pain with pronation against resistance. He diagnosed right lateral epicondylitis. 

Dr. Longmire injected the lateral epicondyle with a steroid and appellant experienced significant 

symptomatic improvement. An x-ray of the left elbow dated July 12, 2013 was normal. 

Appellant was treated by Dr. Luke M. Gabe, a critical care specialist, on October 1, 2013, 

for right elbow pain. He noted being diagnosed with left lateral epicondylitis during the past 

summer and his physician provided a steroid injection which resolved his elbow condition. 

Appellant reported frequently performing manual labor at his farm but he did not perform 

aggravating movements at work. Dr. Gabe diagnosed lateral epicondylitis and fatigue and 

prescribed a forearm brace. 

Appellant submitted nurse’s notes from October 4, 2013 to August 29, 2014, where he 

was treated for right elbow pain. He noted being diagnosed with left-sided tennis elbow and had 

a steroid injection that improved his symptoms. 

Appellant was treated by Dr. Dan Tong, a resident, on June 1, 2014, presenting with a 

sixth-month history of right elbow pain with an onset of left elbow pain three weeks later. He 

received injections bilaterally with an initial decrease in pain but his symptoms gradually 

returned. Appellant noted working as a locksmith with repetitive upper extremity movements as 

part of his job. He was prescribed forearm bands. Appellant was seen for physical therapy due 

to the acute chronic lateral epicondylitis. He submitted physical therapy notes from May 29 to 

July 2, 2014, where he underwent therapeutic exercises to improve his symptoms of left lateral 

epicondylitis. 

Appellant was treated by Dr. Katherine M. White, a Board-certified internist, on 

August 29, 2014, for a routine follow-up. He reported his back pain was improved and his 

depression was well controlled. Appellant noted undergoing physical therapy during the past 

summer for left lateral epicondylitis. He reported doing a home exercise program with 
3

improvement in symptoms. Dr. White diagnosed low back pain, hypertension, post-traumatic 

stress disorder, depression, fatigue and lateral epicondylitis. 

Appellant also submitted a position description for a locksmith dated October 15, 2003. 

He also submitted an OWCP questionnaire dated November 7, 2014, and indicated that his 

bilateral elbow condition was caused by repeatedly turning a screwdriver with both hands while 

performing his locksmith duties. Appellant denied participating in sports. 

The employing establishment submitted a statement dated October 28, 2014 from 

appellant’s supervisor, Jessica Beswick. Ms. Beswick indicated that the employing 

establishment had no reason to refute appellant’s claim. She noted his tasks require a wide range 

of physical exertion using fine motor skills, lifting up to 50 pounds, and repetitive twisting 

motion using a screwdriver. Ms. Beswick indicated that when appellant’s injury was diagnosed 

several precautions were put into place to minimize the effects of the activities that were 

believed to be aggravating his injury. 

In a decision dated December 9, 2014, OWCP denied appellant’s claim as the medical 

evidence of record did not support that he had a medical condition causally related to the 

accepted factors of his employment. 

In an appeal form dated December 7, 2015, and received on December 15, 2015, 

appellant requested reconsideration. He asserted in a supporting statement that numerous times 

throughout his treatment history the healthcare providers opined that his work as a locksmith 

entailed turning a screwdriver and continued pronation and supination of the wrist which caused 

tennis elbow. Appellant indicated that the fact that he cared for land was immaterial and noted 

he has been a farmer since 2004 and never had elbow pain prior to 2012 when he became a 

locksmith. He indicated that his position as a locksmith required an extreme amount of physical 

work, especially turning a screwdriver. Appellant referenced reports from Dr. Tong dated 

May 29, 2014 and Dr. Longmire dated October 4, 2013 who indicated that repetitive upper 

extremity movements performed as part of his job including frequently using a screwdriver 

exacerbated his elbow pain. Appellant submitted other items all previously of record. He 

submitted a schedule F from his 2004 federal tax return which addressed profit or loss from 

farming. Appellant wrote on the tax return “Disputes ‘farming’ as cause.” 

By decision dated March 15, 2016, OWCP denied appellant’s request for reconsideration 

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

LEGAL PRECEDENT 

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for 

further merit review.3

 This discretionary authority, however, is subject to certain restrictions. 

For instance, a request for reconsideration must be received within one year of the date of 

 3

 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009). 
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OWCP’s decision for which review is sought.4

 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.5

 OWCP may not deny a reconsideration request solely because it was untimely filed. 

When a claimant’s application for review is untimely filed, OWCP must nevertheless undertake 

a limited review to determine whether it establishes clear evidence of error. If an application 

demonstrates clear evidence of error, OWCP will reopen the case for merit review.6

To demonstrate clear evidence of error, a claimant must submit evidence that is relevant 

to the issue that was decided by OWCP,7

 is positive, precise, and explicit, and manifests on its 

face that OWCP committed an error.8

 The evidence must not only be of sufficient probative 

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

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

correctness of OWCP’s decision for which review is sought. Evidence that does not raise a 

substantial question is insufficient to demonstrate clear evidence of error. It is not enough 

merely to show that the evidence could be construed so as to produce a contrary conclusion. A 

determination of whether the claimant has demonstrated clear evidence of error entails a limited 

review of how the evidence submitted with the reconsideration request bears on the evidence 

previously of record.9

ANALYSIS 

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

application for review. As noted, an application for reconsideration must be received within one 

year of the date of OWCP’s decision for which review is sought.10 As appellant’s request for 

reconsideration was not received by OWCP until December 15, 2015, more than one year after 

issuance of the last merit decision by OWCP on December 9, 2014, it was untimely. 

Consequently, he must demonstrate clear evidence of error by OWCP denying his claim for 

compensation. 

The Board finds that appellant has not demonstrated clear evidence of error. In his 

December 7, 2015 reconsideration request, appellant disagreed with OWCP’s decision denying 

his claim for compensation. He asserted that he submitted sufficient medical evidence to 

 4

 20 C.F.R. § 10.607(a). 

5 E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

6 M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term “clear evidence of 

error” is intended to represent a difficult standard). 

7 Dean D. Beets, 43 ECAB 1153 (1992). 

8 Leona N. Travis, 43 ECAB 227 (1991). 

9 J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010). 

10 20 C.F.R. § 10.607(a). 
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establish a causal relationship between his work duties and bilateral epicondylitis. Appellant 

indicated that numerous times throughout his treatment history the healthcare providers noted 

that his work as a locksmith entailed turning a screwdriver and the continued pronation and 

supination of the wrist which caused tennis elbow. He indicated that the fact that he cared for 

land was immaterial and noted he has been a farmer since 2004 and never had elbow pain prior 

to 2012 when he became a locksmith. Appellant referenced reports from Dr. Tong dated 

May 29, 2014 and Dr. Longmire dated October 4, 2013, who indicated that appellant performed 

repetitive upper extremity movements as part of his job and frequently used a screwdriver which 

exacerbated his elbow pain. The Board notes that while appellant addressed his disagreement 

with OWCP’s decision denying his claim for an occupational disease, his general contentions do 

not demonstrate clear evidence of error as they do not raise a substantial question as to the 

correctness of OWCP’s most recent merit decision which denied appellant’s claim for an 

occupational disease. 

The Board notes that the underlying issue is medical in nature. The Board notes that 

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 denial was issued, would have 

created a conflict in medical opinion requiring further development, is not clear evidence of 

error.

11 

Appellant submitted a position description for a locksmith dated October 15, 2003, a 

report from Dr. Longmire dated October 4, 2013, a report from Dr. Tong dated June 1, 2014 and 

physical therapy notes from May 29 to July 2, 2014. OWCP had previously considered this 

evidence and appellant, in submitting these documents, did not explain how this evidence was 

positive, precise, and explicit in manifesting on its face that OWCP committed an error in 

denying his claim for compensation. Thus, these reports are insufficient to discharge appellant’s 

burden of proof, as their resubmission is insufficient to raise a substantial question as to the 

correctness of OWCP’s decision. 

Appellant submitted a schedule F from his 2004 federal tax return which addressed profit 

or loss from farming. He stated on the return “Disputes ‘farming’ as cause.” However, this 

evidence is insufficient to demonstrate clear evidence of error as it does not address the 

underlying issue in this case, whether appellant’s bilateral elbow condition was causally related 

to his employment as a locksmith. 

The Board finds that OWCP properly found that appellant’s December 7, 2015 request 

for reconsideration failed to demonstrate clear evidence of error. It therefore properly denied 

appellant’s reconsideration request. 

On appeal, appellant reiterates assertions that he made before OWCP indicating that 

although he did not file a timely reconsideration request he had submitted sufficient medical 

evidence to establish that his bilateral elbow condition was related to his work as a locksmith. 

However, as noted, the Board does not have jurisdiction over the merits of the claim. Appellant 

has not presented evidence or argument that raises a substantial question as to the correctness of 

OWCP’s decision for which review is sought. 

 11 D.G., 59 ECAB 455 (2008). 
6

CONCLUSION 

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

to demonstrate clear evidence of error. 

ORDER 

IT IS HEREBY ORDERED THAT the March 15, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 27, 2016 

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