United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Merrifield, VA, Employer 

__________________________________________ 

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Docket No. 15-1666 

Issued: October 28, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 3, 2015 appellant filed a timely appeal from a July 20, 2015 nonmerit decision 

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

since the last merit decision dated June 12, 2014, pursuant to the Federal Employees’ 

Compensation Act1

 (FECA), and 20 C.F.R. § 501.2(c) and 501.3, the Board lacks jurisdiction 

over the merits of this case. 

ISSUE 

The issue is whether OWCP properly determined that appellant’s July 6, 2015 request for 

reconsideration was untimely filed and did not establish clear evidence of error. 

FACTUAL HISTORY 

On February 3, 2014 appellant, a 63-year-old postal carrier technician, filed a Form CA2, notice of occupational disease, alleging that he sustained a bilateral carpal tunnel condition 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

causally related to employment factors. He indicated that he first realized that his condition was 

causally related to his employment on July 8, 2004. 

OWCP received a May 16, 2012 progress note from physician assistant, Michael Early, 

who noted that appellant had received cortisone injections for left carpal tunnel syndrome. 

By letter to appellant dated April 14, 2014, OWCP advised appellant that it required 

additional factual and medical evidence to determine whether he was eligible for compensation 

benefits. It requested that he submit a comprehensive medical report from his treating physician 

describing his symptoms and a medical opinion explaining the cause of any diagnosed condition. 

On June 2, 2014 OWCP received a February 6, 2014 magnetic resonance imaging (MRI) 

scan report from Dr. Judith L. Kaplan, a Board-certified diagnostic radiologist, which reported 

an impression of mild multilevel disc degeneration, and mild central canal stenosis at C3-4. 

By decision dated June 12, 2014, OWCP denied the claim, finding that appellant failed to 

provide medical evidence sufficient to establish that he sustained a bilateral carpal tunnel 

condition in the performance of duty. 

On August 14, 2014 appellant requested an oral hearing before an OWCP hearing 

representative. 

In a decision dated September 18, 2014, OWCP’s Branch of Hearings and Review denied 

appellant’s request for a hearing. It exercised its discretion and determined that the issue in the 

case could be addressed equally well through a reconsideration request and the submission of 

new evidence. OWCP found that since appellant had already previously requested 

reconsideration, he was not, as a matter of right, entitled to a hearing with the Branch of 

Hearings and Review on the same issue. 

On July 6, 2015 OWCP received appellant’s request for reconsideration and additional 

medical evidence. In a report dated February 13, 2013, Dr. David R. Miller, Board-certified in 

orthopedic surgery, advised that appellant was experiencing left hand numbness, tingling and 

pain for more than 10 years and had been diagnosed with bilateral carpal tunnel syndrome. He 

noted that appellant had undergone a carpal tunnel release procedure with relief of his symptoms. 

Dr. Miller asserted, however, that appellant continued to have symptoms of left-sided carpal 

tunnel syndrome, including numbness and tingling in the radial digits on the left side. He 

advised that appellant had long-standing symptomatic carpal tunnel syndrome in his left hand. 

Dr. Miller recommended surgery in the event that his symptoms persisted. 

Dr. Willie J. Banks, Board-certified in orthopedic surgery, reported on December 4, 2013 

that appellant, a postal carrier, was seen for pain and numbness of the left hand. He related that 

appellant had similar complaints several years ago, carpal tunnel syndrome was diagnosed, and 

appellant had undergone surgery to relieve the pressure on the nerve. Dr. Banks noted that 

appellant’s current complaints had been ongoing for several years, and that he had received 

cortisone injections in the past. He related that appellant had positive Tinel’s sign at the right 

wrist and elbow, with decreased sensation to light touch at the “ulnar” digits. 
3

In a January 17, 2014 report, Dr. Miller noted that appellant had symptoms of pain, 

numbness, and tingling in both wrists which began four to five years previously. He advised that 

his current symptoms developed due to an injury at work, and occurred with a work assignment 

as a mail carrier. Dr. Miller noted that appellant had severe, intermittent pain on the palm side 

and advised that his symptoms were aggravated by gripping and picking up items. He diagnosed 

bilateral carpal tunnel syndrome. 

In a June 9, 2014 report, Dr. J. Mark Evans, a specialist in orthopedic hand surgery, 

advised that he had treated appellant for carpal tunnel syndrome since approximately 2003. He 

noted that appellant had been informed that he might ultimately require carpal tunnel 

decompression. Dr. Evans opined that, in light of his employment for the employing 

establishment, his repetitive activities probably exacerbated his carpal tunnel symptomatology. 

On examination he advised that appellant’s findings were consistent with median neuropathy at 

the left upper extremity, with possible ulnar neuropathy at the left elbow. Dr. Evans noted that 

appellant recently underwent an electromyelogram/nerve conduction velocity (EMG/NCV) study 

which documented these findings. He opined that appellant would ultimately require endoscopic 

carpal tunnel decompression as well as ulnar nerve decompression of his left elbow; in addition, 

he might also require repeat surgery on his right hand and was having ongoing symptoms of 

carpal tunnel decompression down the right hand, with ulnar nerve symptoms on the right hand. 

Dr. Evans opined that he had exacerbation of his carpal tunnel symptoms with gripping, 

grasping, and lifting activities with both hands. He did not expect these symptoms to resolve 

without surgical release. 

In a report dated June 9, 2014, Dr. Evans noted that appellant previously underwent 

surgery for carpal tunnel syndrome involving his left hand and had a history of having had a 

carpal tunnel decompression done by another surgeon on his right hand. He advised that he was 

having a recurrence of his symptoms in his right hand and had been receiving intermittent 

cortisone injections for this condition. Dr. Evans noted that appellant recently underwent a 

repeat EMG/NCV study which showed bilateral carpal tunnel syndrome as well as left ulnar 

neuropathy at the elbow. He diagnosed left-sided carpal tunnel syndrome and possible recurrent 

right-sided carpal tunnel syndrome right upper extremity. Dr. Evans noted that he would like to 

obtain a copy of the recent EMG/NCV study; if this documented carpal tunnel syndrome in the 

left hand as well as ulnar nerve compression, then he would recommend endoscopic carpal 

tunnel decompression along with compressions of his ulnar nerve at the elbow. With respect to 

his right hand, he opined that appellant might require additional surgery if his condition showed 

no improvement. 

By decision dated July 20, 2015, OWCP denied appellant’s request for reconsideration 

without conducting a merit review, finding that the request was untimely and that appellant had 

not established clear evidence of error. It stated that appellant was required to present evidence 

which showed that OWCP made an error, and that there was no evidence submitted that showed 

that its final merit decision was in error. 
4

LEGAL PRECEDENT 

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

matter of right.2

 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority. One such limitation is that the application for 

reconsideration must be received within one year of the date of the decision for which review is 

sought.3

 When a request for reconsideration is untimely, OWCP will undertake a limited review 

to determine whether the application presents clear evidence of error on the part of OWCP in its 

most recent merit decision.4

 OWCP procedures state that it will reopen an appellant’s case for 

merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(b), if 

appellant’s application for review shows “clear evidence of error” on the part of OWCP.5

To establish clear evidence of error, an appellant must submit evidence relevant to the 

issue which was decided by OWCP.6

 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.7

 Evidence which does not raise a 

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

clear evidence of error.8

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

as to produce a contrary conclusion.9 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.10 To show clear 

evidence of error, 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 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 The Board makes an independent 

                                                             2

 This section provides in pertinent part: the 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). 

3

 20 C.F.R. § 10.607(a). The one-year period begins on the date of the original decision, and an application for 

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

decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.4 (October 2011). 

4 Rex L. Weaver, 44 ECAB 535 (1993). 

5 See D.E., 59 ECAB 438 (2008). 

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

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

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

9 See supra note 7. 

10 See Nelson T. Thompson, 43 ECAB 919 (1992). 

11 Leon D. Faidley, Jr., 41 ECAB 104 (1989). 
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determination of whether an appellant has submitted clear evidence of error on the part of 

OWCP such that it abused its discretion in denying merit review in the face of such evidence.12 

In the case of William A. Couch,

13 the Board held that, when adjudicating a claim, OWCP 

is obligated to consider all evidence properly submitted by a claimant and received by OWCP 

before the final decision is issued. 

ANALYSIS 

On July 6, 2015 appellant requested reconsideration of the June 12, 2014 merit decision. 

Because more than one year had elapsed since the last merit decision, appellant’s request for 

reconsideration was untimely.14 As such, he must demonstrate clear evidence of error on the part 

of OWCP in denying his occupational disease claim. 

The Board has duly considered the matter and notes that in the case of William A. 

Couch,

15 the Board held that, when adjudicating a claim, OWCP is obligated to consider all 

evidence properly submitted by a claimant and received by OWCP before the final decision is 

issued. While OWCP is not required to list every piece of evidence submitted to the record, it 

only referenced a June 9, 2014 report from Dr. Evans. The record is clear that it received the 

February 13, 2013 and January 17, 2014 reports from Dr. Miller, the December 4, 2013 report 

from Dr. Banks, and the June 9, 2014 reports from Dr. Evans. While OWCP noted a June 9, 

2014 report from Dr. Evans, it did not indicate that Dr. Evans submitted two reports on June 9, 

2014, mentioning only one. OWCP did not indicate that appellant had submitted this medical 

evidence in its July 20, 2015 decision. Accordingly, it appears that OWCP, in its July 20, 2015 

decision, did not adequately or thoroughly review all of the medical evidence. 

OWCP’s regulations require that a decision contain findings of fact and a statement of 

reasons.16 The incomplete adjudication of the medical evidence in the July 20, 2015 decision 

does not satisfy its obligation to provide a decision with appropriate findings and clear analysis.17 

For this reason, the case will be remanded to OWCP to enable it to properly consider 

appellant’s request for reconsideration and all the medical evidence submitted prior to the 

issuance of the July 20, 2015 decision. Following further development as OWCP deems 

necessary, it shall issue an appropriate decision. 

                                                             12 Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990). 

13 41 ECAB 548 (1990). 

14 Supra note 3. 

15 Supra note 13. 

16 20 C.F.R. § 10.126. 

17 See S.B., Docket No. 14-1971 (issued July 2, 2015). 
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CONCLUSION 

The Board finds that the case is not in posture for decision. The case is remanded for 

OWCP to consider the medical evidence appellant submitted with his request for reconsideration 

pursuant to the standards for clear evidence of error set forth above. 

ORDER 

IT IS HEREBY ORDERED THAT the July 20, 2015 decision of the Office of 

Workers’ Compensation Programs be set aside and the case is remanded to OWCP for further 

action consistent with this decision of the Board. 

Issued: October 28, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board