United States Department of Labor

Employees’ Compensation Appeals Board

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E.L., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, USP ATLANTA, Atlanta, GA, 

Employer

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Docket No. 22-0631

Issued: October 31, 2022

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. MCGINLEY, Alternate Judge

JURISDICTION

On March 13, 2022 appellant filed a timely appeal from a January 12, 2022 nonmerit 

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

elapsed from the last merit decision dated February 28, 2020 to 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 over the merits of this case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the January 12, 2022OWCP decision, appellant submitted additional evidence to 

the Board. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the 

evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will 

not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded 

from reviewing this additional evidence for the first time on appeal. Id.
2

ISSUE

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

merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of 

error.

FACTUAL HISTORY

On June 28, 2019 appellant, then a 50-year-old correctional officer, filed an occupational 

disease claim (Form CA-2) alleging that he developed an “illness” due to factors of his federal 

employment, including typing and office paperwork that caused cramping in both arms. He 

indicated that he had not been medically evaluated. Appellant reported that he first became aware 

of his condition and its relation to his federal employment on June 28, 2019. On the reverse side 

of the claim form, appellant’s supervisor indicated that the employing establishment first received 

notice on the same date. Appellant did not stop work.

In support of his claim, appellant submitted an undated statement indicating that he had 

worked for the employing establishment for over 23 years. His job duties included repetitively 

applying and removing restraints from inmates’ legs, waists, and hands; rotating the key to lock 

and unlock cell and office doors; opening and closing heavy doors; as well as extensive typing to 

complete reports and responses, loading and unloading large caliber firearms, and having his wrists 

locked in position for 5 hours at a time, for up to 15 hours, while escorting and transporting 

inmates. Appellant noted that his hobbies included cooking, woodworking, gardening, and 

automotive repair. In June 2019, he began experiencing numbness and tingling in both wrists. 

During the night, the tingling would wake him up, and during the day, the numbness varied 

depending on his duties for the day. Appellant noted that the pain and numbness had progressed 

over the last three years, and he was now completely losing feeling in his hands. He indicated that

he had never had a similar condition.

In a development letter dated July 3, 2019, OWCP informed appellant of the deficiencies 

of his claim. It advised of the additional evidence needed to establish his occupational disease 

claim and provided a questionnaire for his completion. In a separate development letter of even 

date, OWCP requested that the employing establishment provide additional information, including 

comments from a knowledgeable supervisor. It afforded both parties 30 days to respond.

OWCP subsequently received an August 23, 2019 progress note fromDr. Daniel R. Orcutt, 

a Board-certified orthopedic surgeon, relating that appellant experienced frequent, mild bilateral 

numbness and tingling in his hands for the last six months, as well as cramping at night, which 

was aggravated by lifting, gripping, pushing, and pulling. Appellant reported being injured on the 

job and experienced muscle aches and arthralgias/joint pain. On examination Dr. Orcutt noted

decreased median nerve distribution bilaterally, decreased sensation to the radial digits, positive 

carpal tunnel compress test, and ulnar symptoms. He noted that x-rays revealed no fracture, 

dislocation, or arthritis, but did reveal mild degenerative joint disease. Dr. Orcutt diagnosed pain 

in the right hand, pain in the finger of the left hand, and bilateral carpal tunnel syndrome.

By decision dated August 26, 2019, OWCP denied appellant’s occupational disease claim, 

finding that the medical evidence of record was insufficient to establish a medical diagnosis in 
3

connection with the accepted factors of his federal employment. It concluded, therefore, that he 

had not met the requirements to establish an injury as defined under FECA.

Appellant subsequently submitted a September 27, 2019 progress note from Dr. Orcutt 

relating that appellant’s elbows remained the most symptomatic. Physical examination revealed 

bilateral tenderness along the ulnar nerve, as well as bilateral mildly decreased sensation of the 

ulnar digits. Dr. Orcutt reviewed a September 24, 2019 electromyography/nerve conduction 

velocity (EMG/NCV) study of the bilateral upper extremities, which demonstrated moderate left 

carpal tunnel syndrome and increased latency of the bilateral upper extremities at the elbows, 

consistent with bilateral cubital tunnel syndrome. He diagnosed pain in the right hand, pain in the

finger of the left hand, bilateral carpal tunnel syndrome, and pain in the right shoulder and noted 

that appellant may need cubital tunnel release in the future. In a progress note of even date,

Dr. Orcutt released appellant for full-duty work as of that date and indicated that appellant still had 

pain and cramping. In an October 25, 2019 progress note, he diagnosed pain in the right hand, 

pain in the finger of the left hand, bilateral carpal tunnel syndrome, and pain in the right shoulder. 

In a work-status report of even date,Dr. Orcutt released appellant for full-duty work and diagnosed 

cubital tunnel syndrome, greater on the left than the right. In a November 27, 2019 progress note, 

he indicated that his examination revealed decreased ulnar and median nerve distribution

bilaterally and positive carpal compression tests bilaterally. Dr. Orcutt opined that appellant’s

carpal tunnel syndrome and cubital tunnel syndrome were both consistent with work-related 

injuries and should be accepted for workers’ compensation. He diagnosed pain in the right hand, 

pain in the finger of the left hand, bilateral carpal tunnel syndrome, and pain in the right shoulder.

In a November 27, 2019 letter, Dr. Orcutt related appellant’s history of treatment under his 

care. He noted that the September 24, 2019 EMG/NCV study showed carpal tunnel syndrome and 

increased latency of the bilateral upper extremities at the elbow, consistent with cubital tunnel 

syndrome, which was more symptomatic for appellant. Dr. Orcutt added that appellant had ulnar 

symptoms along with numbness, tingling, and severe discomfort. He opined that both the carpal 

and cubital tunnel syndromes were consistent with work-related injuries and should be covered 

under workers’ compensation.

On December 8, 2019 appellant requested reconsideration.

In a December 18, 2019 progress note, Dr. Orcutt indicated that his examination revealed 

decreased ulnar and median nerve distribution bilaterally and positive carpal compression tests 

bilaterally. He again opined that appellant’s conditions were consistent with work-related injuries 

and should be accepted for workers’ compensation. Dr. Orcutt diagnosed pain in the right hand, 

pain in the finger of the left hand, bilateral carpal tunnel syndrome, and pain in the right shoulder. 

In a work status report of even date, he released appellant for full-duty work and noted that 

appellant had pain and numbness.

By decision dated February 28, 2020, OWCP modified the August 26, 2019 decision to 

find that the evidence of record contained a medical diagnosis. The claim remained denied, 

however, as the evidence of record was insufficient to establish causal relationship between 

appellant’s diagnosed conditions and the accepted factors of his federal employment.
4

On March 30, 2020 OWCP received an undated change of address from appellant, 

indicating that he had relocated to from Georgia to Texas.

In a November 18, 2021 memorandum of telephone call (Form CA-110), OWCP noted 

that appellant had called and inquired regarding the status of his case, as he had not received the 

February 28, 2020 decision by mail.

On December 28, 2021 appellant requested reconsideration.

In support of his request, appellant submitted an undated statement asserting that he had 

not received all correspondence due to his relocation to Texas. He explained that he was assigned 

repetitive duties throughout his 24 years of working for the employing establishment. These duties 

included applying handcuffs and leg irons to inmates, performing pat searches on all inmates 

entering the institution or the bus, driving a bus long distances and gripping the steering wheel,

which sometimes caused pain to his wrists, repetitive gripping of inmates that did not conform to 

rules and procedures, typing on a keyboard sometimes for days to complete assignments and 

reports, and sitting with his elbows on the desk and podium within the unit for long periods of 

time. Appellant noted that his pain had increased since he filed his claim and was at times 

unbearable.

By decision dated January 12, 2022, OWCP denied appellant’s request for reconsideration, 

finding that 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 OWCP’s 

decision for which review is sought.4 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).5 Imposition of this one-year filing limitation does 

not constitute an abuse of discretion.6

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

a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited 

review to determine whether it demonstrates clear evidence of error.7 If a request for 

3

5 U.S.C. § 8128(a); see also A.B., Docket No. 19-1539 (issued January 27, 2020); W.C., 59 ECAB 372 (2008).

4

20 C.F.R. § 10.607(a).

5 Federal (FECA) Procedure Manual, Part 2 --Claims,Reconsiderations, Chapter 2.1602.4(b) (September 2020).

6 G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); LeonD. 

Faidley, Jr., 41 ECAB 104 (1989).

7

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB 

499 (1990).
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reconsideration demonstrates clear evidence of error, OWCP will reopen the case for merit 

review.8

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

issue which was decided by OWCP.9 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error.10 Evidence that does not raise a 

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

clear evidence of error.11 It is not enough merely to 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.12 To demonstrate clear evidence 

of error, the evidence submitted 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.13

OWCP’s procedures further provide that the term clear evidence of error is intended to 

represent a difficult standard.14 The claimant must present evidence, which on its face shows that 

OWCP made an error.15 Evidence such as 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.16 The Board makes an independent 

determination of whether a claimant has demonstrated clear evidence of error on the part of 

OWCP.17

8 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April15, 2010). See 

also 20 C.F.R. § 10.607(b);supranote 5 at Chapter 2.1602.5 (September 2020).

9 A.A., Docket No. 19-1219 (issued December 10, 2019); J.F., Docket No. 18-1802 (issued May 20, 2019); J.D., 

Docket No. 16-1767 (issued January 12, 2017); Dean D. Beets, 43 ECAB 1153 (1992).

10 J.D., Docket No. 19-1836 (issued April6, 2020); Leone N. Travis, 43 ECAB 227 (1999).

11 S.W., Docket No. 18-0126 (issued May 14, 2019); Robert G. Burns, 57 ECAB 657(2006).

12 T.N., Docket No. 18-1613 (issued April29, 2020).

13 J.M., Docket No. 19-1842 (issued April23, 2020).

14 See supra note 5 at Chapter 2.1602.5(a) (September 2020); see also J.S., Docket No. 16-1240 (issued 

December 1, 2016).

15 C.C., Docket No. 21-0896 (issued December 2, 2021); R.G., Docket No. 21-0540 (issued November 9, 2021);

K.W., Docket No. 19-1808 (issued April2, 2020).

16 Id.

17 D.S., Docket No. 17-0407 (issued May 24, 2017).
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ANALYSIS

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

reconsideration was untimely filed.

As noted above, a request for reconsideration must be received within one year of the date 

of the last merit decision for which review is sought.18 As appellant’s request for reconsideration 

was not received by OWCP until December 28, 2021, more than one year after OWCP’s 

February 28, 2020 decision, it was untimely filed. Consequently, he must demonstrate clear 

evidence of error by OWCP.19

The Board further finds that appellant has not demonstrated clear evidence of error. On 

reconsideration, appellant submitted a statement reiterating his repetitive employment duties and 

arguing that they supported fact of injury. He also stated that his pain had increased and was at 

times unbearable. These statements, however, do not show that OWCP committed an error in 

finding that appellant failed to establish causal relationship between his medical condition and the 

accepted factors of his federal employment. As such, they do not raise a substantial question as to 

the correctness of OWCP’s February 28, 2020 merit decision and are insufficient to demonstrate 

clear evidence of error.

20

Appellant also argued that he did not receive a copy of the February 28, 2021decision until 

after November 18, 2021. The Board has held that absent evidence to the contrary, a letter properly 

addressed and mailed in the ordinary course of business is presumed to have been received. This 

is called the mailbox rule.21 The evidence of record establishes that the February 28, 2020decision 

was properly mailed to appellant at his last known address of record and was not returned to OWCP 

as undeliverable.

As noted, clear evidence of error is intended to represent a difficult standard. 22 Even a 

detailed, well-rationalized medical report, which if submitted before the denial was issued, would 

have created a conflict in medical evidence requiring further development is insufficient to 

demonstrate clear evidence of error. 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.23

18 See supra note 4.

19 Supra note 7.

20 See D.R., Docket No. 21-0061 (issued May 24, 2021).

21 See J.W., Docket No. 21-0869 (issued January 14, 2022); V.C., Docket No. 20-0798 (issued November 16, 2020).

22 See supra note 14.

23 M.E., Docket No. 18-1442 (issued April22, 2019).
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As appellant’s request for reconsideration does not demonstrate on its face that OWCP 

committed error in its February 28, 2020, the Board finds that OWCP properly determined that het 

did not 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.

ORDER

IT IS HEREBY ORDERED THAT the January 12, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 31, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board