United States Department of Labor

Employees’ Compensation Appeals Board

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W.B., Appellant

and

DEPARTMENT OF JUSTICE, ALCOHOL, 

TOBACCO, FIREARMS & EXPLOSIVES, 

FIELD OPERATIONS-CENTRAL, Atlanta, GA

Employer

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Docket No. 23-0473

Issued: August 29, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 17, 2023 appellant filed a timely appeal from a January 6, 2023 nonmerit 

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

have elapsed from OWCP’s last merit decision, dated November 23, 2020, to the filing of this 

appeal, pursuant to the Federal Employees’Compensation Act

1

(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 denied appellant’s request for reconsideration, 

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

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On September 28, 2020 appellant, then a 39-year-old criminal investigator, filed an 

occupational disease claim (Form CA-2) alleging numbness in hands after a firearms training.

2

 He

further indicated that he first became aware of the condition and the relationship of it to his federal 

employment on September 24, 2020.

A work status note dated September 29, 2020 by Dr. W. Joseph Absi, a Board-certified 

orthopedic surgeon, diagnosed bilateral carpal tunnel syndrome and allowed appellant to return to 

work on September 30, 2020 with restrictions.

In a development letter dated October 5, 2020, OWCP advised appellant of the deficiencies 

in his claim and indicated that the evidence provided was insufficient to establish that appellant 

actually experienced the employment factors alleged to have caused injury. It provided a 

questionnaire to him for his completion. OWCP afforded appellant 30 days to respond. In a 

separate development letter of even date, it requested that the employing establishment provide 

additional information regarding his claim. No response was received.

By decision dated November 23, 2020, OWCP denied appellant’s occupational disease 

claim. It found that the evidence was insufficient to establish the alleged factors of federal 

employment. OWCP noted that no statement was received from appellant explaining how his 

federal employment contributed to the alleged condition. It concluded, therefore, that the 

requirements had not been met to establish an injury as defined by FECA. 

On December 28, 2022 appellant requested reconsideration. In support of his 

reconsideration request, he submitted treatment notes from Dr. Absi and Dr. Ramon M. Sanchez, 

a Board-certified neurologist. 

On September 30, 2020 appellant was treated by Dr. Absi who related that he was doing 

“excessive training” on September 24, 2020 and subsequently started developing numbness in his 

hands. Dr. Absi noted that appellant now experienced numbness in the median nerve of both 

hands, especially on the right side. On physical examination he observed moderate edema on the 

right side and no edema on the left. Dr. Absi noted that appellant had positive Tinel’s in both 

carpal tunnels with a negative Phalen and no thenar atrophy. X-ray reports were negative for any 

osteoarticular pathology. Dr. Absi assessed bilateral carpal tunnel syndrome with the right worse 

than the left.

An attending physician’s report (Form CA-20) dated October 13, 2020 by Dr. Absi noted 

that appellant had performed excessive training at the range, and reiterated appellant’s diagnosis

of bilateral carpal tunnel syndrome with the right worse than the left. Appellant was allowed to 

return to work with restrictions. A work status note of even date by Dr. Absi reiterated appellant’s 

diagnosis and indicated that he was at maximum medical improvement (MMI). 

2 OWCP assigned the claim OWCP File No. xxxxxx538. Appellant also hada traumatic injury claim (Form CA-1) 

under OWCP File No. xxxxxx653, which OWCP denied as it was a duplicateof File No. xxxxxx538. His claims have 

been administratively combined by OWCP with OWCP File No. xxxxxx538 serving as the master file.
3

On October 29, 2020 appellant was again treated by Dr. Absi. He related improvement in 

his symptoms. Assessment was improved bilateral carpal tunnel syndrome. Dr. Absi indicated 

that appellant was at MMI. A work status note of even date from Dr. Absi reiterated his diagnosis 

and allowed appellant to return to work at full duty as of October 29, 2020.

On June 3, 2022 appellant was treated by Dr. Sanchez. Appellant related that he was in a 

training program with extensive shooting drills from the right side, and after the eighth day of 

training he developed bilateral numbness and burning sensations spreading up to his forearms. He 

indicated a previous diagnosis of bilateral carpal tunnel syndrome but was seeking a second 

opinion. Dr. Sanchez reviewed Dr. Absi’s progress notes. Physical examination indicated a head 

tilt to the right with atlas malrotation present, as well as positive Phalen test on left but not right 

unless test duration is prolonged. Dr. Sanchez noted that he would like to rule out central cord 

syndrome and right brachial plexus lesion. He assessed: (1) bilateral carpal tunnel syndrome; 

(2) paresthesia of skin; and (3) cervicalgia.

On July 5, 2022 appellant was treated in follow up by Dr. Sanchez who related that his 

right shoulder pain had mostly abated.

By decision dated January 6, 2023, OWCP denied appellant’s request for reconsideration 

finding that it was untimely and failed to demonstrate clear evidence of error. It noted his 

submission of medical evidence on request for reconsideration did not contain a “statement 

providing a description of the work[-]related activities that you claim cause[d] your conditions.”

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, i.e.,

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS).

5

 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.

6

When a request for reconsideration is untimely, OWCP undertakes a limited review to 

determine whether the request demonstrates clear evidence that OWCP’s most recent merit 

decision was in error.

7

 OWCP’s procedures provide that it will reopen a claimant’s case for merit 

3

Id. at § 8128(a); A.P., Docket No. 21-1222 (issued February 9, 2023); see T.J., Docket No. 21-0586 (issued 

September 30, 2021);L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

4

20 C.F.R. § 10.607(a).

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

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

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

7

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

41 ECAB 499 (1990).
4

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

claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of 

OWCP.

8

 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.

9

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

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

must manifest on its face that OWCP committed an error.11 Evidence that does not raise a 

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

clear evidence of error.

12

 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 request for reconsideration bears on the evidence previously of record and 

whether the new evidence demonstrates clear error on the part of OWCP.

13

 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.14

OWCP’s procedures note that the term clear evidence of error is intended to represent a 

difficult standard. The claimant must present evidence which on its face demonstrates that OWCP 

made an error (for example, proof that a schedule award was miscalculated). 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.15

ANALYSIS

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

was untimely filed.

8 A.P., id.; L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued 

April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 6 at Chapter 2.1602.5 (September 2020).

9 A.P., id.; J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

10 A.P.,id.; S.C., Docket No. 18-0126 (issued May 14, 2016);supra note 6 at Chapter 2.1602.5a (September 2020).

11 G.H., Docket No. 22-0394(issued February 6, 2023); J.D., Docket No. 19-1836 (issued April6, 2020);Leone N. 

Travis, 43 ECAB 227 (1999).

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

13 G.H., id.; T.N., Docket No. 18-1613 (issued April 29, 2020).

14 A.P., id.; C.M., Docket No. 19-1211 (issued August 5, 2020).

15 A.P., id.; J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 5 at Chapter 2.1602.5a 

(September 2020).
5

OWCP’s regulations

16 and procedures17 establish a one-year time limit for requesting

reconsideration, which begins on the date of the last merit decision issued in the case. A right to

reconsideration within one year also accompanies any subsequent merit decision on the issues.

18

 

The most recent merit decision pertaining to the denial of appellant’s occupational disease claim 

was dated November 23, 2020. As OWCP received his request for reconsideration on 

December 28, 2022, more than one year after the November 23, 2020 decision, the Board finds 

that it was untimely filed. Because appellant’s request was untimely filed, he must demonstrate 

clear evidence of error on the part of OWCP in denying his occupational disease claim.

The Board further finds that appellant failed to submit the type of positive, precise, and 

explicit evidence which manifests on its face that OWCP committed an error in its November 23, 

2020 decision.

19

OWCP denied appellant’s claim on a factual basis, finding that he had failed to establish 

the implicated factors of his federal employment. In support of his untimely request for 

reconsideration, appellant submitted no other factual documents to further detail the circumstances 

of his claim. Therefore, he did not demonstrate that OWCP’s denial of the claim was erroneous 

or raised a substantial question as to the correctness of OWCP’s determination that he did not 

establish fact of injury.20

Appellant also submitted medical reports dated from September 30, 2020 to July 5, 2022 

from Dr. Absi and Dr. Sanchez, who noted appellant’s medical course of treatment for his 

diagnosed bilateral carpal tunnel syndrome. The Board notes, however, that the submission of this 

medical evidence does not demonstrate clear evidence of error in OWCP’s November 23, 2020 

decision. The underlying issue is factual in nature because appellant’s occupational disease claim 

was denied by OWCP due to his failure to establish factors of his federal employment. 

The Board thus finds that appellant’s untimely request for reconsideration of OWCP’s 

November 23, 2020 decision failed to demonstrate clear evidence of error.

21

16 20 C.F.R. § 10.607(a); A.P., id.; see F.N., Docket No. 18-1543 (issued March 6, 2019);Alberta Dukes, 56 ECAB 

247 (2005).

17 Supra note 6 at Chapter 2.1602.4 (September 2020); A.P., id.; see L.A., Docket No. 19-0471 (issued October 29, 

2019); Veletta C. Coleman, 48 ECAB 367, 370 (1997).

18 20 C.F.R. § 10.607(b); A.P., id.; see Debra McDavid, 57 ECAB 149 (2005).

19 D.M., Docket No. 22-1152 (issued March 28, 2023); see G.B., Docket No. 19-1762 (issued March 10, 2020);

Leona N. Travis, 43 ECAB 227, 240 (1991).

20 See F.D., Docket No. 19-1663 (issued March 10, 2020); see also P.O., Docket No. 13-0092 (issued 

April 4, 2013).

21 Id.
6

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 6, 2023 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 29, 2023

Washington, DC

Alec J. Koromilas, 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