United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.T., Appellant

and

DEPARTMENT OF THE ARMY, McALESTER

ARMYAMMUNITION PLANT, McAlester, OK, 

Employer

__________________________________________

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Docket No. 22-1019

Issued: April 10, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 24, 2022 appellant filed a timely appeal from April 25 and June 8, 2022 nonmerit 

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

has elapsed from OWCP’s last merit decision, dated November 5, 2019, 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.

ISSUES

The issues are: (1) whether OWCP properly denied appellant’s request for reconsideration, 

finding that it was untimely filed and failed to demonstrate clear evidence of error; and (2) whether 

OWCP properly denied appellant’s request for an oral hearing as reconsideration was previously 

requested.

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On September 12, 2019 appellant, then a 30-year-old explosives worker/materials handler, 

filed an occupational disease claim (Form CA-2) alleging that she sustained bilateral carpal tunnel 

syndrome due to factors of her federal employment, including using hand tools, pushing buggies, 

cleaning lugs, and performing other repetitive work duties on a daily basis. She noted that she first 

became aware of her claimed injury on January 1, 2019 and realized its relation to her federal 

employment on June 26, 2019. Appellant stopped work on July 8, 2019.

In an accompanying statement, appellant indicated that her job required her to repetitively 

push heavy objects, squeeze pliers, and make twisting and swirling motions with a wire brush. 

She indicated that during each 50-hour week she worked in 2018 she had to push 30 bomb carts 

carrying three bombs weighing 2,000 pounds each, pull three plugs out of each bomb with pliers,

and clean the threads of each bomb with a wire brush. Appellant submitted a description of the 

position of explosives worker/materials handler and a November 25, 2018 notification of 

personnel action Standard Form (SF) 50 memorializing a within-grade basic pay increase in the 

position. 

In an October 4, 2019 development letter, OWCP notified appellant of the deficiencies of 

her claim. It advised her of the type of factual and medical evidence needed and provided a 

questionnaire for her completion. In a separate development letter of even date, OWCP requested

that the employing establishment provide comments from a knowledgeable supervisor regarding 

appellant’s allegations. It afforded both parties 30 days to respond.

In an October 17, 2019 letter, appellant’s supervisor indicated that appellant removed plugs

from each 2,000-pound bomb with pliers, sprayed the bomb threads with an alcohol solution, and 

cleaned the lug holes with a wire brush. The supervisor maintained that appellant cleaned six lug 

holes at a time, a task that would take approximately one minute. She asserted that, in a normal 

work shift of approximately seven hours, appellant would clean a total of 174 lug holes during a 

normal 10-hour work shift. The supervisor indicated that she generally had her workers perform 

other tasks to avoid too much repetition of the same task.

Appellant submitted an October 23, 2019 report from Dr. Patrick R. Gannon, a Boardcertified orthopedic surgeon, who indicated that appellant reported that she had bilateral wrist

pain/numbness, which she believed was caused by repetitive movement of her wrists at work. He 

reported physical examination findings, including the results of range of motion (ROM) testing of 

the wrists. Dr. Gannon diagnosed bilateral carpal tunnel syndrome and bilateral cubital tunnel 

syndrome, and ordered diagnostic testing of the wrists.

By decision dated November 5, 2019, OWCP accepted the implicated employment factors; 

however, it denied her claim, finding that she did not submit sufficient medical evidence to 

establish a medical condition casually related to the accepted employment factors.

On April 21, 2022 appellant requested reconsideration of the November 5, 2019 decision.

In an October 22, 2019 report, Dr. Gannon noted that appellant reported numbness and 

tingling in her wrists. He reported physical examination findings, including bilateral elbow 
3

tenderness in the cubital tunnels and bilateral positive Tinel’s signs. Dr. Gannon diagnosed 

bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome, left arm pain, and right wrist 

pain. He indicated that appellant engaged in strenuous use of her hands at her federal job, including 

frequently pushing carts laden with 6,000 pounds of bombs, engaging in strenuous and repetitive 

use of pliers, and frequent cleaning with brushes. Dr. Gannon opined that these repetitive, 

strenuous work-related tasks are more likely than not responsible for, or at the very least severely 

aggravated, appellant’s carpal and cubital tunnel syndromes.

In an October 21, 2020 report, Dr. Matthew L. Jenkins, an osteopath and Board-certified 

family medicine specialist, indicated that appellant reported that she had been stung by a wasp 

approximately one hour prior to presenting to him. He provided physical examination findings 

and diagnosed hornet sting.

Appellant submitted a November 10, 2020 report from Dr. John W. Ellis, a Board-certified 

environmental and family medicine specialist, who indicated that appellant described her work 

duties, including pushing carts weighing 3,000 pounds and buggies weighing 500 pounds, pulling

three plugs out of each bomb with pliers, spraying the plugs with cleaning solution by using a 

device that vibrated, and cleaning the lug hole threads with a wire brush. Appellant advised that 

she performed this procedure on approximately 100 bombs per day. Dr. Ellis noted that appellant 

complained of pain and numbness in her upper extremities, including pain in the volar and radial 

aspect of her wrist and the medial and lateral aspects of her elbows.

2

 He reported the findings of 

his physical examination, noting that in each elbow appellant had mild tenderness to palpation 

over the medial and lateral epicondyles with negative Tinel’s sign. Appellant exhibited a positive 

Finkelstein test in each wrist/hand, and a positive Tinel’s sign over the median and ulnar nerves in 

each wrist/hand. Dr. Ellis diagnosed cervical strain and the following bilateral conditions: carpal 

tunnel syndrome, wrist tendinitis/de Quervain’s stenosing tenosynovitis, elbow cubital tunnel 

syndrome, medial/lateral epicondylitis, shoulder strain, and brachial plexus impingement.

In the portion of the report discussing the causal relationship between the diagnosed 

conditions and work duties, Dr. Ellis detailed FECA precedent and indicated that a given condition 

is compensable if employment factors contributed, in any way, to the condition. He opined that, 

based on his examination findings, review of the evidence, and education, training, and experience, 

that “the injuries, impairments and disabilities set forth in my diagnosis, findings and impairments, 

arose out of and in the course of the employee’s employment and that employment factors and 

work duties contributed to, aggravated and/or caused this employee’s said injuries, disabilities,

and impairments set forth in this report.” Dr. Ellis maintained that appellant’s repetitive heavy 

work caused multiple strains of the posterior cervical muscles, the lower cervical muscles, and 

shoulder girdle muscles, which caused straining of the acromioclavicular joint bilaterally. He 

indicated that appellant’s repetitive work with vibratory tools and with torquing and wiping caused 

the tendons of the medial and lateral aspects of both elbows to become hypertrophied. Appellant’s 

elbows then became inflamed with tendinitis and caused impingement of the ulnar nerves of the 

elbows, which in turn caused cubital tunnel syndrome with objective findings of ulnar nerve

impingement seen on an electromyogram/nerve conduction velocity (EMG/NCV) study. Dr. Ellis 

2 Dr. Ellis indicated that on June 18, 2020 appellant underwent right carpal tunnel and cubital tunnel releases. The 

procedures were not authorized by OWCP.
4

opined that appellant’s repetitive gripping and use of vibratory tools and spray wands caused 

strains of the volar aspect of both wrists and the radial aspect of both wrists with de Quervain’s 

stenosing tenosynovitis. He maintained that the hypertrophied tendons in the wrists then impinged 

the median nerve, a condition which constituted bilateral carpal tunnel syndrome found on the 

EMG/NCV study. Dr. Ellis noted, “[t]he complexity of her symptoms of the upper extremities 

including the neck are consistent with her heavy manual work being aggravated, contributing to 

and accelerating her conditions in a young woman that would not have occurred if she had not 

been working at the [employing establishment].” He opined that appellant was temporarily 

partially disabled and could not perform overtime work. In a November 10, 2020 work status 

form, Dr. Ellis indicated that appellant could work eight hours per day with restrictions, including 

continuously lifting no more than 10 pounds, intermittently lifting no more than 20 pounds, and 

reaching above shoulder level for no more than four hours per day. Appellant could not engage in 

any climbing.

In December 9, 2020, March 10, May 5, June 23, September 22, and October 20, 2021 

reports, Dr. Ellis restated his discussion of appellant’s work duties and diagnoses as he provided 

in his November 10, 2020 report. He provided the same discussion of the causal relationship 

between the diagnosed conditions and work duties as he provided in his November 10, 2020 report.

In December 9, 2020 and January 28, March 10, April 28, and May 3 and 5, 2021 work 

status reports, Dr. Ellis indicated that appellant could work eight hours per day and provided work 

restrictions, including restrictions on lifting, reaching above shoulder level, and climbing.

By decision dated April 25, 2022, OWCP denied appellant’s request for reconsideration, 

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

On May 19, 2022 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review.

By decision dated June 8, 2022, OWCP determined that appellant was not entitled to an 

oral hearing as a matter of right because she had previously requested reconsideration of her claim

on April 21, 2022. OWCP, in its discretion, then considered appellant’s request and determined 

that the request was denied for the reason that the issue of the case could equally well be addressed 

by requesting reconsideration and submitting new evidence.

LEGAL PRECEDENT -- ISSUE 1

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 

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

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 request for reconsideration 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 

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 request for reconsideration 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 note 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 

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

6 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); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB 

499 (1990).

8 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).

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 April 6, 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 April 29, 2020).

13 J.M., Docket No. 19-1842 (issued April 23, 2020).

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

December 1, 2016).

15 K.W., Docket No. 19-1808 (issued April 2, 2020).
6

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

ANALYSIS -- ISSUE 1

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

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

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 April 21, 2022, more than one year after issuance of its 

November 5, 2019 merit decision, it was untimely filed. Consequently, she must demonstrate clear 

evidence of error by OWCP in its November 5, 2019 merit decision.

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

Appellant submitted a November 10, 2020 report from Dr. Ellis who provided a description 

of appellant’s work duties, reported physical examination findings, and diagnosed cervical strain 

and numerous bilateral upper extremity conditions, including carpal tunnel syndrome and cubital 

tunnel syndrome. In the portion of the report discussing the causal relationship between the 

diagnosed conditions and work duties, he opined that “the injuries, impairments and disabilities 

set forth in my diagnosis, findings and impairments, arose out of and in the course of the 

employee’s employment and that employment factors and work duties contributed to, aggravated 

and/or caused this employee’s said injuries, disabilities, and impairments set forth in this report.”

Dr. Ellis maintained that appellant’s repetitive heavy work caused multiple strains of the posterior 

cervical muscles, the lower cervical muscles, and shoulder girdle muscles, which caused straining 

of the acromioclavicular joint bilaterally and caused the tendons of the medial and lateral aspects 

of both elbows to become hypertrophied and inflamed. He asserted that this circumstance caused 

impingement of the ulnar nerves of the elbows, which in turn caused cubital tunnel syndrome. 

Dr. Ellis opined that appellant’s repetitive gripping and use of vibratory tools and spray wands 

caused strains of the volar aspect of both wrists and the radial aspect of both wrists with 

de Quervain’s stenosing tenosynovitis. He maintained that the hypertrophied tendons in the wrists 

then impinged the median nerve, a condition that constituted bilateral carpal tunnel syndrome. 

Dr. Ellis asserted that appellant’s cervical and upper extremity symptoms were consistent with her 

heavy manual work and “would not have occurred if she had not been working at the [employing 

establishment].” He opined that appellant was temporarily partially disabled and could not 

perform overtime work. In December 9, 2020, March 10, May 5, June 23, September 22, and 

October 20, 2021 reports, Dr. Ellis repeated his diagnoses and opinion on causal relationship 

between the diagnosed conditions and work duties as he provided in his November 10, 2020 report.

16 Id.

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

18 See supra notes 11 and 13.
7

The Board finds that these reports of Dr. Ellis do not raise a substantial question concerning 

the correctness of OWCP’s November 5, 2019 decision. These reports do not demonstrate that 

OWCP improperly concluded in its November 5, 2019 decision that appellant failed to establish a

work-related injury.19 As noted above, clear evidence of error is intended to represent a difficult 

standard. 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. Instead, the evidence must shift the weight in 

appellant’s favor.20 The reports of Dr. Ellis are insufficient to shift the weight in appellant’s favor 

with respect to her claim.

In an October 22, 2019 report, Dr. Gannon diagnosed bilateral carpal tunnel syndrome, 

bilateral cubital tunnel syndrome, left arm pain, and right wrist pain. He indicated that appellant

engaged in strenuous use of her hands at her federal job, including frequently pushing carts laden 

with 6,000 pounds of bombs, engaging in strenuous and repetitive use of pliers, and frequent 

cleaning with brushes. Dr. Gannon opined that these repetitive, strenuous work-related tasks were

more likely than not responsible for, or at the very least severely aggravated, appellant’s carpal 

and cubital tunnel syndromes. The Board finds, however, that this report does not raise a 

substantial question concerning the correctness of OWCP’s November 5, 2019 decision.

21

Appellant submitted an October 21, 2020 report, wherein Dr. Jenkins provided physical 

examination findings and diagnosed hornet sting. This report does not establish clear evidence of 

error in OWCP’s November 5, 2019 decision because it bears no relationship to appellant’s claim 

and thus does not raise a substantial question concerning the correctness of OWCP’s November 5, 

2019 decision.22 

In November 10 and December 9, 2020, and January 28, March 10, April 28, and May 3 

and 5, 2021 work status reports, Dr. Ellis indicated that appellant could work eight hours per day 

and provided work restrictions, including restrictions on lifting, reaching above shoulder level, and 

climbing. However, these reports do not raise a substantial question concerning the correctness of 

OWCP’s November 5, 2019 decision.23

The Board finds that the evidence submitted on reconsideration does not demonstrate on 

its face that OWCP committed error when it found in its November 5, 2019 decision that appellant 

failed to establish a medical condition causally related to the accepted employment factors.

24

 

Therefore, OWCP properly denied her untimely request for reconsideration.

19 See supra notes 10 and 15.

20 See supra notes 13, 14, and 16.

21 Id.

22 Id.

23 Id.

24 See S.F., Docket No. 09-0270 (issued August 26, 2009).
8

LEGAL PRECEDENT -- ISSUE 2

Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an 

OWCP representative, provides in pertinent part: “Before review under section 8128(a) of this title, 

a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request 

made within 30 days after the date of the issuance of the decision, to a hearing on his claim before a 

representative of the Secretary.”

25

 Section 10.615 of OWCP’s federal regulations, implementing 

this section of FECA, provides that a claimant who requests a hearing can choose between two 

formats, either an oral hearing or a review of the written record by an OWCP hearing 

representative.26 As section 8124(b)(1) is unequivocal in setting forth the time limitation for 

requesting a hearing, a claimant is not entitled to a hearing as a matter of right unless the request is 

made within the requisite 30 days.27 The date of filing is fixed by postmark or other carrier’s date 

marking.28

The Board has held that OWCP, in its broad discretionary authority in the administration of 

FECA, has the power to hold hearings in certain circumstances where no legal provision was made 

for such hearings and that OWCP must exercise this discretionary authority in deciding whether to 

grant a hearing.29 Specifically, the Board has held that OWCP has the discretion to grant or deny a 

hearing request on a claim involving an injury sustained prior to the enactment of the 1966 

amendments to FECA, which provided the right to a hearing,30 when the request is made after the 

30-day period for requesting a hearing,31 when the request is for a second hearing on the same issue,32

and when the request is made after a reconsideration request was previously submitted.33 In these 

instances, OWCP will determine whether a discretionary hearing should be granted or, if not, will 

so advise the claimant with reasons.34

25 5 U.S.C. § 8124(b)(1).

26 20 C.F.R. § 10.615.

27 Ella M. Garner, 36 ECAB 238, 241-42 (1984).

28 See 20 C.F.R. § 10.616(a).

29 Henry Moreno, 39 ECAB 475, 482 (1988).

30 Rudolph Bermann, 26 ECAB 354, 360 (1975).

31 E.R., Docket No. 20-1110 (issued December 23, 2020); Herbert C. Holley, 33 ECAB 140, 142 (1981).

32 D.M., Docket No. 19-0686 (issued November 13, 2019); Johnny S. Henderson, 34 ECAB 216, 219 (1982).

33 R.H., Docket No. 07-1658 (issued December 17, 2007); S.J., Docket No. 07-1037 (issued September 12, 2007). 

Section 10.616(a) of OWCP’s regulations provides that the claimant seeking a hearing must not have previously 

submitted a reconsideration request (whether or not it was granted) on the same decision. 20 C.F.R. § 10.616(a).

34 See Rudolph Bermann, supra note 27.
9

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for an oral hearing as 

reconsideration was previously requested.

The case record establishes that appellant requested a hearing on May 19, 2022, after she had 

requested reconsideration on April 21, 2022. Hence, the Board finds that she was not entitled to a 

hearing as a matter of right.35 OWCP, in its discretion, then properly considered appellant’s request 

and determined that the request was denied for the reason that the issue of the case could equally 

well be addressed by requesting reconsideration and submitting new evidence.36

The Board has held that as the only limitation on OWCP’s authority is reasonableness. 

Abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable 

exercise of judgment or actions taken which are contrary to logic and deductions from known facts.37 

The Board thus finds that OWCP properly denied appellant’s request for a hearing.

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. The Board 

further finds that OWCP properly denied her request for an oral hearing as reconsideration was 

previously requested.

35 See supra note 33.

36 See S.J., supra note 33.

37 See S.I., Docket No. 22-0538 (issued October 3, 2022); R.Z., Docket No. 10-1915 (issued May 19, 2011).
10

ORDER

IT IS HEREBY ORDERED THAT the April 25 and June 8, 2022 decisions of the Office 

of Workers’ Compensation Programs are affirmed.

Issued: April 10, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board