United States Department of Labor

Employees’ Compensation Appeals Board

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B.E., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE

Bozeman, MT, Employer

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Docket No. 22-0283

Issued: February 10, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

On December 14, 2021 appellant filed a timely appeal from a September 28, 2021 nonmerit

decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate

Boards assigned the appeal Docket No. 22-0283.

1

On July 30, 2020 appellant, then a 65-year-old rural delivery specialist, filed a traumatic 

injury claim (Form CA-1) alleging that on July 21, 2020 he injured his left elbow while in the 

performance of his duties. He indicated that he felt pain in the inside of his left elbow while sorting 

and casing mail. Appellant stopped work on July 23, 2020. 

A duty status report (Form CA-17) dated July 22, 2020 and a medical status form dated 

July 29, 2020, both by an unknown healthcare provider, noted a date of injury of July 21, 2020 

and a diagnosis of medial epicondylitis of the left elbow.

1 The Board notes that, following the September 28, 2021 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

In a July 31, 2020 development letter, OWCP informed appellant that the evidence it had 

received was insufficient to establish his claim. It advised him of the type of factual and medical 

evidence necessary and afforded him 30 days to submit the necessary evidence. 

OWCP thereafter received a July 22, 2020 medical report by Dr. Gwendolyn G. McCall, a 

Board-certified family physician, who noted that appellant related a history of worsening left 

elbow pain since July 21, 2020. Dr. McCall performed a physical examination and diagnosed

medial epicondylitis of the left elbow. 

In a report dated August 5, 2020, Dr. Justin Eisel, a Board-certified family physician, noted 

a date of injury of July 21, 2020 and that appellant was out of work due to left arm pain and 

limitations. He performed a physical examination and diagnosed left medial epicondylitis. 

In an August 11, 2020 response to OWCP’s questionnaire, appellant indicated that, after 

sorting his parcels on the morning of July 21, 2020, he began to feel pain in the inside of his left 

elbow, which he believed was caused by the repetitive motion of his work duties. He noted that 

his medical condition may have been a repetitive motion injury and not limited to a single traumatic 

event. Appellant further related that the pain increased throughout the next day of work on July 22, 

2020 and he reported the injury to his supervisor. 

In an August 26, 2020 report, Dr. Dana Myers Sauerwein, a Board-certified internist, noted 

appellant’s ongoing complaints and diagnosed left elbow medial epicondylitis. 

By decision dated September 2, 2020, OWCP denied appellant’s traumatic injury claim, 

finding that he had not submitted medical evidence establishing causal relationship between his 

diagnosed conditions and the accepted July 21, 2020 employment incident. 

OWCP continued to receive evidence including a September 15, 2020 medical report by

Dr. Eisel, who diagnosed medial epicondylitis of the left elbow and opined that the condition was 

consistent with appellant reaching to retrieve mail parcels during his delivery route.

On October 1, 2020 appellant requested a review of the written record by a representative 

of OWCP’s Branch and Hearings Review. In support of his request, he submitted a September 18, 

2020 narrative report by Dr. Eisel who opined that frequent, repetitive grabbing and sorting of 

letters and packages with the left upper extremity while delivering mail caused appellant’s left 

medial epicondylitis. 

By decision dated December 22, 2020, an OWCP hearing representative affirmed the 

September 2, 2020 decision.

On September 21, 2021 appellant requested reconsideration. He indicated that he had 

previously requested reconsideration of the December 22, 2020 decision on February 9, 2021. 

Appellant outlined legal arguments and a summary of his claim, and attached a narrative report by

Dr. Anthony Stark, a Board-certified physiatrist dated January 19, 2021. 

In his January 19, 2021 narrative report, Dr. Stark opined that sorting and casing letters for 

three to five hours per day, organizing cased items into delivery tubs, and reaching to make 

deliveries were the major contributing factors to appellant’s medial epicondylitis.
3

By decision dated September 28, 2021, OWCP determined in its September 28, 2021 

decision that appellant requested reconsideration of its September 2, 2020 decision. It denied his

reconsideration request, finding that it was untimely filed and failed to demonstrate clear evidence 

of error.

The Board, having duly considered the matter, finds that the case is not in posture for 

decision.

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.2 The last merit decision was OWCP’s December 22, 

2020 decision, in which OWCP’s hearing representative affirmed the denial of appellant’s 

traumatic injury claim. OWCP determined in its September 28, 2021 decision that he requested 

reconsideration of its September 2, 2020 decision outside of the one-year time limitation. The last 

merit decision, however, was the December 22, 2020 hearing representative’s decision. As 

appellant’s request was within one year of the date of the December 22, 2020 hearing 

representative’s decision, it was timely filed.3

OWCP applied the clear evidence of error legal standard in reviewing appellant’s request 

for reconsideration.

4

 This standard is the appropriate standard only for cases in which a 

reconsideration request is untimely filed.5 Therefore, the Board will remand the case to OWCP 

for application of the standard for reviewing a timely request for reconsideration as set forth at 

20 C.F.R. § 10.606(b)(3), to be followed by an appropriate decision.6 

2 20 C.F.R. § 10.607(a). 

3

Id.

4 Order Remanding Case, C.D., Docket No. 17-1074 (issued August 28, 2017); Order Remanding Case, A.M., 

Docket No. 16-1250 (issued December 20, 2016).

5 See V.M., Docket No. 18-1184 (issued July 10, 2019); Donna M. Campbell, 55 ECAB 241 (2004).

6 T.L., Docket No. 19-1110 (issued August 11, 2020); A.K., Docket No. 20-0003 (issued June 2, 2020); Order 

Remanding Case, J.H., Docket No. 18-1367 (issued July 17, 2019); E.S., Docket No. 17-0698 (issued July 14, 2017).
4

IT IS HEREBY ORDERED THAT the September 28, 2021 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this order of the Board.

Issued: February 10, 2023

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