United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tampa, FL, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1841 

Issued: June 8, 2016 

Appearances: Case Submitted on the Record

Joanne M. Prescott, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 8, 2015 appellant, through counsel, filed a timely appeal from a March 13, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs’ (OWCP).1

 As more 

than 180 days elapsed between the last merit decision dated January 23, 2014 and the filing of 

this appeal, pursuant to the Federal Employees’ Compensation Act2

 (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 refused to reopen appellant’s case for further 

review of the merits as her request for reconsideration was untimely filed and failed to 

demonstrate clear evidence of error. 

 1

 Appellant filed a timely request for oral argument in this case. By order dated May 6, 2016, the Board exercised 

its discretion and denied appellant’s request for oral argument as the Board does not have jurisdiction over the 

merits of the case, and oral argument would further delay issuance of a Board decision and not serve a useful 

purpose. Order Denying Request for Oral Argument, Docket No. 15-1841 (issued May 6, 2016). 

2

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On June 9, 2003 appellant, then a 48-year-old mail processing clerk, filed an occupational 

disease claim (Form CA-2) alleging that her asthma and anxiety were aggravated due to 

excessive dust exposure while in the performance of duty in May 2002. OWCP accepted the 

claim for unspecified asthma with acute exacerbation, unspecified anxiety state, and specified 

acute sinusitis. Appellant stopped work intermittently and received medical and wage-loss 

compensation. She filed for retirement on May 29, 2003. 

Appellant sought treatment for her conditions with Dr. Alan R. Varraux, Board-certified 

in internal medicine, and Dr. Anthony E. Douglas, Board-certified in internal medicine. On 

January 22, 2013 Dr. Varraux requested OWCP provide authorization for a gym membership 

from January 1 through December 31, 2013. 

By letter dated February 20, 2013, OWCP advised appellant that the evidence was 

insufficient to approve the request for a health club membership. It requested that she provide a 

statement from her physician addressing why the membership was necessary and appropriate for 

effective treatment of her accepted work-related condition of aggravation of asthma, aggravation 

of anxiety, and acute sinusitis. OWCP also provided a series of questions pertaining to health 

club memberships. Appellant was afforded 30 days to submit this additional evidence. 

In a December 19, 2013 report, Dr. Douglas provided an exercise assessment 

recommending stationary recumbent bike no more than 15 minutes for three days a week. He 

restricted appellant from outdoor exercise due to asthma and also restricted deep impact exercise 

which would cause shortness of breath and anxiety. Dr. Douglas noted that the restrictions were 

valid for one year. In a December 19, 2013 authorization request form, he requested OWCP 

authorize appellant’s gym membership from January 1 through December 31, 2013. 

By decision dated January 23, 2014, OWCP denied appellant’s request for authorization 

for a health club membership. 

In an August 11, 2014 letter addressed to OWCP, received on August 20, 2014, appellant 

stated that she was submitting a medical opinion by pulmonary specialist Dr. Varraux in 

accordance with section 8103 explaining why a health club membership was necessary. 

Appellant noted her claim number and requested that OWCP review and approve authorization 

for her health club membership. 

Accompanying appellant’s letter was a June 3, 2014 letter from Dr. Varraux addressed to 

OWCP. Dr. Varraux informed OWCP that he was responding to its letters dated February 20, 

2013 and January 23, 2014 regarding questions pertaining to membership at a health club and 

requested OWCP review and approve the health club membership. He provided an explanation 

pertaining to the need for aquatic/aerobic classes with proper equipment resources and further 

detailed why it was necessary with respect to appellant’s work-related conditions. 

By letter dated January 26, 2015, appellant requested OWCP to review the denial of her 

gym membership. She noted that she had previously submitted a letter on August 11, 2014, 

accompanied with Dr. Varraux’s June 3, 2014 report, which provided detailed explanation 
3

regarding her supervised physical training as it pertained to her injuries. Appellant further stated 

that she had also submitted an October 7, 2014 reconsideration request pertaining to the denial of 

her request for a health club membership. She submitted a copy of the October 7, 2014 

reconsideration request with her January 26, 2015 letter. OWCP received these documents on 

February 2, 2015. 

By decision dated March 13, 2015, OWCP denied appellant’s reconsideration request as 

untimely filed and failing to demonstrate clear evidence of error. It found that there was no 

record of the October 7, 2014 reconsideration request until February 2, 2015 which rendered it 

untimely for reconsideration of the January 23, 2014 decision. 

LEGAL PRECEDENT 

To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a 

claimant’s application for review must be received within one year of the date of that decision.3

 

The Board has found that the imposition of the one-year limitation does not constitute an abuse 

of the discretionary authority granted OWCP under section 8128(a) of FECA.4

 

OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year 

filing limitation, if the claimant’s application for review demonstrates clear evidence of error on 

the part of OWCP in its most recent merit decision. To demonstrate clear evidence of error, a 

claimant must submit evidence relevant to the issue decided by OWCP. The evidence must be 

positive, precise, and explicit and it must manifest on its face that OWCP committed an error.5

To demonstrate clear evidence of error, the evidence submitted must not only be of 

sufficient probative value to create a conflicting 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.6

Evidence that does not raise a substantial question concerning the correctness of OWCP’s 

decision is insufficient to demonstrate clear evidence of error.7 It is not enough merely to show 

that the evidence could be construed so as to produce a contrary conclusion.8

 This entails a 

limited review by OWCP of the evidence previously of record and whether the new evidence 

 3

 20 C.F.R. § 10.607(a). 

4

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). 

5

 20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997). 

6 Annie L. Billingsley, 50 ECAB 210 (1998). 

7 Jimmy L. Day, 48 ECAB 652 (1997). 

8 Id. 
4

demonstrates clear error on the part of OWCP.9 The Board makes an independent determination 

as to whether a claimant has demonstrated clear evidence of error on the part of OWCP.10

ANALYSIS 

In its March 13, 2015 decision, OWCP denied appellant’s request for reconsideration of 

the January 23, 2014 decision, finding that it was untimely filed and failed to demonstrate clear 

evidence of error. The Board finds, however, that OWCP improperly determined that her 

request for reconsideration was untimely filed within the one-year time limitation period set forth 

in 20 C.F.R. § 10.607.11 

On January 23, 2014 OWCP issued a decision denying authorization for a health club 

membership finding that the medical evidence of record failed to establish how it was necessary 

in relation to her accepted work-related conditions. Accordingly, appellant had until January 23, 

2015 to make a timely request for reconsideration.12 OWCP determined her request for 

reconsideration was received on February 2, 2015. The Board finds, however, that appellant had 

submitted a request for reconsideration of the January 23, 2014 decision on August 20, 2014 and 

submitted evidence and argument in support of her request, within the required one-year time 

period.13

The record contains a letter from appellant addressed to OWCP and received on 

August 20, 2014 regarding authorization for health club membership. She informed OWCP that 

she was submitting a medical opinion by pulmonary specialist Dr. Varraux in accordance with 

section 8103 which explained why a health club membership was necessary. Appellant noted 

her claim number and requested that OWCP review and approve authorization for her health club 

membership. Although this letter received by OWCP on August 20, 2014 does not mention the 

word reconsideration, the Board has found that there may be a request for reconsideration in 

situations where a letter does not contain the word reconsideration.14 No special form is required 

as long as the request is made in writing, identifies the decision and specific issue to be 

considered, and is accompanied by relevant and pertinent new evidence not previously 

considered.15 The word reconsideration does not need to be stated in the request for it to be 

 9 Id. 

10 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993). 

11 J.L., Docket No. 12-1181 (issued November 1, 2012). 

12 OWCP’s procedures were changed effective August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Reconsiderations, Chapter 2.1602.4 (October 2011). Section 10.607 of the new regulations provide that the 

date of the reconsideration request for timeliness purposes was changed from the date the request was mailed to the 

date the request was received by OWCP. 20 C.F.R. § 10.607 (2011). 

13 Id. 

14 Jack D. Johnson, 57 ECAB 593 (2006); Vicente P. Taimanglo, 45 ECAB 504 (1994). 

15 Id. 
5

considered valid, but sufficient detail should be provided to discern the decision being 

contested.16 

Appellant also submitted a June 3, 2014 letter from Dr. Varraux who provided a detailed 

explanation pertaining to the need for a health club membership as it related to appellant’s workrelated conditions. Moreover, Dr. Varraux’s letter to OWCP identified the February 20, 2013 

development letter and January 23, 2014 decision as he noted that he was responding to 

questions posed in these documents. Thus, the Board finds that appellant’s August 11, 2014 

letter, submitted with Dr. Varraux’s June 3, 2014 letter, constituted a timely request for 

reconsideration.17

Thus, appellant filed a request for reconsideration within one year of the January 23, 

2014 OWCP decision. The Board finds that OWCP improperly denied her reconsideration 

request under the legal standard for untimely requests for reconsideration. OWCP should have 

applied the standard reserved for timely reconsideration requests as set forth in 20 C.F.R. 

§ 10.606(b)(3).18 Since it erroneously reviewed the evidence submitted in support of appellant’s 

reconsideration request under the more stringent clear evidence of error standard, the Board will 

remand the case for review of this evidence under the proper standard of review for a timely 

reconsideration request. 

CONCLUSION 

The Board finds that OWCP improperly found that appellant’s request for 

reconsideration of OWCP’s January 23, 2014 decision was untimely filed. 

 16 See M.H., Docket No. 14-1389 (issued October 22, 2014). 

17 C.M., Docket No. 11-1988 (issued June 6, 2012). 

18 20 C.F.R. § 10.606(b)(3) of OWCP’s regulations provide that an application for reconsideration must be in 

writing and set forth arguments and contain evidence that either: (1) shows that OWCP erroneously applied or 

interpreted a specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; or 

(3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 
6

ORDER 

IT IS HEREBY ORDERED THAT the March 13, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for action consistent with this 

decision. 

Issued: June 8, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board