United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.L., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

RANDOLPH AIR FORCE BASE, Randolph, TX, 

Employer 

__________________________________________ 

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Docket No. 13-2156 

Issued: March 13, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On September 23, 2013 appellant filed a timely appeal from a May 30, 2013 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for a 

review of the written record.1

 Pursuant to the Federal Employees’ Compensation Act2 (FECA) 

and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this 

case. 

 1

 The last merit decision in this case was the January 26, 2012 decision denying his occupational disease claim. 

For final adverse decisions of OWCP issued on or after November 19, 2008, a claimant must file an appeal within 

180 days of the decision. 20 C.F.R. § 501.3(e). Because more than 180 days elapsed from the most recent merit 

decision dated January 26, 2012 to the filing of this appeal on September 23, 2013, the Board lacks jurisdiction to 

review the merits of this case. 

2

 5 U.S.C. § 8101 et seq.
2

ISSUE 

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

written record as untimely filed. 

FACTUAL HISTORY 

On November 1, 2011 appellant, then a 62-year-old maritime examiner and identifier, 

filed an occupational disease claim alleging that he sustained swelling and strain in his joints as a 

result of heavy lifting, climbing, pushing and pulling at work. He did not stop work. 

On November 29, 2011 OWCP advised appellant that no evidence was received in 

support of his claim. It requested additional evidence specifically a medical report from a 

physician with a diagnosis and explanation of how appellant’s injury resulted from his 

employment. 

Appellant submitted a description of his position as an identifier and various personnel 

records. 

In an October 20, 2011 discharge summary report, Dr. Sean Wang, Board-certified in 

emergency medicine listed instructions for a muscle strain and prescribed narcotic medication. 

In a decision dated January 26, 2012, OWCP denied appellant’s claim finding insufficient 

medical evidence to establish that he sustained a diagnosed medical condition as a result of his 

employment. 

In an appeal request form dated April 24, 2013 and received on April 29, 2013, appellant 

requested a review of the written record.3

 He submitted diagnostic reports dated June 26, 2012 

for complaints of abdominal pain and the April 3 and May 24, 2013 reports of Dr. Bala 

Viswanathan, a Board-certified surgeon. 

By decision dated May 30, 2013, OWCP’s hearing representative denied appellant’s 

request for a review of the written record as untimely filed. She found that his request was 

postmarked April 24, 2013, more than 30 days after OWCP’s decision issued on 

January 26, 2012. OWCP exercised its discretion by considering appellant’s request and further 

denied it as the issue involved could be addressed equally well pursuant to a valid request for 

reconsideration and submitting evidence not previously considered to support his claim. 

LEGAL PRECEDENT 

Section 8124(b)(1) of FECA provides that 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.4 

 3

 The Board notes that appellant placed check marks indicating that he wanted both an oral hearing and a review 

of the written record, however, he also circled the request for review of the written record. 

4

 5 U.S.C. § 8124(b)(1). 
3

Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA 

provide that a claimant shall be afforded a choice of an oral hearing or a review of the written 

record by a representative of the Secretary.5 A claimant is entitled to a hearing or review of the 

written record as a matter of right only if the request is filed within the requisite 30 days as 

determined by postmark or other carrier’s date marking and before the claimant has requested 

reconsideration.6

 Although there is no right to a review of the written record or an oral hearing if 

not requested within the 30-day time period, OWCP may within its discretionary powers grant or 

deny appellant’s request and must exercise its discretion.7

 Its procedures require that it exercise 

its discretion to grant or deny a hearing when the request is untimely or made after 

reconsideration under section 8128(a).8

ANALYSIS 

On January 26, 2012 OWCP denied appellant’s occupational disease claim finding 

insufficient medical evidence to establish that he sustained a diagnosed condition as a result of 

his employment. In an appeal form dated and postmarked April 24, 2013, appellant requested a 

review of the written record. OWCP received the request on April 29, 2013, which was more 

than 30 days after it issued its January 26, 2012 decision.9

 Section 8124(b)(1) is unequivocal on 

the time limitation for requesting a hearing or a review of the written record.10 The Board finds 

that OWCP properly determined that appellant’s request was not timely. Thus, appellant was not 

entitled to a review of the written record or an oral hearing as a matter of statutory right under 

section 8124(b)(1) of FECA. 

Although appellant’s request for review of the written record was untimely, OWCP has 

the discretionary authority to grant the request and it must exercise such discretion. In the 

May 30, 2013 decision, it properly exercised its discretion by notifying appellant that it had 

considered the matter in relation to the issue involved and indicated that additional argument and 

evidence could be submitted with a request for reconsideration. The Board has held that the only 

limitation on OWCP’s authority is reasonableness and an abuse of discretion is generally shown 

through proof of manifest error, a clearly unreasonable exercise of judgment or actions taken 

which are contrary to both logic and probable deductions from established facts.11 In this case, 

 5

 20 C.F.R. §§ 10.616, 10.617. 

6 Id. at § 10.616(a). 

7 Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999). 

8 See R.T., Docket No. 08-408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Hearings and Review of the Written Record, Chapter 2.1601.2(a) (October 2011). 

9

 The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review of the 

written record commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB 

90 (1989). The Board notes that appellant did not submit a written request for a review of the written record by 

February 25, 2012, within 30 calendar days after OWCP’s March 23, 2012 decision. 

10 William F. Osborne, 46 ECAB 198 (1994). 

11 Samuel R. Johnson, 51 ECAB 612 (2000). 
4

the evidence of record does not indicate that OWCP abused its discretion in its denial of 

appellant’s request. Accordingly, the Board finds that it properly denied appellant’s request for a 

review of the written record. 

On appeal, appellant stated that his symptoms were reaggravated due to the work 

required in his current position and that he needed an operation as soon as possible. The Board 

notes that it does not have jurisdiction to review the merits of his claim but may only review the 

May 30, 2013 nonmerit decision denying his request for a review of the written record. Because 

appellant’s request was not filed within 30 days, the Board finds that OWCP properly denied his 

request as untimely filed. 

CONCLUSION 

The Board further finds that OWCP properly denied appellant’s request for a review of 

the written record pursuant to 5 U.S.C. § 8124(b)(1). 

ORDER 

IT IS HEREBY ORDERED THAT the May 30, 2013 merit decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 13, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board