United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

V.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

New York, NY, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1487 

Issued: November 14, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On June 19, 2014 appellant filed a timely appeal from an April 2, 2014 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP) denying her request for an oral 

hearing by the Branch of Hearings and Review. Pursuant to the Federal Employees’ 

Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to 

review this nonmerit decision. The last merit decision of record was OWCP’s October 25, 2012 

decision. Because more than 180 days elapsed from issuance of the October 25, 2012 decision to 

the filing of this appeal, the Board lacks jurisdiction to review the merits of this case. 

ISSUE 

The issue is whether OWCP abused its discretion in denying appellant’s request for an 

oral hearing. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On August 1, 2012 appellant, then a 50-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that she developed cervical radiculopathy with muscle 

dystonia as a result of her repetitive employment duties. She first became aware of her condition 

on April 21, 2011. In support of her claim, she submitted a March 11, 2012 medical report from 

Dr. Gary Starkman, a Board-certified neurologist. By letter dated August 29, 2012, the 

employing establishment controverted the claim. 

By letter dated September 19, 2012, OWCP informed appellant that the evidence of 

record was insufficient to support her claim. Appellant was advised of the medical and factual 

evidence needed and asked to respond within 30 days. 

On October 3, 2012 appellant submitted a narrative statement describing her employment 

duties, injury and need for treatment. She stated that she was off work due to a May 16, 2007 

traumatic injury. Although appellant was not working, her injury was caused by her repetitive 

employment duties. She stated that her physician only recently informed her that her traumatic 

injury was actually an exacerbation of a condition caused by her repetitive employment duties. 

Diagnostic reports dated July 24 and 25, 2012 were also submitted. 

By decision dated October 25, 2012, OWCP denied appellant’s claim. It found that the 

evidence submitted was not sufficient to establish that she was injured in the performance of 

duty. The evidence of record failed to establish that her medical condition was causally related 

to her duties as a mail handler. 

On an appeal request form dated November 24, 2012, received by OWCP on 

December 3, 2012, appellant requested an oral hearing before the Branch of Hearings and 

Review. The request for hearing was postmarked November 28, 2012. 

By decision dated April 2, 2014, the Branch of Hearings and Review denied appellant’s 

request for an oral hearing finding that her request was not made within 30 days of the 

October 25, 2012 OWCP decision. The Branch of Hearings and Review further determined that 

the issue in the case could equally well be addressed by requesting reconsideration before OWCP 

and submitting evidence not previously considered. 

LEGAL PRECEDENT 

Section 8124(b)(1) of FECA provides that 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 or 

her claim before a representative of the Secretary.2 Section 10.615 of the federal regulations 

implementing this section of FECA provides that a claimant shall be afforded a choice of an oral 

hearing or a review of the written record.3

 OWCP regulations provide that the request must be 

sent within 30 days of the date of the decision for which a hearing is sought and also that the 

 2 Id. at § 8124(b)(1). 

3

 20 C.F.R. § 10.615. 
3

claimant must not have previously submitted a reconsideration request (whether or not it was 

granted) on the same decision.4

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

of FECA,5 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.6

 OWCP procedures, which require OWCP to exercise its discretion 

to grant or deny a hearing when the request is untimely or made after reconsideration, are a 

proper interpretation of FECA and Board precedent.7

ANALYSIS 

In the present case, appellant requested an oral hearing on November 24, 2012. OWCP 

found that the request was postmarked on November 28, 2012. Appellant’s request was made 

more than 30 days after the date of issuance of OWCP’s prior October 25, 2012 merit decision. 

Therefore, OWCP properly found in its April 2, 2014 decision that appellant was not entitled to 

an oral hearing or examination of the written record as a matter of right because her request for a 

hearing was not made within 30 days of its October 25, 2012 decision.8

OWCP has the discretionary authority to grant a hearing if the request was not timely 

filed. In its April 2, 2014 decision, it considered the issue involved and exercised its discretion 

when it denied appellant’s hearing request and determined that she could equally well address 

the issue by requesting reconsideration and submitting new evidence. 

The Board finds that OWCP abused its discretion by denying appellant’s request for an 

oral hearing. Appellant requested an oral hearing on November 28, 2012, 34 days after OWCP’s 

October 25, 2012 merit decision. OWCP did not issue a decision denying appellant’s hearing 

request until April 2, 2014, a delay of more than 15 months.9 The April 2, 2014 decision 

incorrectly stated that appellant could equally address the issue in the case by requesting 

reconsideration, as any reconsideration, but the delay in issuing a decision on appellant’s request 

denied her the opportunity to appeal the October 25, 2012 merit decision to the Board. When 

OWCP delays a decision and such delay jeopardizes the claimant’s right for review of the merits 

by the Board, it should conduct a merit review.10 By issuing a nonmerit decision denying 

appellant’s request for an oral hearing on April 2, 2014, OWCP effectively denied appellant an 

 4 Id. at § 10.616(a). 

5

 5 U.S.C. §§ 8101-8193. 

6 Marilyn F. Wilson, 52 ECAB 347 (2001). 

7 Teresa M. Valle, 57 ECAB 542 (2006). 

8

 20 C.F.R. § 10.616(a); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the 

Written Record, Chapter 2.1601.4(a) (October 2011). 

9 M.P., Docket No. 09-1916 (issued March 12, 2010). 

10 D.M., Docket No. 08-1814 (issued January 16, 2009); W.H. Docket No. 06-1515 (issued April 9, 2007); R.M., 

Docket No. 06-2162 (issued March 14, 2007); See also Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reconsiderations, Chapter 2.1602.7a (October 2011). 
4

opportunity to obtain a merit review of OWCP’s October 25, 2012 decision.11 Given that such 

delay precluded appellant from seeking a merit review, the Board will remand the case to OWCP 

for further merit review in order to protect her appeal rights.12 Following such other 

development of the record as it deems necessary, OWCP shall issue an appropriate merit 

decision.13

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s request for an oral hearing. 

ORDER 

IT IS HEREBY ORDERED THAT the April 2, 2014 decision of the Office of 

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

consistent with this decision. 

Issued: November 14, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 11 A.M., Docket No. 08-2153 (issued May 12, 2009). 

12 C.J., Docket No. 09-2103 (issued June 1, 2010). 

13 Janice M. Hatcher, 55 ECAB 155 (2003); Joseph L. Cabral, 44 ECAB 152 (1992).