United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Denver, CO, Employer 

__________________________________________ 

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Docket No. 14-1203 

Issued: November 24, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

On April 29, 2014 appellant filed a timely appeal from the April 9, 2014 decision of the 

Office of Workers’ Compensation Programs (OWCP), which found that his reconsideration 

request was untimely and did not present clear evidence of error. The appeal was docketed as 

No. 14-1203. 

The Board has duly considered the matter and finds that the case is not in posture for 

decision. In a July 5, 2011 decision, OWCP denied appellant’s claim for a traumatic injury, 

finding that the medical evidence was insufficient to establish causal relationship. Appeal rights 

provided with this decision gave appellant an option to request a hearing within 30 days. 

Appellant subsequently requested a hearing in a letter received by OWCP on August 9 but 

postmarked on August 4, 2011.1

 OWCP did not act on this request. In an appeal form dated 

March 16, 2014, appellant requested reconsideration. He indicated that he had previously 

requested reconsideration on March 16, 2012, but did not receive a response from OWCP. 

Appellant provided a copy of the request for reconsideration, which was received by OWCP on 

March 27, 2012. He submitted new arguments and new medical evidence in support of his 

                                                             1

 The postmark on the envelope was stamped August 4, 2011. OWCP regulations state that the timeliness of a 

hearing request is determined by postmark or other carrier’s date marking. 20 C.F.R. § 10.616(a). 
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claim. In a decision dated April 9, 2014, OWCP found that the request was untimely filed and 

failed to present clear evidence of error. 

Section 8124(b) of the Federal Employees’ Compensation Act states unequivocally that a 

claimant not satisfied with a decision of OWCP has a right, upon timely request, to a hearing 

before a representative of OWCP.2

 Any claimant dissatisfied with a decision of OWCP shall be 

afforded an opportunity for an oral hearing or, in lieu thereof, a review of the written record. A 

request for either an oral hearing or a review of the written record must be submitted, in writing, 

within 30 days (as determined by postmark or other carrier’s date marking) of the date of the 

decision for which a hearing is sought.3 If the request is not made within 30 days or if it is made 

after a reconsideration request, a claimant is not entitled to a hearing or a review of the written 

record as a matter of right.4

Appellant’s hearing request was postmarked August 4, 2011 and was within 30 days of 

the July 5, 2011 OWCP decision denying appellant’s claim. His hearing request was therefore 

timely. While appellant also requested reconsideration on March 27, 2012 and again on 

March 22, 2014, the Board has long held that, if there are simultaneous requests for a hearing 

and for reconsideration, OWCP is to proceed with adjudicating the hearing request before 

reconsideration.5 In this case, it was not proper for the claims examiner to exercise discretion 

that is within the purview of the Branch of Hearings and Review. Inasmuch as appellant’s 

hearing request was timely filed, the Board will set aside the April 9, 2014 decision and remand 

the case for OWCP to schedule an oral hearing. 

                                                             2

 5 U.S.C. § 8124(b); 20 C.F.R. § 10.616. 

3

 20 C.F.R. § 10.616(a). 

4 Claudio Vazquez, 52 ECAB 496 (2001). 

5 See D.M., Docket No. 10-2237 (issued June 28, 2011); See Eddie Franklin, 51 ECAB 223 (1999); Mary E. 

Schipske, 43 ECAB 318 (1991); Mary G. Allen, 40 ECAB 190 (1988); see also Federal (FECA) Procedure Manual, 

Part 2 -- Claims, Hearings & Review of the Written Record, Chapter 2.1601.3 (October 1992). 
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IT IS HEREBY ORDERED THAT the April 9, 2014 decision is set aside and the case 

remanded for OWCP to schedule an oral hearing. 

Issued: November 24, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board