United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.P., Appellant 

and 

DEPARTMENT OF THE ARMY, TANK 

AUTOMOTIVE & ARMAMENTS COMMAND, 

Texarkana, TX, Employer 

__________________________________________ 

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Docket No. 15-790 

Issued: June 3, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 26, 2015 appellant filed a timely appeal from the October 29, 2014 merit 

decision and a January 15, 2015 nonmerit decision of the Office of Workers’ Compensation 

Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 

ISSUES 

The issues are: (1) whether OWCP properly denied appellant’s request for a review of 

the written record under section 8124 of FECA; and (2) whether appellant has more than two 

percent permanent impairment of his right leg, for which he received a schedule award. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

OWCP accepted that on June 30, 2012 appellant, then a 53-year-old mechanic, sustained 

a right knee sprain and a lateral meniscus tear of his right knee due to climbing into an armored 

fighting vehicle at work. 

On July 8, 2013 appellant filed a claim for a schedule award due to his accepted work 

injuries. 

In an October 29, 2014 decision, OWCP granted appellant a schedule award for two 

percent permanent impairment of his right leg. The award ran for 5.76 weeks from April 16 to 

May 26, 2014. 

In a form dated November 28, 2014, appellant requested a review of the written record. 

A partial photocopy of the envelope in which the request was sent does not contain a legible 

postmark. 

By decision dated January 15, 2015, OWCP denied appellant’s request for a review of the 

written record under section 8124 of FECA. It stated that its decision was issued on October 29, 

2014 and his request for a review of the written record was postmarked December 2, 2014.2 

OWCP noted that since appellant’s request was not made within 30 days, he was not, as a matter 

of right, entitled to a review of the written record in his case. It, in its discretion, considered his 

request and determined that the issue in the case could equally well be addressed by requesting 

reconsideration and submitting evidence establishing entitlement to a greater amount of schedule 

award compensation. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8124(b)(1) of FECA provides that “a claimant ... 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.”3 Section 10.615 of OWCP’s federal regulations implementing 

this section of FECA, provides that a claimant shall be afforded the choice of an oral hearing or a 

review of the written record by a representative of the Secretary.4

 Thus, a claimant has a choice 

of requesting an oral hearing or a review of the written record pursuant to section 8124(b)(1) of 

FECA and its implementing regulations. OWCP’s regulations and Board precedent provide that 

the request for an oral hearing or review of the written record must be sent within 30 days of the 

 2

 Appellant’s form requesting a review of the written record was marked as received by OWCP on 

December 9, 2014. 

3

 5 U.S.C. § 8124(b)(1). 

4

 20 C.F.R. § 10.615. 
3

date of issuance of the decision (as determined by the postmark or other carrier’s date marking) 

of the date of the decision for which an oral hearing or review of the written record is sought.5

ANALYSIS -- ISSUE 2 

Considering first the second issue of the present case, the Board finds that OWCP 

improperly denied appellant’s request for a review of the written record under section 8124 of 

FECA. 

In this case, appellant’s form requesting a review of the written record from the 

October 29, 2014 decision was dated November 28, 2014 and was marked as received by OWCP 

on December 9, 2014. While the record contains a partial photocopy of the envelope in which 

the request was sent, the record does not contain a legible postmark. The Branch of Hearings 

and Review is required to retain an envelope in which a request for a hearing is made so as to 

determine the timeliness of the request for a hearing.6

 However, the case record submitted on 

appeal does not contain a legible copy of the envelope from which the timeliness of the hearing 

can be determined. 

Because appellant submitted a request for a review of the written record which was dated 

November 28, 2014 and the record contains no envelope with a legible postmark, the Board finds 

that his request is timely filed within 30 days of OWCP’s October 29, 2014 decision and he is 

entitled to a review of the written record as a matter of right.7 Consequently, the case must be 

remanded for OWCP to provide appellant a review of the written record under section 8124.8 

After carrying out this development, OWCP should issue a merit decision on appellant’s 

schedule award claim.9

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s request for a review of the 

written record under section 8124 of FECA. 

 5 Id. at § 10.616(a). A request for review of the written record is subject to the same requirement as an oral 

hearing request that the request be sent within 30 days of OWCP’s final decision. See Michael J. Welsh, 40 ECAB 

994 (1989). 

6

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 

2.1601.3 (October 2011). OWCP procedures further provide that the request is timely if it was mailed (as 

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

decision. If the postmark is not legible, the request will be deemed timely unless OWCP has kept evidence of date 

of delivery on the record reflecting that the request is untimely. Id. at Chapter 2.1601.4 

7

 Appellant’s November 28, 2014 request was made precisely 30 days after OWCP’s October 29, 2014 decision. 

8 See Solomon R. Lee, Docket No. 03-487 (issued June 24, 2003); Diane B. Werner, Docket No. 01-274 (issued 

September 10, 2001). See also L.W., Docket No.14-2055 (issued March 17, 2015). 

9

 Given the Board’s disposition of the nonmerit issue of this case, the Board will not consider the merit issue of 

the case. 
4

ORDER 

IT IS HEREBY ORDERED THAT the January 15, 2015 decision of the Office of 

Workers’ Compensation Programs is reversed. The case is remanded to OWCP for further 

proceedings consistent with this decision of the Board. 

Issued: June 3, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board