United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

U.S. POSTAL SERVICE, CAROL STREAM 

POST OFFICE, Carol Stream, IL, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1093 

Issued: August 4, 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 April 8, 2015 appellant filed a timely appeal from a January 7, 2015 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed between the last merit decision of OWCP dated September 26, 2014, to the filing of this 

appeal, the Board lacks jurisdiction to review the merits of this case pursuant to the Federal 

Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2

ISSUE 

The issue is whether OWCP properly denied appellant’s request for an oral hearing as 

untimely filed under 5 U.S.C. § 8124. 

On appeal, appellant contends that she did not receive OWCP’s September 26, 2014 

decision until October 2014. She states that when she requested an “appeal” of OWCP’s 

 1

 5 U.S.C. § 8101 et seq. 

2 See 20 C.F.R. § 501.3(e). 
2

decision, she submitted a photocopy of a postmarked envelope containing her request. Appellant 

explains that there was a delay in submitting the paperwork because it was an extremely busy 

season and she worked 9 to 10 hours in pain. She requests reconsideration of her case as she did 

not have any issues before working at the employing establishment. 

FACTUAL HISTORY 

On September 6, 2012 appellant, then a 34-year-old mail carrier, filed an occupational 

disease claim alleging that on August 23, 2012 she first became aware of her left wrist pain and 

carpal tunnel syndrome. She further alleged that on August 24, 2012 she first realized that her 

conditions were caused or aggravated by repetitive motion of her hands while performing her 

work duties six days a week. 

On October 10, 2012 OWCP accepted appellant’s claim for left carpal tunnel syndrome 

and authorized left carpal tunnel release performed on November 15, 2012. On October 24, 

2013 it expanded the acceptance of her claim to include tenosynovitis of the left wrist. 

On March 31, 2014 appellant filed a claim for a schedule award. In a May 28, 2014 

medical report, Dr. Kellen K. Choi, an attending Board-certified orthopedic surgeon, reviewed 

her history, noted her complaints of persistent intermittent and vague tingling in her thumb and 

index finger, occasional nocturnal symptoms, difficulty with repetitive gripping and lifting 

activities, and soreness. Activities of daily living and household chores had become more 

symptomatic. Dr. Choi provided examination findings and diagnosed left carpal tunnel 

syndrome and status post open carpal tunnel release with mild residual symptoms. He 

determined that appellant had five percent impairment due to her left carpal tunnel release 

according to Table 15-23, page 449 of the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). Dr. Choi concluded that 

she had reached maximum medical improvement in January 2013 when she was released to 

return to full-duty work.3

 

In a September 8, 2013 report, an OWCP medical adviser reviewed Dr. Choi’s May 28, 

2014 report and agreed with his finding that appellant had five percent impairment of the left 

upper extremity. He explained that Dr. Choi accurately interpreted and applied the A.M.A., 

Guides. The medical adviser determined that appellant had reached maximum medical 

improvement on January 3, 2014, the date she was released back to work with no restrictions and 

from ongoing acute orthopedic care. 

In a September 26, 2014 decision, OWCP granted appellant a schedule award for an 

additional one percent impairment of the left upper extremity based on Dr. Choi’s May 28, 2014 

report and the medical adviser’s September 8, 2013 report. The period of the award ran for 3.12 

weeks from January 3 to 24, 2014. OWCP noted that appellant was previously paid a schedule 

award for four percent impairment of the right upper extremity under her claim assigned File 

No. xxxxxx702. The decision was mailed to appellant’s address of record. 

 3

 The Board notes that appellant returned to work on January 4, 2013 upon release to full-time regular work with 

no restrictions by Dr. Choi. 
3

In an undated appeal request form postmarked December 8, 2014 and received by OWCP 

on December 11, 2014, appellant requested a telephone hearing with an OWCP hearing 

representative. 

In an October 2, 2013 report, Dr. Choi noted appellant’s complaints of continuing pain at 

the volar aspect of her right wrist with occasional numbness and tingling, and pain and weakness 

of her left hand. He reported that she had been able to work full duty despite these symptoms. 

Dr. Choi stated that no new symptoms were reported and that no improvement had been noted. 

He provided findings on examination and diagnosed right hand and wrist and left hand and wrist 

pain, ruling out compressive neuropathy. Dr. Choi concluded that appellant could continue to 

work while awaiting diagnostic test results. 

By decision dated January 7, 2015, OWCP’s Branch of Hearings and Review denied 

appellant’s request for an oral hearing as it was untimely filed. It found that the request was not 

postmarked within 30 days of the issuance of the September 26, 2014 OWCP merit decision. 

After exercising its discretion, OWCP further found that the issue in the case could equally well 

be addressed through the reconsideration process. 

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 or her claim before a representative of the 

Secretary.4

 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

 OWCP 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 

The Board finds that OWCP properly determined that appellant’s request for an oral 

hearing was untimely filed as it was made more than 30 days after the issuance of OWCP’s 

 4

 5 U.S.C. § 8124(b)(1). 

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). 
4

September 26, 2014 schedule award decision. The undated form, on which appellant requested 

the hearing, was postmarked on December 8, 2014. The time limitation to request an oral 

hearing from OWCP’s Branch of Hearings and Review expired on October 27, 2014, 30 days 

after OWCP’s September 26, 2014 decision.9

 OWCP, therefore, properly denied appellant’s 

hearing as a matter of right. 

Although appellant’s request for a hearing was untimely, OWCP has the discretionary 

authority to grant the request and it must exercise such discretion. In its January 7, 2015 

decision, it properly exercised its discretion by notifying appellant that it had considered the 

matter in relation to the issue involved and 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. 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.10 In this case, there is no 

evidence of record that OWCP abused its discretion by denying appellant’s hearing request. 

Accordingly, the Board finds that OWCP properly denied appellant’s request for an oral hearing. 

On appeal, appellant contended that she did not receive OWCP’s September 26, 2014 

decision until October 2014. She stated that, when she requested an “appeal” of OWCP’s 

decision, she submitted a photocopy of a postmarked envelope containing her request. Appellant 

explained that there was a delay in submitting the paperwork because it was an extremely busy 

season and she worked 9 to 10 hours in pain. The record reveals that the September 26, 2014 

decision was sent to her address of record. Absent evidence to the contrary, the presumption 

arises that the decision was received in the ordinary course of business.11 Appellant did not 

submit sufficient evidence to rebut the presumption of receipt.12

Appellant further contended on appeal that her case should be reconsidered because she 

did not have any issues before working at the employing establishment. The Board does not 

have jurisdiction to review the September 26, 2014 schedule award decision.13 The only 

decision properly before the Board on this is the January 7, 2015 nonmerit decision which denied 

appellant’s request for an oral hearing as untimely filed. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for an oral hearing as 

untimely filed pursuant to 5 U.S.C. § 8124(b)(1). 

 9

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

commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB 90 (1989). 

10 Samuel R. Johnson, 51 ECAB 612 (2000). 

11 Jeffrey M. Sagrecy, 55 ECAB 724 (2004). 

12 See Nelson R. Hubbard, 54 ECAB 156 (2002). 

13 Supra note 1. 
5

ORDER 

IT IS HEREBY ORDERED THAT the January 7, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 4, 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