United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.G., Appellant 

and 

DEPARTMENT OF TREASURY, IRS 

NATIONAL OFFICE, Richmond, VA, Employer 

__________________________________________ 

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Docket No. 13-2030 

Issued: March 24, 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 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 26, 2013 appellant filed a timely appeal from a February 27, 2013 nonmerit 

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

oral hearing by the Branch of Hearings and Review.1

 Pursuant to the Federal Employees’ 

Compensation Act2

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

review the nonmerit decision by OWCP. The last merit decision of record was OWCP’s 

December 18, 2012 decision. Because more than 180 days has elapsed between the 

December 18, 2012 decision and the filing of this appeal on August 26, 2013, the Board lacks 

jurisdiction to review the merits of this case.3

 1

 Because using the date of delivery, September 3, 2013, as the date of filing would render the appeal untimely, 

the appeal is considered to have been filed as of the date of postmark, August 26, 2013. 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101, et seq.

3

 For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of 

OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R. 

§ 501.3(e). 
2

ISSUE 

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

oral hearing. 

FACTUAL HISTORY 

On August 3, 2011 appellant, then a 47-year-old management and program assistant, 

filed an occupational disease claim (Form CA-2) alleging that she sustained post-traumatic 

stress, anxiety and depression as a result of her federal employment duties. 

By decision dated March 2, 2012, OWCP denied appellant’s claim finding that her 

emotional condition did not occur in the performance of duty as alleged. 

On April 6, 2012 appellant requested an oral hearing before the Branch of Hearings and 

Review. 

By decision dated May 30, 2012, the Branch of Hearings and Review denied appellant’s 

request for an oral hearing on the grounds that it was untimely filed. 

By letter dated July 23, 2012, appellant requested reconsideration of the March 2, 2012 

decision. 

By decision dated December 18, 2012, OWCP affirmed its March 2, 2012 decision 

finding that the evidence of record failed to establish that appellant sustained an emotional 

condition in the performance of duty. 

On January 18, 2013 appellant requested an oral hearing before the Branch of Hearings 

and Review. 

By decision dated February 27, 2013, the Branch of Hearings and Review denied 

appellant’s request for an oral hearing on the grounds that she was not entitled to a hearing as a 

matter of right because she had previously requested reconsideration. It exercised its discretion 

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

reconsideration from OWCP and submitting evidence not previously considered which 

establishes that she sustained an injury causally related to her federal employment.4

 

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 

 4

 The Board notes that appellant submitted additional evidence after OWCP rendered its February 27, 2013 

decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final 

decision and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. §510.2(c)(1); Dennis E. 

Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). 
3

claim before a representative of the Secretary.5 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.6

 OWCP’s 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 

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

granted) on the same decision.7

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

administration of FECA,8

 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.9 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.10

ANALYSIS 

Appellant’s request for an oral hearing before the Branch of Hearings and Review dated 

January 18, 2013 was denied on the grounds that she had previously requested reconsideration 

pursuant to 5 U.S.C. § 8128(a).11 In its February 27, 2013 decision, OWCP noted that, while she 

was not entitled to an oral hearing as a matter of right, it had considered the matter in relation to 

the issue involved and, under its discretionary authority, denied the request as appellant could 

pursue her claim further by requesting reconsideration and submitting evidence in support of her 

claim. 

Appellant had previously requested reconsideration on July 23, 2012 and OWCP had 

issued its reconsideration decision on December 18, 2012. In the instant case, appellant’s 

request for an oral hearing, dated January 18, 2013, was made after OWCP issued its 

December 18, 2012 decision on her request for reconsideration made pursuant to 5 U.S.C. 

§ 8128. Hence, OWCP correctly found that appellant was not entitled to an oral hearing before 

an OWCP hearing representative as a matter of right under section 8124(b)(1) of FECA as she 

had previously requested reconsideration.12

 5

 5 U.S.C. § 8124(b)(1). 

6

 20 C.F.R. § 10.615. 

7 Id. at § 10.616(a). 

8

 5 U.S.C. §§ 8101-8193. 

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

10 Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and 

Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992). 

11 See Peggy R. Lee, 46 ECAB 527 (1995) (where the Board found that appellant’s request for an oral hearing was 

made after OWCP issued its decision on his request for reconsideration made pursuant to 5 U.S.C. § 8128 and 

therefore appellant was not entitled to an oral hearing before an OWCP hearing representative as a matter of right). 

12 Id. 
4

OWCP then exercised its discretion and determined that appellant’s hearing request could 

equally well be addressed by requesting reconsideration and submitting additional evidence to 

address the issue in this case. The Board finds that there is no evidence of record that OWCP 

abused its discretion in denying appellant’s hearing request.13 Thus, the Board finds that 

OWCP’s February 27, 2013 decision denying appellant’s request for an oral hearing was proper 

under the law and facts of this case.14

On appeal, appellant argues the merits of the claim. As previously noted, the Board does 

not have jurisdiction to review the merits of the claim. 

CONCLUSION 

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

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

 13 Daniel J. Perea, 42 ECAB 214, 221 (1990). 

14 Appellant must file her reconsideration request within one year of OWCP’s December 18, 2012 merit decision. 

OWCP regulations and procedure provide that OWCP will reopen a claimant’s case for merit review, 

notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s application for 

review shows clear evidence of error on the part of OWCP. Id. at § 10.607(b); Federal (FECA) Procedure Manual, 

Part 2 – Claims, Reconsiderations, Chapter 2.1602.3d (January 2004). 
5

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated February 27, 2013 is affirmed. 

Issued: March 24, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board