United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.B., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Bronx, NY, Employer 

__________________________________________ 

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Docket No. 15-0463 

Issued: July 14, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 23, 2014 appellant timely filed an appeal of an October 3, 2014 nonmerit 

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

elapsed since the most recent OWCP merit decision of April 15, 2013, and the filing of this 

appeal on December 23, 2014, pursuant to the Federal Employees’ Compensation Act1

 (FECA) 

and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the 

claim.2

ISSUE 

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

untimely under 5 U.S.C. § 8124. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant filed a timely request for an oral argument pursuant to 20 C.F.R. § 501.5(b). After exercising its 

discretion, the Board denied the request as the arguments could adequately be addressed in a decision based on a 

review of the record. Order Denying Request for Oral Argument, Docket No. 15-463 (issued May 5, 2015). 
2

On appeal, appellant contends that her attorney at the time never informed her that a 

request had been submitted for a schedule award nor that a decision had been made. She also 

contended that she had not been sent a copy of the schedule award decision in a timely manner. 

Appellant argued that she did not have the opportunity to present her case properly. 

FACTUAL HISTORY 

On November 7, 2003 appellant, then a 48-year-old nursing assistant, filed a traumatic 

injury claim alleging that on November 3, 2003, she suffered a sprain to her left arm while 

assisting a patient out of bed. On January 14, 2004 OWCP accepted appellant’s claim for left 

shoulder sprain. It later accepted appellant’s claim for sprain of the left upper arm, other bursitis, 

left, and trigger finger (acquired), left. 

On September 14, 2012 appellant signed a Form CA-7 claiming a schedule award. By 

letter dated March 13, 2013, OWCP acknowledged to appellant that her claim for schedule 

award had been received. By decision dated April 15, 2013, it denied her request for a schedule 

award. The decision was addressed to appellant at her address of record in Bronx, New York 

and a copy was sent to her counsel at that time. 

By letter dated April 23, 2013, appellant’s counsel advised OWCP that he no longer 

represented appellant. By letter dated June 23, 2014, appellant told OWCP that she had not been 

informed about her decision until June 23, 2014 and had not been aware that her request for a 

schedule award had been denied until that date. 

By letter dated July 23, 2014, received by OWCP on August 5, 2014, appellant requested 

that her “[s]chedule [a]ward hearing be reopened.” She noted that on July 23, 2014, when she 

checked on the status of her claim with the claims examiner, she was informed that it had been 

denied on April 15, 2013. Appellant stated that she was unaware that the hearing had taken 

place and did not receive documentation stating the denial and the reason for the denial. She 

noted that she was no longer represented by her prior attorney, and was unaware that a schedule 

award request had been filed on her behalf. 

By decision dated October 3, 2014, OWCP denied appellant’s request for an oral hearing 

as it was untimely filed. It further reviewed her request at its discretion, and determined that the 

issue could equally well be addressed by requesting reconsideration. 

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 

claim before a representative of the Secretary.3 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.4

 OWCP’s regulations provide that the request must be 

 3

 5 U.S.C. § 8124(b)(1). 

4

 20 C.F.R. § 10.615. 
3

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.5 A claimant is entitled to a hearing as a matter of right if the 

request is filed within 30 days.6

The Board has held that OWCP, in discretionary authority7

 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.8 

ANALYSIS 

In a decision dated April 15, 2013, OWCP denied appellant’s claim for a schedule award. 

Appellant’s request for an oral hearing of this decision was received by OWCP on 

August 5, 2014. In a decision dated October 3, 2014, OWCP denied her hearing request as 

untimely. As appellant’s request for hearing was dated July 23, 2014, more than 30 days after 

OWCP issued its April 15, 2013 merit decision, her request was untimely and she was not 

entitled to a hearing as a matter of right. 

OWCP retains discretionary power to grant a hearing or review of the written record even 

when a claimant is not entitled to a hearing or review as a matter of right.9

 In its October 3, 2014 

decision, it exercised that discretion by stating that it had considered the matter in relation to the 

issue involved and denied appellant’s request for an oral hearing. OWCP determined that the 

case could be resolved by submitting additional evidence to it with a reconsideration request. 

The Board has held that the only limitation on OWCP’s discretionary authority is 

reasonableness. An abuse of discretion is generally shown through proof of manifest error, 

clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and 

probable deductions from the established facts.10 The evidence does not establish that OWCP 

committed any action in connection with its denial of appellant’s request for an oral hearing 

which could be found to be an abuse of discretion. Accordingly, the Board finds that OWCP 

properly denied her request for an oral hearing as untimely under section 8124.11 

The Board finds that appellant’s arguments raised on appeal are without merit. Appellant 

signed the claim for a schedule award and also contacted OWCP to follow up on her claim. The 

Board also notes that the decision was addressed and mailed to appellant’s address of record. 

Absent evidence to the contrary, a document properly addressed and mailed in the ordinary 

 5 Id. at § 10.616(a). 

6 See Leona B. Jacobs, 55 ECAB 753 (2004). 

7

 5 U.S.C. §§ 8101-8193. 

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

9 Afegalai L Boone, 53 ECAB 533 (2002). 

10 P.S., Docket No. 13-2027 (issued July 2, 2014); see also André Thyratron, 54 ECAB 257 (2002).

11 Supra note 3. 
4

course of business is presumed to have been received under the mailbox rule.12 OWCP’s 

April 15, 2013 decision was mailed to appellant’s address of record and is presumed to have 

been received by her absent any notice of nondelivery.13 Furthermore, the Board notes that an 

additional copy of the decision was sent to appellant’s former attorney.14

CONCLUSION 

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

untimely under 5 U.S.C. § 8124. 

ORDER 

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

Compensation Programs dated October 3, 2014 is affirmed. 

Issued: July 14, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 12 See James A. Gray, 54 ECAB 277 (2002). 

13 A.M., Docket No. 14-1546 (issued December 16, 2014). 

14 See 20 C.F.R. § 10.127, which provides in pertinent part: “A copy of the decision shall be mailed to the 

employee’s last known address. If the employee has a designated representative before OWCP, a copy of the 

decision will also be mailed to the representative....”