United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.B., Appellant 

and 

DEPARTMENT OF THE NAVY, 

Camp Lejeune, NC, Employer 

__________________________________________ 

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Docket No. 14-1363 

Issued: October 2, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 22, 2014 appellant filed a timely appeal from a November 27, 2013 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 As more than 180 days 

elapsed from the date of the last merit decision dated May 20, 2013 to the filing of the appeal, 

pursuant to the Federal Employees’ Compensation Act2

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

501.3, the Board does not have jurisdiction over the merits of this case. 

ISSUE 

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

untimely under 5 U.S.C. § 8124. 

 1

 This appeal was received by the Board on May 29, 2014. As the date of receipt would render the appeal 

untimely filed, pursuant to the Board’s Rules of Procedure the appeal will be considered to have been filed as of the 

date of the postmark. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

Appellant, a 53-year-old contract surveillance representative, filed a Form CA-2 claim 

for benefits on February 27, 2013, alleging that he developed an emotional condition causally 

related to employment factors. 

In a February 28, 2013 report, Dr. Shayna Walker, a specialist in family medicine and a 

treating psychiatrist, stated that appellant had anxiety symptoms which were exacerbated and 

worsened by work-related stressors. She diagnosed major depression disorder and panic disorder 

without agoraphobia. Dr. Walker submitted reports excusing appellant from work on January 25 

and February 8, 2013. 

In a letter received by OWCP on March 11, 2013, the employing establishment 

challenged appellant’s claim. 

By letter dated March 13, 2013, OWCP asked appellant to submit a comprehensive 

medical report from his treating physician describing his symptoms and the medical reasons for 

his condition. It requested an opinion as to whether his claimed condition was causally related to 

his federal employment. OWCP requested that appellant submit the additional evidence within 

30 days. 

In a March 27, 2013 report, Dr. Walker stated that she initially examined appellant on 

January 18, 2013, at which time she performed a psychiatric evaluation. She related that he 

experienced work-related anxiety a few days prior to his first evaluation in mid-January because 

of harassment at work. Appellant had stressors from work-exacerbated chronic panic symptoms 

and depressive symptoms. Dr. Walker advised that he displayed symptoms of panic attacks, 

insomnia, depressed mood, poor interest in things, poor concentration, excessive worries and 

racing thoughts during his initial evaluation. She opined that appellant’s mental health concerns 

were causally related to work stressors and interpersonal difficulties. 

By decision dated May 20, 2013, OWCP denied appellant’s claim. It found that he failed 

to submit sufficient factual evidence to establish a compensable factor of employment. 

On June 20, 2013 appellant requested an oral hearing. 

In a decision dated November 27, 2013, OWCP denied the request as untimely filed 

pursuant to 5 U.S.C. § 8124. It informed appellant that his case had been considered in relation 

to the issues involved and that the request was further denied for the reason that the issue in this 

case could be addressed by requesting reconsideration from the district office and submitting 

evidence not previously considered. 

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 
3

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

 The request must be sent 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.5

 A hearing is a review of 

an adverse decision by an OWCP hearing representative. Initially, the claimant can choose 

between two formats: an oral hearing or a review of the written record. In addition to the 

evidence of record, the claimant may submit new evidence to the hearing representative.6

 A 

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

within 30 days of the date of the decision for which the hearing is sought.7

 A claimant is not 

entitled to a hearing as a matter of right if the request is not made within 30 days from the date of 

the decision.8

 OWCP has discretion, however, to grant or deny a request that is made after this 

30-day period.9

 In such a case, it will determine whether a discretionary hearing should be 

granted and, if not, will so advise the claimant with reasons.10

While a claimant may not be entitled to a hearing as a matter of right if the request is 

untimely, OWCP has the discretionary authority to grant the request and must properly exercise 

such discretion.11

ANALYSIS 

On June 20, 2013 appellant requested an oral hearing. Because he did not request the 

hearing within 30 days of the May 20, 2013 decision, he was not entitled to a hearing as a matter 

of right under section 8124(b)(1). OWCP considered whether to grant a discretionary review 

and properly advised appellant that his case had been considered and denied for the reason that 

the issue in the case could be addressed by requesting reconsideration from the district office and 

submitting evidence not previously considered. 

When OWCP neglected to issue a decision on appellant’s request for oral hearing or 

review of the written record in a timely fashion, it effectively exhausted his opportunity to obtain 

a merit review of the May 20, 2013 decision before the Board.12 Appellant’s May 20, 2013 

 3

 5 U.S.C. § 8124(b)(1). 

4

 20 C.F.R. § 10.615. 

5 Id. at § 10.616(a). 

6 Supra note 4. 

7 Supra note 5.

8 James Smith, 53 ECAB 188 (2001). 

9

 20 C.F.R. § 10.616(b). 

10 Supra note 8. 

11 See id.; Cora L. Falcon, 43 ECAB 915 (1992); Mary B. Moss; 40 ECAB 640 (1989); Rudolph Bermann, 26 

ECAB 354 (1975). 

12 See D.M., Docket No. 08-1814 (issued July 16, 2009). 
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request for review of the written record went unanswered for more than six months. By the time 

OWCP issued its November 27, 2013 decision denying the request for an oral hearing, he did not 

have the time to appeal the merits of OWCP’s May 20, 2013 decision denying his emotional 

condition claim to the Board. The Board finds that OWCP abused its discretion by waiting over 

six months to issue its decision denying appellant’s request for hearing. As such, the case will be 

remanded to OWCP to issue a de novo decision on the claim to protect appellant’s appeal 

rights.13 

CONCLUSION 

The Board finds that OWCP abused its discretion by delaying its decision on appellant’s 

request for a hearing. 

ORDER 

IT IS HEREBY ORDERED THAT the November 27, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action 

consistent with this decision. 

Issued: October 2, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 13 Marilyn F. Wilson, 51 ECAB 234, 235 (1999); Brian R. Leonard, 43 ECAB 255, 259-60 (1991) (the Board 

held that OWCP’s delay in processing the employee’s request for a hearing effectively precluded the opportunity to 

obtain merit review of the claim and constituted an abuse of discretion).