United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.M., Appellant 

and 

DEPARTMENT OF THE ARMY, U.S. ARMY 

CORPS OF ENGINEERS, New Orleans, LA, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1404 

Issued: October 10, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 4, 2014 appellant filed a timely appeal from a May 21, 2014 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP) denying his request for a review of 

the written record. As more than 180 days elapsed from the issuance of the most recent merit 

decision of April 12, 2011 and 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. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for a review of the 

written record as untimely under 5 U.S.C. § 8124(b)(1). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. In a decision dated December 1, 2010, 

the Board reversed September 16, 2009 and February 1, 2010 OWCP decisions reducing 

appellant’s compensation benefits to zero based on a finding that his actual earnings as a 

modified machinist fairly and reasonably represented his wage-earning capacity.2

 The Board 

determined that he had not worked in the limited-duty position for more than 60 days prior to 

OWCP’s loss of wage-earning capacity determination. The Board found, consequently, that 

OWCP improperly reduced appellant’s compensation as it failed to follow its procedures. The 

facts and circumstances as set forth in the prior decision are hereby incorporated by reference. 

By decision dated April 12, 2011, OWCP again reduced appellant’s compensation to zero 

based on its finding that his actual earnings effective August 30, 2009 as a light-duty machinist 

fairly and reasonably represented his wage-earning capacity. 

In a letter dated April 16, 2011, appellant questioned the meaning of the April 12, 2011 

decision, noting that the Board had reversed the prior finding.3 

In a telephone call dated April 3, 2014, OWCP informed appellant that it had issued a 

decision on April 12, 2011 reducing his compensation. Appellant responded that he had not 

received an April 12, 2011 decision. OWCP advised him that the decision was not returned after 

being mailed. 

In a form received by OWCP on May 1, 2014, appellant requested a review of the written 

record on the April 12, 2011 decision.4

 

By decision dated May 21, 2014, OWCP denied appellant’s request for a review of the 

written record as it was not made within 30 days of the last decision. It exercised its discretion 

and considered his request but found that the issue could be adequately addressed through the 

reconsideration process. 

On appeal, appellant contends that appeal rights were not attached to OWCP’s decision.5

 

He notes that he told OWCP on April 16, 2011 that he did not understand its actions on 

April 12, 2011. Appellant asserts that the April 12, 2011 decision did not comply with the 

 2

 Docket No. 10-949 (issued December 1, 2010). OWCP accepted that on July 16, 2001 appellant, then a 

51-year-old machinist, sustained lumbar strain, an aggravation of lumbar degenerative disc disease, other acquired 

deformities of the left ankle and foot and unequal leg length in the performance of duty. Appellant underwent back 

surgeries on September 24, 2001 and May 9, 2008. On August 24, 2009 he accepted a position as a light-duty 

machinist with no lifting over 20 pounds. 

3

 On December 7, 2012 appellant filed recurrence of disability on July 3, 2006 due to his July 16, 2001 work 

injury. He did not claim medical treatment or lost wages. By letter dated April 18, 2013, OWCP advised appellant 

that as he was not claiming disability compensation or medical expenses, it would not adjudicate the notice of 

recurrence of disability. 

4

 Appellant also indicated that he wanted to appeal to the Board. 

5

 Appellant’s April 9, 2014 letter addressed to the Board was also provided to OWCP on May 1, 2014. 
3

Board’s December 1, 2010 decision. He argues the merits of his claim and indicates that he 

wants to appeal the April 12, 2011 decision. 

LEGAL PRECEDENT 

Section 8124(b) 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 claim before a representative of the Secretary.6

 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.7

 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.8

 A claimant is entitled to a hearing or review of the 

written record as a matter of right if the request is filed within 30 days.9

While a claimant may not be entitled to a hearing or review of the written record 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.10

ANALYSIS 

By decision dated April 12, 2011, OWCP reduced appellant’s compensation effective 

August 30, 2009 based on its finding that his actual earnings as a light-duty machinist beginning 

that date fairly and reasonably represented his wage-earning capacity. After contacting OWCP 

on April 3, 2014 to determine the status of his case, appellant sought a review of the written 

record on a form received by OWCP on May 1, 2014. As his request for a review of the written 

record was received May 1, 2014, more than 30 days after OWCP issued its April 12, 2011 

decision, he was not entitled to a review of the written record as a matter of right. 

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

when a claimant is not entitled to a hearing or review as a matter of right.11 In its May 21, 2014 

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

the issue involve and denied appellant’s request for a review of the written record on the basis 

that the case could be resolved by submitting additional evidence to OWCP 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 

 6

 5 U.S.C. § 8124(b)(1). 

7

 20 C.F.R. § 10.615. 

8 Id. at § 10.616(a). 

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

10 20 C.F.R. § 10.616(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the 

Written Record, Chapter 2.1601.4(a) (October 2011). 

11 See Afegalai L. Boone, 53 ECAB 533 (2002). 
4

and probable deduction from established facts.12 The evidence does not establish that OWCP 

committed any action in connection with its denial of appellant’s request for a review of the 

written record which could be found to be an abuse of discretion. Accordingly, OWCP properly 

denied his request for a review of the written record as untimely under section 8124 of FECA. 

On appeal, appellant maintains that he did not receive appeal rights with the 

April 12, 2011 decision. He asserts that he informed OWCP on April 16, 2011 that he did not 

understand the April 12, 2011 correspondence. The record, however, indicates that the 

April 12, 2011 decision was properly addressed to appellant and was accompanied by appeal 

rights. There is no evidence that it was returned to OWCP as undeliverable. Absent evidence to 

the contrary, a letter properly addressed and mailed in the ordinary course of business is 

presumed to have been received. This is known as the mailbox rule.13 The April 12, 2011 

decision was sent to appellant’s address of record with appeal rights and is presumed to have 

been received absent any notice of nondelivery. 

Appellant further raises arguments relevant to the merits of his case. The only issue 

before the Board, however, is whether OWCP properly denied his request for a review of the 

written record as untimely. The Board lacks jurisdiction to review the underlying merits of the 

case.14

CONCLUSION 

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

written record as untimely under section 8124(b)(1). 

 12 See L.W., 59 ECAB 471 (2008); André Thyratron, 54 ECAB 257 (2002). 

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

14 See 20 C.F.R. § 501.3(e). 
5

ORDER 

IT IS HEREBY ORDERED THAT the May 21, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 10, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board