United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.V., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PATROL, 

McAllen, TX, Employer 

__________________________________________ 

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Docket No. 14-1465 

Issued: November 21, 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 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On June 16, 2014 appellant filed a timely appeal from a May 22, 2014 decision of the 

Office of Workers’ Compensation Programs (OWCP) denying his request for an oral hearing. 

Pursuant to the Federal Employees’ Compensation Act1

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

501.3, the Board has jurisdiction over this decision. Because more than 180 days elapsed from 

July 2, 2010, the date of the most recent OWCP merit decision, to the filing of this appeal, the 

Board lacks jurisdiction to review the merits of the case. 

ISSUE 

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

untimely. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 13, 2010 appellant, then a 41-year-old senior patrol agent, filed a traumatic 

injury claim alleging that on May 2, 2010 he injured his right shoulder, left wrist and both hands 

when he struggled and was assaulted as he attempted to apprehend an undocumented suspect. 

He did not stop work. 

A May 2, 2010 incident report noted that appellant attempted to apprehend an 

undocumented suspect at night by the Rio Grande River. The report further noted that he 

sustained injuries to his right shoulder, both wrists and both hands. A separate May 2, 2010 

incident report noted that appellant was involved in a struggle as he attempted to apprehend a 

suspect. It further advised that he deployed his oleoresin capsicum spray (OC) to restrain the 

suspect. 

In a May 2, 2010 report, Dr. Edurado Borjon, a family medicine practitioner, diagnosed 

wrist and shoulder pain. He advised that appellant was able to return to work on May 7, 2010. 

By letter dated June 2, 2010, OWCP notified appellant that the present evidence of record 

was insufficient to establish his claim. Appellant was advised to submit medical evidence from 

his attending physician with a firm diagnosis and an opinion on causal relationship supported by 

medical rationale. He did not respond. 

By decision dated July 2, 2010, OWCP denied appellant’s claim for failure to establish 

the medical component of fact of injury. 

On May 7, 2014 appellant requested an oral hearing. He submitted June 17 and 

October 20, 2011 right shoulder operative reports from Dr. Bill Snyder, an orthopedic surgeon. 

By decision dated May 22, 2014, OWCP denied appellant’s request for an oral hearing as 

untimely. It exercised its discretion and further denied the request because the relevant issue of 

the case could be addressed by requesting reconsideration and submitting evidence not 

previously considered by OWCP. 

LEGAL PRECEDENT 

Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title 

[relating to reconsideration], a claimant for compensation not satisfied with a decision of the 

Secretary under subsection (a) of this section 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.”2 

Section 10.615 of Title 20 of the Code of Federal Regulations provide that a hearing is a 

review of an adverse decision by a hearing representative. Initially, the claimant can choose 

between two formats: An oral hearing or a review of the written record.3

 The hearing request 

 2 Id. at § 8124(b)(1). 

3

 20 C.F.R. § 10.615. 
3

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.4 OWCP has discretion, however, to grant or 

deny a request that is made after this 30-day period.5 In such a case, it will determine whether to 

grant a discretionary hearing and, if not, will so advise the claimant with reasons.6

 

ANALYSIS 

The Board finds that OWCP properly determined that appellant’s May 7, 2014 request 

for a hearing was not timely filed. Appellant’s request was made more than 30 days after the 

issuance of the July 2, 2010 decision. Section 8124(b)(1) is unequivocal on the time limitation 

for requesting a hearing.7 For this reason, OWCP properly denied his hearing as a matter of 

right. 

OWCP proceeded to exercise its discretion in accordance with Board precedent to 

determine whether to grant a hearing in this case. It denied appellant’s request on the grounds 

that he could equally well address any issues in his case by submitting evidence not previously 

considered by OWCP and requesting reconsideration. Because reconsideration exists as an 

alternative appeal right to address the issues raised by OWCP’s July 2, 2010 decision, the Board 

finds that OWCP did not abuse its discretion in denying appellant’s untimely request for an oral 

hearing.8

On appeal, appellant argued the merits of his case. The Board only has jurisdiction over 

the May 22, 2014 nonmerit decision which denied his request for an oral hearing. As noted, the 

Board does not have jurisdiction over the merits of the claim. 

CONCLUSION 

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

untimely. 

 4 Id. at § 10.616. 

5 See G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981). 

6 Id. See also Rudolph Bermann, 26 ECAB 354 (1975). 

7 See William F. Osborne, 46 ECAB 198 (1994). 

8 See Gerard F. Workinger, 56 ECAB 259 (2005). 
4

ORDER 

IT IS HEREBY ORDERED THAT the May 22, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 21, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board