United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Roseland, IL, Employer 

__________________________________________ 

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Docket No. 15-1679 

Issued: December 14, 2015 

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 H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On August 4, 2015 appellant filed a timely appeal from a June 10, 2015 nonmerit 

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

elapsed from the date of the last merit decision of OWCP dated December 15, 2006, to the filing 

of this appeal, pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the claim. 

ISSUE 

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

oral hearing. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. The law and facts of the case as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are set 

forth below. 

 On February 11, 2005 appellant, then a 47-year-old mail processing clerk, filed an 

occupational disease claim (Form CA-2), asserting that workplace exposures to diesel exhaust, 

cleaning chemicals, and silica dust caused acute bronchitis, carbon monoxide poisoning, 

silicosis, and an unspecified chronic upper respiratory condition. The employing establishment 

confirmed the presence of silica dust and cleaning chemicals. Appellant provided medical 

evidence attributing her complaints to a respiratory virus and deconditioning. OWCP denied the 

claim by decision dated May 22, 2006 as causal relationship had not been established. Appellant 

then appealed to the Board. By decision and order issued December 15, 2006,2 the Board 

affirmed OWCP’s May 22, 2006 decision, finding that the medical evidence was insufficient to 

establish causal relationship. 

In a December 15, 2008 letter received by OWCP on December 19, 2008, appellant 

requested reconsideration. She contended that OWCP should have developed her claim as a 

traumatic injury not an occupational disease. Appellant enclosed copies of medical evidence 

previously considered by OWCP prior to the May 22, 2006 merit decision. OWCP denied 

appellant’s request for reconsideration by nonmerit decision dated April 3, 2009, finding that the 

request was untimely filed and failed to present clear evidence of error. Appellant filed an 

appeal with the Board. By decision issued June 17, 2010,3

 the Board affirmed OWCP’s April 3, 

2009 decision. 

 

In a June 9, 2011 letter, appellant again requested reconsideration. She contended that 

her February 11, 2005 claim was for both an occupational disease and a traumatic injury. 

Appellant argued that she was entitled to have received continuation of pay in either case. She 

provided a certificate of mailing showing that she mailed a reconsideration request to an 

incorrect address, and an unsigned emergency room triage sheet. OWCP denied reconsideration 

by nonmerit decision dated September 21, 2011, finding that appellant’s request did not raise 

substantive legal questions or contain new, relevant evidence. Appellant then filed an appeal 

with the Board. By decision issued November 28, 2012,4

 the Board affirmed the September 21, 

2011 decision denying reconsideration. 

On November 21, 2013 appellant again requested reconsideration. She asserted that the 

evidence established that exposure to diesel fumes, silica dust, or chemicals on January 3, 20, or 

28, 2005 caused a traumatic injury. Appellant contended that her December 15, 2008 

reconsideration request was timely filed, and she asserted that OWCP should have referred her to 

a second opinion specialist. She also alleged a pattern of malfeasance and lying by the 

 2

 Docket No. 06-1980 (issued December 15, 2006). 

3

 Docket No. 09-2374 (issued June 17, 2010). 

4

 Docket No. 12-0948 (issued November 28, 2012). 
3

employing establishment officials and OWCP in the development of her claim. Appellant 

submitted copies of claim forms, medical evidence, and her statements previously of record. She 

also provided August and September 2013 correspondence to and from the employing 

establishment explaining the procedural history of her claim. 

By nonmerit decision dated February 20, 2014, OWCP denied appellant’s November 21, 

2013 request for reconsideration, finding that the evidence submitted did not raise substantive 

legal questions or include new, relevant evidence. 

 Appellant again requested reconsideration on February 14, 2015. She asserted that new 

medical evidence was sufficient to establish her claim. Appellant provided a January 29, 2015 

letter from Dr. Christian Altman, an anesthesiologist who treated her on January 20, 2005. 

Dr. Altman noted that he did not remember appellant and recommended that she contact the 

physician who performed a follow-up examination. Appellant also provided January 26, 2015 

pulmonary function test results without interpretation, and a computerized tomography (CT) scan 

of the chest, showing minimal interstitial scarring and three micronodules. 

In a March 9, 2015 letter, OWCP advised appellant that she could not request 

reconsideration of the February 20, 2014 nonmerit decision, as her only right of appeal was to 

the Board. 

On April 8, 2015 appellant requested an oral hearing with the Branch of Hearings and 

Review. She reiterated her allegations of fraud by OWCP and the employing establishment. 

 By decision dated June 10, 2015, OWCP denied appellant’s request for a hearing 

regarding the February 20, 2014 decision. It found that, under section 8124(b) of FECA,5

 she 

was not entitled to a hearing as a matter of right as she previously requested reconsideration. 

OWCP exercised its discretion and performed a limited review of the evidence following 

reconsideration, and further denied the claim as the issue in the case would be addressed equally 

well by submitting new, relevant evidence or argument accompanying a valid request for 

reconsideration. 

LEGAL PRECEDENT 

Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before a 

hearing representative, states: Before review under section 8128(a) of this title, 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.6

 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. In addition to the evidence of record, 

the claimant may submit new evidence to the hearing representative.7

 The Branch of Hearings 

 5

 On its face the June 10, 2015 decision cites to section 8125(b)(1). The Board notes that this is a harmless, 

typographical error. 

6

 5 U.S.C. § 8124(b)(1). 

7

 20 C.F.R. § 10.615. 
4

and Review, in its broad discretionary authority in the administration of FECA, has the power to 

hold hearings in certain circumstances where no legal provision was made for such hearings and 

must exercise this discretionary authority in deciding whether to grant a hearing.8

 The Board has 

held that it must exercise its discretion to grant or deny a hearing when the request is untimely or 

made after reconsideration under section 8128(a).9 

ANALYSIS 

On April 8, 2015 appellant requested an oral hearing with the Branch of Hearings and 

Review. Because she had previously requested reconsideration under section 8128 of FECA, she 

was not entitled to a hearing as a matter of right under section 8124(b)(1). OWCP exercised its 

discretion and determined that the issue in the case could be resolved equally well through a 

request for reconsideration and the submission of additional evidence. The Board therefore finds 

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

June 10, 2015 decision. 

On appeal appellant contends that she sustained a traumatic injury on January 20, 2005. 

She alleges that OWCP and the employing establishment conspired to deny her claim. These 

arguments pertain to the merits of the claim, which are not before the Board on the present 

appeal. 

CONCLUSION 

The Board finds that OWCP did not abuse its discretion in denying appellant’s request 

for an oral hearing. 

 8 D.M., Docket No. 08-1814 (issued January 16, 2009). 

9 See R.T., Docket No. 08-0408 (issued December 16, 2008). 
5

ORDER 

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

Compensation Programs dated June 10, 2015 is affirmed. 

Issued: December 14, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board