United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Schenectady, NY, Employer 

__________________________________________ 

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Docket No. 15-1062 

Issued: July 23, 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 April 14, 2015 appellant filed a timely appeal from an October 29, 2014 nonmerit 

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

elapsed from the last merit decision dated May 8, 2014 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 to review the merits of the claim. 

ISSUE 

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

before an OWCP hearing representative as untimely filed. 

FACTUAL HISTORY 

On March 19, 2014 appellant, then a 58-year-old clerk, filed a traumatic injury claim 

alleging that on March 17, 2014 he lost his balance, fell, and hit his head against the wall. 

 1

 5 U.S.C. § 8101 et seq.
2

In a March 17, 2014 hospital report, Amy Rowe, a physician assistant, noted seeing 

appellant in the emergency department where he was released to return to work on 

March 19, 2014. She diagnosed cervical strain, concussion/head injury (adult), fall prevention, 

head injury, headache, and postconcussive syndrome. 

In a letter dated April 7, 2014, OWCP informed appellant that the evidence of record was 

insufficient to establish his claim. Appellant was advised as to the medical and factual evidence 

required and given 30 days to provide this information. 

In response to OWCP’s letter, appellant submitted a statement further describing how the 

March 17, 2014 incident occurred. 

On April 29, 2014 OWCP received a March 17, 2014 report of Dr. Gary Kronick, a 

Board-certified internist.2

 The report related that the injury occurred while appellant was 

walking into work when he saw an identification badge on the ground. As he bent over to pick 

up the badge, appellant lost his balance and struck the wall with his head. Complaints included a 

bump on his forehead, stiff neck and abrasion along the bridge of his nose. A physical 

examination revealed multiple head and nose bruising. 

By decision dated May 8, 2014, OWCP denied appellant’s claim as it found he failed to 

establish fact of injury as there was no diagnosed condition. 

On September 23, 2014 OWCP received appellant’s September 16, 2014 request for an 

oral hearing, via telephone before an OWCP hearing representative. The request was 

postmarked September 16, 2014. 

By decision dated October 29, 2014, OWCP’s Branch of Hearings and Review denied 

appellant’ hearing request as untimely filed. OWCP considered appellant’s request and 

determined that his case could equally well be addressed by requesting reconsideration and 

submitting new evidence. 

LEGAL PRECEDENT 

Section 8124(b)(1) of FECA provides that a claimant is entitled to a hearing before an 

OWCP hearing representative when a request is made within 30 days after issuance of an OWCP 

final decision.3

 A claimant is not entitled to a hearing if the request is outside that time frame as 

determined by receipt of the request.4 OWCP has discretion, however, to grant or deny a request 

 2

 The American Board of Medical Specialties indicated that Dr. Kronick was not meeting maintenance of 

certification requirements. 

3

 5 U.S.C. § 8124(b)(1). See A.B., 58 ECAB 546 (2007); Gerard F. Workinger, 56 ECAB 259 (2005).

4

 20 C.F.R. § 10.616(b). 
3

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

hearing should be granted or, if not, will so advise the claimant with reasons.6

 

ANALYSIS 

A request for a hearing must, as noted above, be made within 30 days after the date of the 

issuance of OWCP’s final decision. Appellant requested a telephone hearing before OWCP’s 

Branch of Hearings and Review on a form dated and postmarked September 16, 2014 and 

received on September 23, 2014 by the Board of Hearings and Review. Because the request was 

received by OWCP more than 30 days following issuance of the May 8, 2014 decision, it was 

untimely filed. 

OWCP retains the discretion to grant an oral hearing even though a claimant is not 

entitled to an oral hearing as a matter of right. The Board finds that OWCP, in its October 29 

2014 decision, properly exercised its discretion. The decision stated that it had considered the 

matter in relation to the issue involved and had denied appellant’s request for an oral hearing 

because her claim could be addressed through a reconsideration application. The Board has held 

that as the only limitation on OWCP’s authority is reasonableness. 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 deduction from established facts.7

 In 

the present case, the evidence shows that OWCP did not abuse its discretion when it denied 

appellant’s request for an oral hearing. 

CONCLUSION 

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

was untimely filed. 

 5 Hubert Jones, Jr., 57 ECAB 467 (2006). 

6 Teresa M. Valle, 57 ECAB 542 (2006). 

7 Id.; Daniel J. Perea, 42 ECAB 214 (1990). 
4

ORDER 

IT IS HEREBY ORDERED THAT the October 29, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 23, 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