United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Columbia, SC, Employer 

__________________________________________ 

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Docket No. 14-474 

Issued: May 23, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 27, 2013 appellant filed a timely appeal from a July 25, 2013 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for an 

oral hearing as untimely. As more than 180 days elapsed from issuance of the most recent merit 

decision of April 30, 2013, to 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, the Board only has jurisdiction over the nonmerit issue.2 

ISSUE 

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

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

                                                             1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the issuance of the July 25, 2013 OWCP decision, appellant submitted new 

evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its 

final decision. See 20 C.F.R. § 501.2(c)(1). 
2

On appeal, appellant argued the merits of her case. 

FACTUAL HISTORY 

On December 21, 2011 OWCP accepted that appellant, then a 54-year-old postmaster, 

sustained respiratory conditions due to unspecified external agents and myalgia and myositis.3 

By decision dated March 8, 2013, OWCP reopened appellant’s claim on the basis that it 

had received new medical evidence. It proposed to rescind the accepted conditions. 

By decision dated April 30, 2013, OWCP rescinded the accepted conditions and 

terminated appellant’s compensation benefits effective that day. 

In an appeal request form postmarked June 8, 2013, appellant requested an oral hearing 

before an OWCP hearing representative. 

By decision dated July 25, 2013, the Branch of Hearings and Review denied appellant’s 

request for an oral hearing finding that it was untimely filed. It was not made within 30 days of 

the April 30, 2013 decision. The Branch of Hearings and Review exercised its discretion and 

further denied the request for the reason that 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.”4 

Section 10.615 of Title 20 of the Code of Federal Regulations provide, “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.”5 The hearing 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.6

 OWCP has discretion, however, to grant or 

deny a request that is made after this 30-day period.7

 In such a case, it will determine whether to 

grant a discretionary hearing and, if not, will so advise the claimant with reasons.8

 

                                                             3

 On June 27, 2011 appellant filed an occupational disease claim (Form CA-2) for respiratory conditions allegedly 

sustained in the performance of duty. 

4

 5 U.S.C. § 8124(b)(1). 

5

 20 C.F.R. § 10.615. 

6 Id. at § 10.616. 

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

8 Id. See also Rudolph Bermann, 26 ECAB 354 (1975). 
3

ANALYSIS 

Appellant had 30 days from OWCP’s April 30, 2013 decision, or until May 30, 2013, to 

request an oral hearing. She filed a request for an oral hearing postmarked June 8, 2013, which 

was more than 30 days after OWCP issued the April 30, 2013 decision.9 Section 8124(b)(1) is 

unequivocal on the time limitation for requesting a hearing.10 For this reason, the Board finds 

that the request was untimely. Because the request was not timely filed, appellant was not 

entitled to an oral hearing as a matter of right. 

Appellant was not entitled to an oral hearing as a matter of right under section 

8124(b)(1) of FECA. Exercising its discretion to grant an oral hearing, OWCP denied 

appellant’s request on the grounds that she could equally well address any issues in her case by 

requesting reconsideration. Because reconsideration exists as an alternative appeal right to 

address the issues raised by OWCP’s April 30, 2013 decision, the Board finds that OWCP did 

not abuse its discretion in denying appellant’s untimely request for an oral hearing.11

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

the July 25, 2013 nonmerit decision which denied her request for an oral hearing. The Board is 

precluded under its regulations from conducting a merit review. 

CONCLUSION 

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

untimely. 

                                                             9

 Under OWCP regulations and procedures, the timeliness of a request for a hearing is determined on the basis of 

the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings 

and Reviews of the Written Record, Chapter 2.1601.4(a) (October 2011). If the postmark is not legible, the request 

will be deemed timely unless OWCP has kept evidence of date of delivery on the record reflecting that the request is 

untimely. Id. 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the July 25, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 23, 2014 

Washington, DC 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board