United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.H., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, AIR 

FORCE MATERIEL COMMAND, TINKER 

AIR FORCE BASE, OK, Employer 

__________________________________________ 

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Docket No. 14-1417 

Issued: April 27, 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 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 10, 2014 appellant filed a timely appeal from a May 22, 2014 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP).1

 As more than 180 days has 

elapsed from the issuance of the most recent merit decision of July 2, 2012, to the filing of this 

appeal, and pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.3

                                                             1

 The Board notes that, following the issuance of the May 22, 2014 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

 5 U.S.C. § 8101 et seq. 

3

 Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). By order dated March 26, 2015, the Board denied the request on the grounds that appellant’s arguments 

on appeal could be adequately addressed in a decision based on a review of the case as submitted on the record. 

Order Denying Request for Oral Argument, Docket No. 14-1417 (issued March 26, 2015). 
2

ISSUE 

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

written record as untimely. 

On appeal, appellant argued the merits of her case. 

FACTUAL HISTORY 

On May 16, 2012 appellant, then a 50-year-old supervisory production controller 

(aircraft), filed a traumatic injury claim (Form CA-1) alleging injuries to her shoulders, neck, 

back, and arms on May 3, 2012 as a result of being assaulted by an employee. 

By decision dated July 2, 2012, OWCP denied the claim finding that the medical 

evidence submitted was not sufficient to establish a causal relationship between appellant’s 

conditions and the May 3, 2012 employment incident. 

In an appeal request form dated September 23, 2012, appellant requested a review of the 

written record by an OWCP hearing representative. She simultaneously filed a request for 

reconsideration and submitted additional medical evidence in support of her claim. 

By decision dated May 22, 2014, OWCP denied appellant’s request for a review of the 

written record finding that her request was untimely because it was not filed within 30 days of its 

July 2, 2012 decision. It further indicated that it had exercised its discretion but denied the 

request as the issues 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 

                                                             4

 5 U.S.C. § 8124(b)(1). 

5

 20 C.F.R. § 10.615. 

6 Id. at § 10.616. 
3

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

 

ANALYSIS 

Appellant had 30-calendar days from OWCP’s July 2, 2012 decision, or until August 1, 

2012, to request a review of the written record. She filed a request for a review of the written 

record by an OWCP hearing representative dated September 23, 2012, which was more than 30 

days after OWCP issued its July 2, 2012 decision.9

 Section 8124(b)(1) is unequivocal on the 

time limitation for requesting a hearing.10 Because the application was not timely filed, appellant 

was not entitled to a review of the written record. 

The Board notes that appellant also filed a request for reconsideration on 

September 23, 2012. The Board has found that when a request for a hearing under section 

8124(b)(1) and a request for reconsideration under section 8128 of FECA are simultaneously 

filed, OWCP must properly consider a claimant’s request for a hearing first to avoid creating a 

conflict with the requirements of section 8124(b)(1) that a hearing may be granted only before 

review under 5 U.S.C. § 8128(a).11 Therefore, the Board finds that the hearing request took 

precedence over the reconsideration request. 

Appellant was not entitled to a review of the written record as a matter of right under 

section 8124(b)(1) of FECA. Exercising its discretion to grant a review of the written record, 

OWCP denied appellant’s request as 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 July 2, 2012 decision, the Board finds that OWCP did not 

abuse its discretion in denying appellant’s untimely request for a review of the written record. 

On appeal, appellant argues the merits of her case. The Board noted above that it only 

has jurisdiction over OWCP’s May 22, 2014 nonmerit decision which denied her request for a 

review of the written record and therefore is precluded from conducting a merit review. 

CONCLUSION 

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

written record as untimely. 

                                                             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). 

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 Mary G. Allen, 40 ECAB 190 (1988). 
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ORDER 

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

Workers’ Compensation Programs is affirmed. 

Issued: April 27, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board