United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.A., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, San Francisco, CA, Employer 

__________________________________________ 

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Docket No. 15-1937 

Issued: January 8, 2016 

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 September 28, 2015 appellant filed a timely appeal from a July 14, 2015 nonmerit 

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

elapsed from December 8, 2014, the most recent OWCP merit decision, 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 this case.2

ISSUE 

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

untimely filed pursuant to 5 U.S.C. § 8124. 

 1

 5 U.S.C. § 8101 et seq. 

2

 After issuance of OWCP’s July 14, 2015 decision and also on appeal, appellant submitted new evidence. The 

Board, however, is precluded from reviewing evidence which was not before OWCP at the time it issued its final 

decision. 20 C.F.R. § 501.2(c). 
2

On appeal, appellant contends that his claim was improperly denied based on a response 

from his former supervisor. 

FACTUAL HISTORY 

On June 10, 2014 appellant, then a 41-year-old technical enforcement officer, filed an 

occupational disease claim (Form CA-2) alleging that on May 21, 2014 he first became aware of 

his anxiety and stress, and first realized that his conditions were caused or aggravated by his 

work duties. 

In a May 27, 2014 letter, Dr. Tenessa M. Mackenzie, an attending Board-certified family 

practitioner, recommended that appellant be off work for two weeks due to stress and anxiety. 

She also recommended medications and counseling. Dr. Mackenzie advised that appellant 

should be able to return to work on June 9, 2014. 

By letter dated July 3, 2014, OWCP informed appellant of the deficiencies of his claim 

and requested additional medical and factual evidence. It also requested that the employing 

establishment respond to appellant’s allegations and submit medical evidence, if he had been 

treated at its medical facility. 

In an August 1, 2014 letter, Jeffrey W. Spada, an acting assistant special agent-in-charge, 

responded that, among other things, appellant shared responsibilities with two other positions in 

the immediate office and with other employees who all worked to cover the programmatic area. 

He was not exposed to stressors beyond the standard level of stress routine for a law enforcement 

agency or position. Mr. Spada submitted a copy of appellant’s technical enforcement officer 

position. 

By decision dated December 8, 2014, OWCP denied appellant’s occupational disease 

claim as the evidence failed to establish the factual component of fact of injury. 

In an appeal request form dated June 12, 2015, postmarked on June 15, 2015, and 

received by OWCP’s Branch of Hearings and Review on June 18, 2015, appellant requested a 

telephone hearing with an OWCP hearing representative. 

By decision dated July 14, 2015, the Branch of Hearings and Review denied appellant’s 

request for an oral hearing as it was untimely filed. It found that the request was not postmarked 

within 30 days of the issuance of the December 8, 2014 OWCP merit decision. After exercising 

its discretion, the Branch of Hearings and Review further found that the issue in the case could 

equally well be addressed through the reconsideration process. 

LEGAL PRECEDENT 

Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with 

a decision of the Secretary 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.3 Sections 10.617 and 10.618 of the federal regulations implementing this section of 

 3

 5 U.S.C. § 8124(b)(1). 
3

FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the 

written record by a representative of the Secretary.4 A claimant is entitled to a hearing or review 

of the written record as a matter of right only if the request is filed within the requisite 30 days as 

determined by postmark or other carrier’s date marking and before the claimant has requested 

reconsideration.5

 Although there is no right to a review of the written record or an oral hearing if 

not requested within the 30-day time period, OWCP may within its discretionary powers grant or 

deny appellant’s request and must exercise its discretion.6

 OWCP procedures require that it 

exercise its discretion to grant or deny a hearing when the request is untimely or made after 

reconsideration under section 8128(a).7

ANALYSIS 

The Board finds that OWCP properly determined that appellant’s request for an oral 

hearing was untimely filed as it was made more than 30 days after the issuance of OWCP’s 

December 8, 2014 merit decision. The June 12, 2015 form, on which appellant requested the 

hearing, was postmarked on June 15, 2015. The time limitation to request an oral hearing from 

OWCP’s Branch of Hearings and Review expired 30 days after OWCP’s December 8, 2014 

decision.8

 OWCP, therefore, properly denied appellant’s hearing as a matter of right. 

Although appellant’s request for a hearing was untimely, OWCP has the discretionary 

authority to grant the request and it must exercise such discretion. In its July 14, 2015 decision, 

it properly exercised its discretion by notifying appellant that it had considered the matter in 

relation to the issue involved and that additional argument and evidence could be submitted with 

a request for reconsideration. The Board has held that the only limitation on OWCP’s authority 

is reasonableness. An abuse of discretion is generally shown through proof of manifest error, a 

clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and 

probable deductions from established facts.9 In this case, there is no evidence of record that 

OWCP abused its discretion by denying appellant’s hearing request. Accordingly, the Board 

finds that OWCP properly denied appellant’s request for an oral hearing. 

On appeal, appellant contends that his claim was improperly denied based on a response 

from his former supervisor who was aware of his condition. As explained, however, the Board 

lacks jurisdiction to review the merits of the December 8, 2014 denial. The only decision 

properly before the Board on this appeal is the July 14, 2015 nonmerit decision which denied 

appellant’s request for an oral hearing as untimely filed. 

 4

 20 C.F.R. §§ 10.616, 10.617. 

5 Id. at § 10.616(a). 

6 Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999). 

7 See R.T., Docket No. 08-408 (issued December 16, 2008). 

8

 The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review 

commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB 90 (1989). 

9 Samuel R. Johnson, 51 ECAB 612 (2000). 
4

CONCLUSION 

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

untimely filed pursuant to 5 U.S.C. § 8124. 

ORDER 

IT IS HEREBY ORDERED THAT the July 14, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 8, 2016 

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