United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.H., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

GULF COAST VETERANS HEALTH CARE 

SYSTEM, Biloxi, MS, Employer 

__________________________________________ 

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Docket No. 15-1025 

Issued: September 25, 2015 

Appearances: Case Submitted on the Record

John Mechanic, for the appellant. 

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 March 31, 2015 appellant, through his representative, timely appealed an October 30, 

2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision of April 10, 2013 to the filing of the current 

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 this claim.2

ISSUE 

The issue is whether the Branch of Hearings and Review properly denied appellant’s 

October 7, 2014 hearing request. 

 1

 5 U.S.C. §§ 8101-8193 (2006). 

2

 The case record provided the Board evidence received after OWCP issued its October 30, 2014 decision. The 

Board is precluded from considering evidence that was not in the case record at the time OWCP rendered its final 

decision. 20 C.F.R. § 501.2(c)(1) (2014). 
2

FACTUAL HISTORY 

Appellant, a 61-year-old former housekeeping aid, filed a traumatic injury claim alleging 

that he injured his back in the performance of duty on January 9, 2006.3

 OWCP initially 

accepted the claim for lumbar sprain/strain and intervertebral disc disorder with myelopathy. 

Subsequently, it expanded appellant’s claim to include left disc protrusion at L4-5, central disc 

protrusion at L5-S1, and left lumbar and sciatic radiculopathy. Appellant underwent lumbar 

surgery in November 2009 and April 2012. OWCP authorized both surgical procedures. 

By decision dated November 2, 2010, OWCP granted a schedule award for one percent 

left lower extremity (LLE) impairment.4

 The Branch of Hearings and Review affirmed the 

schedule award in a May 3, 2011 decision, and OWCP denied reconsideration on 

October 19, 2011. 

As noted, appellant underwent a revision lumbar fusion on April 2, 2012, performed by 

Dr. Terry C. Smith, a neurosurgeon. Following surgery, appellant returned to full-time, modified 

duty on July 10, 2012. He filed a claim (Form CA-7) for an additional schedule award on 

February 12, 2013. 

In a March 3, 2013 report, Dr. Smith indicated that appellant had reached maximum 

medical improvement (MMI) as of December 5, 2012. He diagnosed post-laminectomy 

syndrome. Dr. Smith reported subjective complaints of back pain and leg numbness, but noted 

objectively appellant’s examination was normal. He found 12 percent LLE impairment based on 

spinal nerve extremity impairment. 

OWCP referred the case to its district medical adviser (DMA), who found there was no 

change from the prior award.5

 In a March 25, 2013 report, the DMA explained that appellant’s 

surgeon noted that objectively his examination was normal. He also noted that Dr. Smith failed 

to explain how he had arrived at his 12 percent LLE impairment rating. 

In an April 10, 2013 decision, OWCP denied appellant’s claim for an additional schedule 

award. 

On April 7, 2014 OWCP received appellant’s request for reconsideration. Appellant 

utilized the appeal request form that accompanied the April 10, 2013 decision. Additionally, he 

resubmitted Dr. Smith’s March 3, 2013 impairment rating.6

 3

 Appellant alleged that he felt pain in his mid to lower back while picking up a heavy trash bag to place in a 

dumpster. 

4

 The rating was based on a mild sensory deficit involving the S1 nerve root. See Proposed Table 2, The Guides 

Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009). 

5

 Dr. Howard “H.P.” Hogshead, the DMA, is a Board-certified orthopedic surgeon. 

6

 Since issuing its April 10, 2013 decision, OWCP received various other medical records, many of which 

pertained to appellant’s April 2012 hospitalization, surgery, and postsurgery recovery period. 
3

By decision dated April 17, 2014, OWCP denied appellant’s request for reconsideration. 

The senior claims examiner found that the additional evidence submitted was cumulative and 

repetitious, and therefore, insufficient to warrant further merit review. Additionally, OWCP 

noted that Dr. Smith’s March 3, 2013 rating had already been deemed insufficient to support an 

award in excess of the previous one percent LLE impairment. 

In October 2014 appellant again submitted the appeal request form that accompanied 

OWCP’s April 10, 2013 decision. The form was undated, and this time he requested both an oral 

hearing and an appeal before the Board. Appellant identified OWCP’s April 17, 2014 decision 

as the subject of his appeal. The envelope was addressed to the Board and it was postmarked 

October 7, 2014. 

 In an October 30, 2014 decision, the Branch of Hearings and Review denied appellant’s 

request for an oral hearing. The decision noted that appellant had already requested 

reconsideration, which OWCP denied on April 17, 2014. As such, appellant was not entitled to a 

hearing on the same issue as a matter of right. 

LEGAL PRECEDENT 

Any claimant dissatisfied with an OWCP decision shall be afforded an opportunity for 

either an oral hearing or a review of the written record.7 A request for a hearing must be 

submitted, in writing, within 30 days of the date of the decision for which a hearing is sought.8 If 

the request is not made within 30 days, a claimant is not entitled to a hearing or a review of the 

written record as a matter of right. OWCP regulations further provide that the “claimant must 

not have previously submitted a reconsideration request (whether or not it was granted) on the 

same decision.”9

 Although a claimant who has previously sought reconsideration is not, as a 

matter of right, entitled to a hearing, the Branch of Hearings and Review may exercise its 

discretion to either grant or deny a hearing following reconsideration.10 Similarly, the Branch of 

Hearings and Review may exercise its discretion to conduct a hearing where a claimant requests 

a second hearing on the same issue.11

ANALYSIS 

Appellant requested an oral hearing utilizing the appeal request form that accompanied 

OWCP’s April 10, 2013 merit decision. The hearing request was postmarked on 

October 7, 2014. Appellant had previously requested reconsideration of the April 10, 2013 

decision, which OWCP denied on April 17, 2014. His October 7, 2014 hearing request was not 

only untimely as it was postmarked more than 30 days after the April 10, 2013 decision, but he 

 7

 5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.615. 

8 Id. at § 10.616(a). 

9 Id.

10 Hubert Jones Jr., 57 ECAB 467, 472-73 (2006). 

11 Id.
4

had also previously requested reconsideration. Consequently, appellant is not entitled to a 

hearing as a matter of right.12

CONCLUSION 

The Branch of Hearings and Review properly denied appellant’s October 7, 2014 request 

for a hearing. 

ORDER 

IT IS HEREBY ORDERED THAT the October 30, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 25, 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 

 12 20 C.F.R. § 10.616(a).