United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.O., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Suffolk, VA, Employer 

__________________________________________ 

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Docket No. 15-1346 

Issued: November 17, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 2, 2015 appellant filed a timely appeal from the May 11, 2015 nonmerit decision 

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

from the last merit decision, dated November 12, 2014, and 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.2

ISSUE 

The issue is whether OWCP abused its discretion in denying appellant’s request for 

review of the written record. 

 1

 5 U.S.C. § 8101 et seq.

2

 Appellant filed a timely request for oral argument. By order dated October 16, 2015, the Board denied her 

request as her arguments could be adequately addressed in a decision based on a review of the case record. Order 

Denying Request for Oral Argument, Docket No. 15-1346 (issued October 16, 2015). 
2

FACTUAL HISTORY 

On December 2, 2013 appellant, then a 41-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that on September 9, 2013 she first became aware that her 

right rotator cuff tear was employment related. 

In support of her claim, appellant submitted disability notes covering the period 

September 25 to November 27, 2013 from Dr. Manish A. Patel, a treating Board-certified 

orthopedic surgeon; a September 25, 2014 magnetic resonance imaging (MRI) scan; disability 

and referral notes dated September 11 and 18, 2013 by Stefan Brecke, a physician assistant, who 

diagnosed right shoulder acute muscle sprain; and a September 12, 2013 disability note with a 

diagnosis of right shoulder strain by James Rhee, a physician assistant. 

By correspondence dated December 24, 2013, OWCP informed appellant that the 

evidence of record was insufficient to support her claim. Appellant was advised as to the 

medical and factual evidence required to support her claim and given 30 days to provide the 

requested information. 

In response to OWCP’s request for additional evidence, appellant submitted a 

December 11, 2013 Certification of Health Care Provider for Employee’s Serious Health 

Condition form, physical therapy notes, an October 16, 2013 surgery report, a January 3, 2012 

narrative statement,3 and the medical evidence set forth below. 

In an undated report, Dr. Patel noted treatment dates and that right shoulder arthroscopic 

and rotator cuff repair surgery had been performed on October 16, 2013. He noted that 

appellant’s symptoms and that a review of her MRI scan revealed complete supraspinatus tendon 

tear, which he opined had caused a complete rotator cuff rupture. In concluding, Dr. Patel 

opined that her condition could have been aggravated by her work activity. 

In reports dated September 10 and 25 and October 25, 2013, Dr. Patel reported that 

appellant had been seen on September 10, 2013 after she heard her shoulder pop while 

navigating her automobile through a parking lot. Physical examination findings were provided. 

Dr. Patel diagnosed a complete right shoulder rotator cuff rupture and tear. An October 3, 2013 

right shoulder arthrogram showed right shoulder rotator cuff tear. 

Dr. Patel, in a November 27, 2013 report, noted that appellant was seen following her 

right shoulder arthroscopic surgery and provided physical examination findings. He diagnosed a 

complete rotator cuff rupture. 

By decision dated April 15, 2014, OWCP denied appellant’s claim as it found that the 

medical evidence of record was insufficient to establish causal relationship between the 

diagnosed right shoulder rotator cuff rupture and her employment. 

 3

 The date on the statement appears to be a typographical error as the date is January 3, 2013 and appellant refers 

to work events beginning on September 2, 2013. 
3

In a form dated May 7, 2014, appellant requested a review of the written record by an 

OWCP hearing representative. 

By decision dated November 12, 2014, an OWCP hearing representative affirmed the 

denial of appellant’s claim. 

On April 16, 2015 OWCP received appellant’s April 10, 2015 form requesting review of 

the written record by an OWCP hearing representative. The postmark on the attached envelope 

was April 13, 2015. 

By decision dated May 11, 2015, OWCP denied appellant’s request for review of the 

written record as it found that appellant had already requested a review of the written record and 

that a decision on review of the written record was issued on November 12, 2014. As such, 

appellant was not entitled to another review of the written record on the same issue as a matter of 

right. OWCP exercised its discretion and denied her second request for a review of the written 

record as it found that the issue involved in the case could be addresed equally well on 

reconsideration by submitting medical evidence establishing that the claimed medical condition 

was causally related to her employment. 

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.4 A request for a hearing or review on the 

written record must be submitted, in writing, within 30 days of the date of the decision for which 

a hearing is sought.5 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 have not previously submitted a reconsideration request (whether or not it 

was granted) on the same decision.6 Although a claimant who has previously sought 

reconsideration is not, as a matter of right, entitled to a hearing or review of the written record, 

the Branch of Hearings and Review may exercise its discretion to either grant or deny a hearing 

following reconsideration.7 Similarly, the Branch of Hearings and Review may exercise its 

discretion to conduct a hearing or review the written record where a claimant requests a second 

hearing or review on the written record on the same issue.8

ANALYSIS 

By decision dated April 15, 2014, OWCP found that appellant failed to establish that the 

diagnosed medical condition was causally related to her employment duties. On a form dated 

 4

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

5 Id. at 10.616(a). 

6 Id. 

7 D.E., 59 ECAB 438 (2008); Hubert Jones, Jr., 57 ECAB 467 (2006). 

8 Supra note 5. 
4

May 7, 2014, appellant requested a review of the written record using the appeal request form 

that accompanied OWCP’s April 15, 2014 merit decision. By decision dated November 12, 

2014, an OWCP hearing representative affirmed the denial of her claim. 

On April 16, 2015 OWCP received a form dated April 10, 2015, postmarked April 13, 

2015, requesting a review of the written record of the November 12, 2014 decision. By decision 

dated May 11, 2015, it denied appellant’s request for a review of the written record as she had 

previously requested and received a review of the written record. Thus, OWCP found that she 

was not entitled to a review of the written record as a matter of right. The Board agrees that 

appellant was not entitled to a review of the written record as a matter of right as she had 

previously requested and received a review of the written record by an OWCP hearing 

representative.9

The Board finds that OWCP properly exercised its discretion in denying appellant’s 

request for another review of the written record by determining that the issue in the case could be 

addressed equally well by requesting reconsideration and submitting new evidence relevant to 

the issue at hand.10 The Board has held that the only limitation on OWCP’s discretionary 

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 logic 

and probable deduction from established facts.11 There is no evidence in the current case that 

OWCP abused its discretion in denying appellant’s request for a review of the written record 

under these circumstances. The Board finds that OWCP acted properly in denying appellant’s 

April 10, 2015 request for review of the written record. 

CONCLUSION 

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

record. 

 9

 20 C.F.R. § 10.616(a). See also D.E., supra note 7. 

10 Hubert Jones, Jr., supra note 7; Sandra F. Powell, 45 ECAB 877 (1994). 

11 See M.C., Docket No. 09-2314 (issued August 20, 2010); Claudia Vazquez, 52 ECAB 496 (2001); Daniel J. 

Perea, 42 ECAB 214 (1990). 
5

ORDER 

IT IS HEREBY ORDERED THAT the May 11, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 17, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board