United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Los Angeles, CA, Employer 

__________________________________________ 

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Docket No. 15-1554 

Issued: November 6, 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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On July 13, 2015 appellant filed a timely appeal of a May 21, 2015 nonmerit decision of 

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

the last merit decision, dated November 21, 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. 

ISSUE 

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

appellant’s request for an oral hearing as that it was not timely filed. 

FACTUAL HISTORY 

On January 5, 2005 appellant, then a 44-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that she injured her left knee in the performance of duty on 

 1

 5 U.S.C. § 8101 et seq.
2

December 28, 2004 when she fell in a hole in the ground at the employing establishment, landing 

on her knees. Her attending physician, Dr. Jin Xiao, Board-certified in occupational medicine, 

examined her on April 22, 2005 and diagnosed an irregular tear of the posterolateral aspect of the 

medial meniscus as demonstrated on a magnetic resonance imaging (MRI) scan. He also found 

degenerative changes in the left knee which were aggravated by appellant’s December 28, 2004 

work injury. Appellant returned to limited-duty work on July 22, 2005. 

Appellant underwent a second MRI scan on March 1, 2010 which demonstrated a tear of 

the posterior horn of the medial meniscus of the left knee. On June 26, 2012 Dr. Ronald A. 

Navarro, a Board-certified orthopedic surgeon, performed a left knee arthroscopy with left partial 

medial meniscectomy. 

OWCP accepted appellant’s claim for contusion of the knee, left knee internal 

derangement, tear of the medial meniscus, and temporary aggravation of osteoathrosis of the left 

knee. 

Appellant filed CA-7 forms requesting a schedule award on July 30 and 

September 29, 2014. 

On June 19, 2014 OWCP referred appellant for a second opinion evaluation with 

Dr. Mark Bernhard, an osteopath, Board-certified in physical medicine and rehabilitation, to 

determine her permanent impairment for schedule award purposes. In a report dated August 14, 

2014, Dr. Bernhard determined that appellant had reached maximum medical improvement and 

that she had five percent impairment of her left lower extremity in accordance with the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2

OWCP referred appellant’s claim to an OWCP medical consultant who concurred with 

Dr. Bernhard’s impairment rating of five percent of the left lower extremity. 

By decision dated November 21, 2014, OWCP granted appellant a schedule award for 

five percent impairment of the left lower extremity. Appellant submitted a request for an oral 

hearing on December 23, 2014 which was postmarked that same date. 

OWCP’s Branch of Hearings and Review issued a decision on May 21, 2015 denying 

appellant’s request for an oral hearing because her request was not made within 30 days of the 

November 21, 2014 merit decision. It further found that the issue in appellant’s claim could be 

addressed through the submission of evidence in the reconsideration process. 

LEGAL PRECEDENT 

 Section 8124(b) of FECA3

 concerning a claimant’s entitlement to a hearing before an 

OWCP representative, states: “Before review under section 8128(a) of this title, a claimant ... 

not satisfied with a decision of the Secretary ... is entitled, on request made within 30 days after 

 2

 A.M.A., Guides, 6th ed. (2009). 

3

 5 U.S.C. §§ 8101-8193. 
3

the date of issuance of the decision, to a hearing on [her] claim before a representative of the 

Secretary.”4 Section 10.615 of OWCP’s regulations implementing this section of FECA 

provides that a claimant shall be afforded a choice of an oral hearing or a review of the written 

record.5

 OWCP regulations provide that the request must be sent within 30 days of the date of 

the decision for which a hearing is sought and also that the claimant must not have previously 

submitted a reconsideration request (whether or not it was granted) on the same decision.6

 The Board has held that OWCP, in its broad discretionary authority in the administration 

of FECA,7

 has the power to hold hearings and reviews of the written record in certain 

circumstances where no legal provision was made for such reviews and that OWCP must 

exercise this discretionary authority in deciding whether to grant a hearing or review of the 

written record.8

 OWCP procedures, which require OWCP to exercise its discretion to grant or 

deny a hearing or review of the written record when the request is untimely or made after 

reconsideration, are a proper interpretation of FECA and Board precedent.9

 

ANALYSIS 

In the instant case, OWCP properly determined appellant’s December 23, 2014 request 

for an oral hearing was untimely filed as it was made more than 30 days after the issuance of its 

November 21, 2014 decision. It, therefore, properly denied appellant’s hearing as a matter of 

right. 

 OWCP then proceeded to exercise its discretion, in accordance with Board precedent, to 

determine whether to grant a hearing in this case. It determined that a hearing was not necessary 

as the issue in the case was medical and could be resolved through the submission of medical 

evidence in the reconsideration process. Therefore, OWCP properly denied appellant’s request 

for a hearing as untimely and properly exercised its discretion in determining to deny her request 

for a hearing as she had other review options available. 

CONCLUSION 

The Board finds that OWCP’s Branch of Hearings and Review properly denied 

appellant’s request for an oral hearing on the basis that the request was untimely and could be 

addressed through the reconsideration process. 

 4 Id. at § 8124(b)(1). 

5

 20 C.F.R. § 10.615. 

6 Id. at § 10.616(a). 

7

 5 U.S.C. §§ 8101-8193. 

8 Marilyn F. Wilson, 52 ECAB 347 (2001). 

9 Daniel J. Perea, 42 ECAB 214, 221 (1990). 
4

ORDER 

IT IS HEREBY ORDERED THAT the May 21, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 6, 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