United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.P., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

AIR FORCE NATIONAL GUARD, 

Sioux Falls, SD, Employer 

__________________________________________ 

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Docket No. 16-0477 

Issued: April 18, 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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 13, 2016 appellant filed a timely appeal from a January 5, 2016 nonmerit 

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

elapsed from May 7, 2015, 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

 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)(1). 
2

On appeal, appellant contends that he sustained a work-related injury on March 18, 2015 

due to his exposure to a hazardous substance. 

FACTUAL HISTORY 

On March 19, 2015 appellant, then a 40-year-old aircraft mechanic, filed a traumatic 

injury claim (Form CA-1) alleging that on March 18, 2015 he inhaled hydrazine at work. A 

coworker stated that he witnessed the incident. 

By letter dated March 26, 2015, OWCP notified appellant of the deficiencies of his claim 

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

submit medical evidence, if appellant had been treated at its medical facility. 

In a March 18, 2015 medical report, Dr. Terry D. Yeager, a Board-certified radiologist, 

found that appellant’s chest x-ray was normal. 

An unsigned nurse interview note dated March 25, 2015 revealed that appellant had been 

seen for a follow-up visit for his hydrazine exposure. The note provided a history of his medical, 

social, and family background and indicated that his vitals were taken. 

A progress note dated March 25, 2015 of Dr. Darren D.W. Chester, a Board-certified 

family practitioner, provided appellant’s history of injury and medical, family, and social 

background. It found that appellant had no symptoms. Appellant’s vitals were noted and his 

laboratory test results were reviewed. He was diagnosed with exposure to a toxic substance. 

In a May 7, 2015 decision, OWCP accepted that the March 18, 2015 incident occurred as 

alleged. However, it found that the medical evidence failed to establish a medical condition 

causally related to the accepted employment incident. 

In an appeal request form dated May 21, 2015, postmarked on June 12, 2015, and 

received by OWCP’s Branch of Hearings and Review on June 16, 2015, appellant requested a 

telephone hearing with an OWCP hearing representative. 

By decision dated January 5, 2016, the Branch of Hearings and Review denied 

appellant’s request for a telephone hearing as it was untimely filed. It found that the request was 

not postmarked within 30 days of the issuance of the May 7, 2015 OWCP merit decision. After 

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

case could be equally well 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

 Its 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 as it was filed more than 30 days after the issuance of OWCP’s May 7, 

2015 merit decision. The May 21, 2015 form, on which appellant requested the hearing, was 

postmarked on June 12, 2015. Because the postmark date was more than 30 days after the date 

of OWCP’s May 7, 2015 decision, he was not entitled to a hearing as a matter of right.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 January 5, 2016 

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 he sustained a work-related injury on March 18, 2015 

due to his exposure to a hazardous substance. As explained, however, the Board does not have 

jurisdiction to review the merits of the May 7, 2015 denial. The only decision properly before 

the Board on this appeal is the January 5, 2016 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 January 5, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 18, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board