United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.P., Appellant 

and 

DEPARTMENT OF AGRICULTURE, 

VETERINARY SERVICES, Oklahoma City, OK, 

Employer 

__________________________________________ 

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Docket No. 15-173 

Issued: March 9, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 3, 2014 appellant filed a timely appeal of October 3 and June 11, 2014 

nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

lacks jurisdiction over the merits of this case.1

ISSUES 

The issues are: (1) whether OWCP properly denied appellant’s request for an oral 

hearing; and (2) whether it properly determined that appellant’s request for reconsideration of a 

May 9, 2012 schedule award decision was untimely and failed to show clear evidence of error. 

 1

 The Board has jurisdiction over final decisions of OWCP. See 20 C.F.R. § 501.2(c). An appeal of OWCP 

decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R. 

§ 501.3(e) (2008). 
2

FACTUAL HISTORY 

On May 1, 2002 appellant, then a 48-year-old animal health specialist, filed a traumatic 

injury claim (Form CA-1) alleging that he sustained an injury in the performance of duty on 

April 19, 2002 when he tripped and fell. OWCP accepted the claim for a left ankle fracture. On 

December 18, 2009 appellant filed a claim for a recurrence of disability commencing 

November 2, 2009. By decision dated March 10, 2010, OWCP denied the claim for a recurrence 

of disability. 

On March 2, 2011 appellant submitted a claim for compensation (Form CA-7) for a 

schedule award. By letter dated March 9, 2012, OWCP requested that he submit medical 

evidence regarding a permanent impairment under the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (sixth edition). No response was received. 

By decision dated May 9, 2012, OWCP denied his claim for a schedule award as he had 

not submitted medical evidence regarding a permanent impairment. A copy of the decision was 

mailed to his address of record. 

In a report dated April 5, 2013, Dr. Richard Langerman, Jr., an osteopath, indicated that 

appellant’s retained hardware in the left ankle was removed surgically. By letter dated March 3, 

2014, appellant inquired as to the status of his schedule award claim. On March 28, 2014 OWCP 

mailed him a copy of the May 9, 2012 decision. 

On June 9, 2014 appellant submitted a May 30, 2014 report from Dr. Langerman, who 

noted that he had examined appellant on February 20, 2014 and opined that he had an eight 

percent impairment under the A.M.A., Guides due to intermittent discomfort in the left ankle. 

On June 10, 2014 appellant submitted a request for an oral hearing. The letter was 

postmarked June 5, 2014. 

By decision dated June 11, 2014, OWCP denied the request for a hearing. It found the 

request was untimely filed, and the issue could equally well be addressed by requesting 

reconsideration and submitting relevant evidence. 

On June 13, 2014 appellant submitted the February 20, 2014 report from Dr. Langerman, 

who provided results on examination and diagnosed painful hardware, left ankle. 

Appellant requested reconsideration of his claim on July 7, 2014. He stated that to his 

knowledge he had never received the May 9, 2012 decision. 

By decision dated October 3, 2014, OWCP denied the request for reconsideration of the 

schedule award finding it untimely and that it failed to show clear evidence of error by OWCP. 

LEGAL PRECEDENT -- ISSUE 1 

The statutory right to a hearing under 5 U.S.C. § 8124(b)(1) follows the initial final merit 

decision of OWCP. Section 8124(b)(1) provides as follows: “Before review under section 

8128(a) of this title, a claimant for compensation not satisfied with a decision of the Secretary 
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under subsection (a) of this section is entitled, on request made within 30 days after the date of 

issuance of the decision, to a hearing on his claim before a representative of the Secretary....” 

OWCP regulations state that the hearing request must be sent within 30 days, as 

determined by the postmark or other carriers’ date marking.2

 If the request is not made within 30 

days or if it is made after a reconsideration request, a claimant is not entitled to a hearing as a 

matter of right.3

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

administration of FECA, has the power to hold hearings in certain circumstances where no legal 

provision was made for such hearings and that OWCP must exercise this discretionary authority 

in deciding whether to grant a hearing.4

 

The Board has held that in the absence of evidence to the contrary, it is presumed that a 

notice mailed to an addressee in the ordinary course of business was received by the addressee.5

 

This presumption applies equally to OWCP and claimant’s representatives.6

 The appearance of a 

properly addressed copy in the case record, together with the mailing custom or practice of 

OWCP itself, will raise the presumption that the original was received by the addressee.7

 

ANALYSIS -- ISSUE 1 

On May 9, 2012 OWCP issued a decision denying appellant’s request for a schedule 

award. Appellant requested an oral hearing by letter postmarked September 5, 2014. The 

hearing request therefore was clearly made more than 30 days after the May 9, 2012 decision. 

Appellant stated that he has no knowledge of receiving the May 9, 2012 decision. However, the 

copy of the decision in the record reflects that it was properly addressed to appellant’s correct 

address of record. Therefore, as noted above, there is a presumption that the decision was 

properly mailed and received by appellant in the due course of business.8 No contrary evidence 

was submitted to rebut the presumption in this case and the decision was not returned to OWCP. 

The Board, thus, finds that OWCP properly found appellant’s hearing request to be untimely. 

As the hearing request was untimely, appellant is not entitled to a hearing as a matter of 

right. OWCP must exercise its discretion in determining whether to grant the hearing. In this 

case, it stated that the issue could be addressed through the reconsideration process and the 

submission of new evidence. This is considered a proper exercise of the OWCP’s discretionary 

 2

 20 C.F.R. § 10.616(a). 

3 Claudio Vazquez, 52 ECAB 496 (2001). 

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

5 See Larry L. Hill, 42 ECAB 596, 600 (1991). 

6 Id.

7 See Larry L. Hill, supra note 5; see also L.D., Docket No. 14-468 (issued July 1, 2014). 

8 Supra note 7. 
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authority.9 The Board accordingly finds that OWCP properly denied the hearing request in this 

case. 

LEGAL PRECEDENT -- ISSUE 2 

To the extent that a claimant asserts that a schedule award decision was erroneous based 

on his or her medical condition at that time, this would properly be considered a request for 

reconsideration.10 A claimant may, however, seek an increased schedule award if the evidence 

establishes that he sustained increased impairment at a later date causally related to the accepted 

employment injury. Even if the term reconsideration is used, when a claimant is not attempting 

to show error in the prior schedule award decision and submits medical evidence regarding a 

permanent impairment at a date subsequent to the prior schedule award decision, it should be 

considered a claim for an increased schedule award.11 A proper claim for an increase in 

permanent impairment is not subject to time limitations or to the clear evidence of error 

standard.12

ANALYSIS -- ISSUE 2 

In the present case, there was no indication that appellant was seeking reconsideration of 

the May 9, 2012 decision. Appellant had not submitted medical evidence prior to May 9, 2012 

discussing a permanent impairment, and he provided no arguments as to the error in the decision. 

He submitted new medical evidence, including February 20 and May 30, 2014 reports from 

Dr. Langerman, which provided an opinion as to a permanent impairment under the A.M.A., 

Guides, based on a February 20, 2014 examination. 

The Board finds that appellant had submitted new medical evidence in support of a claim 

for a schedule award. OWCP should have issued a new merit decision on the claim consistent 

with Board precedent on the issue. The case will be remanded to OWCP for a proper decision 

on the claim. 

CONCLUSION 

The Board finds that OWCP properly denied a request for a hearing. The Board further 

finds that OWCP improperly adjudicated a claim for an increased schedule award as a request 

for reconsideration. 

 9 See Mary E. Hite, 42 ECAB 641, 647 (1991). 

10 See J.K., Docket No. 14-1082 (issued November 24, 2014). 

11 B.K., 59 ECAB 228 (2007). 

12 R.P., Docket No. 10-1123 (issued January 25, 2011). 
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ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated June 11, 2014 is affirmed. The decision dated October 3, 2014 is 

set aside and the case remanded for further action consistent with this decision of the Board. 

Issued: March 9, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board