United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.S., Appellant 

and 

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 15-1458 

Issued: December 22, 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 26, 2015 appellant filed a timely appeal from a December 29, 2014 nonmerit 

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

elapsed since the last merit decision dated August 22, 2014 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. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant timely requested an oral argument before the Board. After exercising its discretion, by order dated 

October 15, 2015, the Board denied appellant’s request for oral argument as the arguments on appeal could be 

adequately addressed in a decision based on review of the case record. Order Denying Request for Oral Argument, 

Docket No. 15-1458 (issued October 15, 2015). 
2

FACTUAL HISTORY 

On May 30, 2014 appellant, then a 58-year-old engineering technician, submitted a claim 

for traumatic injury (Form CA-1). He alleged that on May 11, 2014 he injured his right shoulder 

and left lower knee when a loader fell on him. 

By decision dated August 22, 2014, OWCP denied appellant’s claim, noting that the only 

evidence received along with his claim was a request for authorization of an outpatient visit. 

By letter dated November 10, 2014 and received by OWCP on November 19, 2014, 

appellant requested an oral hearing before an OWCP hearing representative.3

 With his request, 

he included a narrative statement regarding his reason for requesting a hearing. 

By decision dated December 29, 2014, the Branch of Hearings and Review denied 

appellant’s hearing request as untimely. A hearing representative noted that OWCP had issued 

its decision on August 22, 2014, while appellant’s hearing request was dated November 10, 

2014, which was more than 30 days after OWCP’s decision. He noted that the postmark date 

used in this decision was the date of the letter, as the postmark was illegible. Consequently, the 

hearing representative found that appellant was not entitled to a hearing as a matter of right, as 

the request was submitted more than 30 days after OWCP’s decision. He also considered 

whether to grant appellant a discretionary hearing, but decided that the question of appellant’s 

entitlement to compensation benefits could equally well be addressed by a request for 

reconsideration before OWCP. 

LEGAL PRECEDENT 

A claimant, injured on or after July 4, 1966, who has received a final adverse decision by 

OWCP may obtain a hearing by writing to the address specified in the decision.4 The hearing 

request must be sent within 30 days (as determined by postmark or other carrier’s date marking) 

of the date of the decision for which a hearing is sought. The claimant must not have previously 

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

request is not made within 30 days, a claimant is not entitled to a hearing as a matter of right. 

However, the Branch of Hearings and Review may exercise its discretion to either grant or deny 

a hearing.5

ANALYSIS 

Appellant’s November 10, 2014 hearing request was date stamped as received on 

November 19, 2014. The hearing representative noted that appellant’s form was dated 

 3

 The record includes an imaged copy of the envelope that contained the hearing request. However, the postmark 

date is illegible. The request was properly addressed to the Branch of Hearings and Review in accordance with the 

instructions on the appeal request form. 

4

 20 C.F.R. § 10.616(a). 

5

 5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones, Jr., 57 ECAB 467, 472-73 (2006); Herbert C. Holley, 33 

ECAB 140 (1981). 
3

November 10, 2014, which was more than 30 days after OWCP’s August 22, 2014 decision. He 

further noted that the postmark on the request was illegible, and thus the date of the letter was 

used to determine timeliness in lieu of the postmark. 

The Board notes that the imaged copy of the envelope does not have a legible postmark 

date. Where the postmark is not legible, the hearing request will be deemed timely unless 

OWCP has kept evidence of date of delivery on the record reflecting that the request is 

untimely.6

 As noted, the appeal request form was date stamped as having been received by the 

Branch of Hearings and Review on November 19, 2014. Accordingly, the evidence regarding 

date of delivery, as well as the date of the request itself, were more than 30 days after OWCP’s 

August 22, 2014 decision. Appellant’s request was thus untimely and he was not entitled to a 

hearing as a matter of right. 

The Branch of Hearings and Review also reviewed appellant’s request and denied it as 

his claim could be addressed by requesting reconsideration before OWCP. The Board finds that 

the hearing representative properly exercised her discretionary authority in denying appellant’s 

request for a hearing.7

CONCLUSION 

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

request for an oral hearing as untimely. 

 6

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 

2.1601.4a (October 2011). Where the hearing request is mailed directly to the Branch of Hearings and Review, the 

request will be date stamped, and both the envelope and request will be scanned into the case file. Id. at Chapter 

2.1601.3a. 

7 Mary B. Moss, 40 ECAB 640, 647 (1989). Abuse of discretion is generally shown through proof of manifest 

error, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic and probable 

deductions from known facts. See André Thyratron, 54 ECAB 257, 261 (2002). 
4

ORDER 

IT IS HEREBY ORDERED THAT the December 29, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 22, 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