United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.G., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

AUDIE MURPHY, San Antonio, TX, Employer 

__________________________________________ 

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Docket No. 15-274 

Issued: March 23, 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 HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 18, 2014 appellant filed a timely appeal from a May 23, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying a hearing. 

Because more than 180 days elapsed from the most recent merit decision dated October 9, 2013 

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 the case.2 

ISSUE 

The issue is whether OWCP properly denied a request for an oral hearing.3

 

 1

 5 U.S.C. § 8101 et seq. 

2

 An appeal of final adverse OWCP decisions issued on or after November 19, 2008 must be filed within 180 

days of the decision. See 20 C.F.R. § 501.3(e). 

3

 The Board notes that appellant requested a review of the written record. OWCP, however, in its May 23, 2014 

decision, refers to appellant’s request as a request for oral hearing. 
2

FACTUAL HISTORY 

On May 29, 2013 appellant, then a 47-year-old nurse, filed a traumatic injury claim and 

claim for compensation alleging that on February 14, 2013 she had pulled or strained her left 

biceps muscle while carrying a box from her car to the clinic, a distance of over 600 to 700 feet. 

She stated that the injury occurred in the parking lot of the Lackland Air Force Base. There is no 

indication that she stopped work. 

By decision dated October 9, 2013, OWCP denied the claim as the evidence was 

insufficient to establish that the injury and/or medical condition arose during the scope of 

employment or within the scope of compensable work factors. It specifically noted that 

appellant had stopped by the American Cancer Society on her way to work on February 14, 2013 

to pick up patient education materials and the employing establishment stated in its August 6, 

2013 statement that, at the time of injury, appellant was not at a place of employment and had no 

entitlement to reimbursement for travel. 

On April 9, 2014 appellant requested a review of the written record. On the appeal 

request form, she noted this was the second request and the original request was dated 

December 12, 2013. The request was postmarked April 9, 2014. Several medical reports were 

also submitted. 

By decision dated May 23, 2014, OWCP denied appellant’s request for a hearing on the 

grounds that it was not timely filed within 30 days of the October 9, 2013 decision. It exercised 

its discretion by performing a limited review of the evidence and further denied her request as 

the issue in the case could be addressed equally well pursuant to a valid request for 

reconsideration. 

LEGAL PRECEDENT 

Section 8124(b)(1) of FECA provides that a claimant not satisfied with a decision of 

OWCP has a right, upon timely request, to a hearing before an OWCP representative.4 Section 

10.615 of Title 20 of the Code of Federal Regulations provide that a hearing is a review of an 

adverse decision by an OWCP hearing representative. Initially, the claimant can choose between 

two formats: an oral hearing or a review of the written record.5

 

A claimant is not entitled to a hearing if the request is not made within 30 days of the 

date of issuance of the decision as determined by the postmark or other carrier’s date marking of 

the request.6

 OWCP has discretion, however, to grant or deny a request that is made after this 

 4

 5 U.S.C. § 8124(b)(1). See A.B., 58 ECAB 546 (2007); Joe Brewer, 48 ECAB 411 (1997). 

5

 20 C.F.R. § 10.615. 

6 Id. at § 10.616(a). 
3

30-day period.7 In such a case, it will determine whether to grant a discretionary hearing and, if 

not, will so advise the claimant with reasons.8

ANALYSIS 

By decision dated October 9, 2013, OWCP denied appellant’s claim for compensation as 

the evidence did not establish that she was injured in the performance of duty. Appellant 

requested a review of the written record on an appeal request form dated and postmarked 

April 9, 2014. OWCP denied her request by decision dated May 23, 2014 as it was filed more 

than 30 days after OWCP’s October 9, 2013 decision. 

Appellant’s letter requesting an oral hearing was postmarked on April 9, 2014, more than 

30 days after issuance of the October 9, 2013 decision. Thus, OWCP properly found that her 

request for an oral hearing was not timely filed under section 8124(b)(1) of FECA and that she 

was not entitled to a hearing as a matter of right. While she indicated that this was her second 

request, there is no evidence of record to support an earlier request for review of the written 

record, or any other review, made prior to April 9, 2014.9

OWCP exercised its discretion and denied appellant’s request for a hearing on the 

additional grounds that she could address the issue in her case equally well by submitting 

relevant evidence accompanying a valid request for reconsideration. Because reconsideration 

exists as an alternative review right to address the issues raised by OWCP’s October 9, 2013 

decision, the Board finds that OWCP did not abuse its discretion in denying appellant’s untimely 

request for an oral hearing.10

On appeal appellant argues the merits of her case. However, as previously noted, the 

Board does not have jurisdiction over the merits of this case. Appellant also submitted evidence 

on appeal. However, the Board may only review evidence that was in the record at the time 

OWCP issued its final decision.11

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for a hearing as 

untimely. 

 7 G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981). 

8 Id. See also Rudolph Bermann, 26 ECAB 354 (1975). 

9

 The Board notes that a December 12, 2013 request for hearing would also not have been filed within 30 days of 

October 9, 2013. 

10 See Gerard F. Workinger, 56 ECAB 259 (2005). 

11 See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); 

G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 
4

ORDER 

IT IS HEREBY ORDERED THAT the May 23, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 23, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board