United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland, OH, Employer 

__________________________________________ 

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Docket No. 15-1641 

Issued: March 1, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 28, 2015 appellant filed a timely appeal of a March 31, 2015 nonmerit decision 

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

from the last merit decision, dated September 25, 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.2

ISSUE 

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

appellant’s request for a review of the written record as untimely. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within 

one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607. 
2

FACTUAL HISTORY 

On September 7, 2007 appellant, then a 36-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she injured her right knee while walking up steps to make a 

delivery. OWCP accepted appellant’s claim for right knee sprain and strain on November 16, 

2007 and for traumatic osteochondral defect on March 7, 2008. 

On March 27, 2008 appellant underwent a right knee arthroscopy with synovectomy and 

medial shelf plica takedown and chondroplasty of the medial patellar facet. She was released to 

return to full duty on July 14, 2008. 

Appellant filed a claim for recurrence of disability (Form CA-2a) received on 

September 19, 2008 alleging that her knee pain did not improve after her surgery and that she 

was partially disabled beginning August 11, 2008. She filed a claim for compensation (Form 

CA-7) on October 27, 2008 alleging that she used eight hours of leave without pay beginning on 

October 20, 2008. Appellant underwent a second right knee arthroscopy with chondroplasty of 

the patella, femoral groove, medial femoral condyle, and arthroscopic lateral release on 

October 20, 2008. 

By decision dated December 30, 2008, OWCP denied appellant’s September 19, 2008 

claim for a recurrence of total disability. Appellant returned to light-duty work on January 26, 

2009 and full duty on March 14, 2009. By decision dated April 1, 2009, OWCP’s Branch of 

Hearings and Review hearing representative reversed the December 30, 2008 decision of OWCP. 

By decision dated April 17, 2009, OWCP accepted appellant’s claim for a recurrence of 

disability. 

On November 3, 2009 appellant filed a claim for a schedule award (Form CA-7). OWCP 

subsequently referred appellant for a second opinion and on June 11, 2012 Dr. Manhal A. 

Ghanma, a Board-certified orthopedic surgeon, found that she had reached maximum medical 

improvement and that she had two percent impairment of the right lower extremity. 

By decision dated September 25, 2014, OWCP granted appellant a schedule award for 

seven percent impairment of her right lower extremity. 

In a February 11, 2015 letter, received on February 20, 2015, appellant requested a 

review of the written record from a hearing representative of the Branch of Hearings and 

Review. This letter was postmarked February 14, 2015. 

By decision dated March 31, 2015, the Branch of Hearings and Review denied 

appellant’s request for a review of the written record, finding that her request was untimely as it 

was made more than 30 days after the most recent merit decision dated September 25, 2014. The 

Branch of Hearings and Review further found that the issue in the case could equally well be 

addressed through the reconsideration process with the submission of new evidence regarding 

her permanent impairment. 
3

LEGAL PRECEDENT 

Section 8124(b) of FECA 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 

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

the Secretary.”3 Section 10.615 of OWCP 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.4

 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.5

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

of FECA,6

 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.7 OWCP procedures, which require it 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.8 

ANALYSIS 

The Board finds that OWCP properly determined that appellant’s February 11, 2015 

request for a review of the written record, postmarked February 14, 2015, was untimely filed as 

it was mailed more than 30 days after the issuance of OWCP’s September 25, 2014 merit 

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 review of the written record in this case. It determined that a 

review of the written record was unnecessary as the issue could be resolved through the 

submission of evidence in the reconsideration process. Therefore, OWCP properly denied 

appellant’s request for a review of the written record as untimely and properly exercised its 

discretion in denying appellant’s request for a review of the written record as she had other 

review options available. 

 3

 5 U.S.C. § 8124(b)(1). 

4

 20 C.F.R. § 10.615. 

5 Id. at § 10.616(a). 

6 Supra note 1. 

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

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

CONCLUSION 

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

for a review of the written record.9

 

ORDER 

IT IS HEREBY ORDERED THAT the March 31, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 1, 2016 

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 

 9

 Appellant filed a Form CA-2a on July 9, 2015 claiming a recurrence of disability on June 19, 2015 due to 

jamming her right knee in her work vehicle. On August 5, 2015 OWCP informed her that this was a possible 

intervening injury rather than a recurrence of her prior condition. By decision dated September 25, 2015, it denied 

appellant’s claim for recurrence and provided her appeal rights. The Board does not have jurisdiction to review this 

claim in this appeal as OWCP’s decision was issued after the date of appellant’s appeal to the Board, July 28, 2015. 

Appellant should follow the appeal rights attached to the September 25, 2015 merit decision of OWCP if she 

disagrees with this decision.