United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.B., Appellant 

and 

DEFENSE AGENCIES, DLA DISTRIBUTION 

REGION EAST, Fort Belvoir, VA, Employer 

__________________________________________ 

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Docket No. 16-1302 

Issued: March 7, 2017 

Appearances: Case Submitted on the Record

Robert Boutselis, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On June 6, 2016 appellant, through his representative, filed a timely appeal from a 

February 1, 2016 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).2

 As more than 180 days elapsed from the last merit decision, dated November 24, 

2015 to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3

 (FECA) 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 The Board notes that appellant submitted additional evidence after OWCP rendered its February 1, 2016 

decision. The Board’s jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the time 

of its final decision. Therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. §510.2(c)(1); 

Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). 

3

 5 U.S.C. § 8101 et seq.
2

and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this 

case.

4

ISSUE 

The issue is whether OWCP abused its discretion in denying appellant’s request for an 

oral hearing as untimely filed. 

FACTUAL HISTORY 

This case has previously been before the Board.5

 The facts and circumstances outlined in 

the Board’s prior decision are incorporated herein by reference. The relevant facts follow. 

On April 10, 2013 appellant, then a 32-year-old distribution process worker, filed a 

traumatic injury claim (Form CA-1) alleging that on March 29, 2013 he sustained a right 

Achilles strain while participating in an employing establishment wellness program at an 

employing establishment fitness center. By decision dated November 26, 2013, OWCP denied 

appellant’s claim finding that the evidence of record failed to demonstrate an injury on 

March 29, 2013 in the performance of duty as alleged. It indicated that appellant was not 

performing regular duties or activities incidental to his job and had failed to provide 

documentation reflecting authorization to participate in the employing establishment’s optional 

Wellness/Fitness Program. Appellant appealed to the Board on May 9, 2014. By decision dated 

July 27, 2015, the Board remanded the case for further development of the factual evidence with 

regard to whether appellant was authorized to participate in the Wellness/Fitness Program at the 

time of his injury on March 29, 2013. 

By decision dated November 24, 2015, OWCP denied appellant’s claim, finding that the 

evidence of record failed to demonstrate that he sustained an injury in the performance of duty. 

It noted that appellant had not established that his injury arose during the course of employment 

and within the scope of compensable work factors. The November 24, 2015 decision was 

addressed to appellant’s address of record. His representative was copied on the decision.6

 

On December 8, 2015 the U.S. Post Office returned OWCP’s November 24, 2015 

decision as undeliverable.7

 A handwritten note on the envelope reflected that the November 24, 

2015 decision was resent by certified mail receipt number 7014 2120 0000 4050 5977 on 

December 8, 2015. 

 4

 Appellant, through his representative, submitted a timely request for oral argument. By order dated February 9, 

2017, the Board exercised its discretion and denied appellant’s request for oral argument as the Board does not have 

jurisdiction over the merits of this case and the arguments on appeal can adequately be addressed in a decision based 

on the case record. Order Denying Request for Oral Argument, Docket No. 16-1302 (issued February 9, 2017). 

5

 Docket No. 14-1265 (issued July 27, 2015). 

6

 On April 23, 2013 appellant authorized Robert Boutselis to serve as his authorized representative. 

7 C.C., Docket No. 14-745 (issued July 29, 2014). 
3

In an appeal request form dated January 4, 2016, appellant requested an oral hearing 

before OWCP’s Branch of Hearings and Review. He reported a new address in the same city. 

The appeal was postmarked on January 8 and received by OWCP on January 12, 2016. 

By decision dated February 1, 2016, OWCP’s Branch of Hearings and Review denied 

appellant’s request for an oral hearing finding that his request had not been filed within 30 days 

of the November 24, 2015 decision. The Branch of Hearings and Review further determined that 

the issue in the case could equally well be addressed by requesting reconsideration from OWCP 

and submitting evidence not previously considered. The February 1, 2016 decision was 

addressed to the previous address of record. Appellant’s representative was not copied on that 

decision. 

LEGAL PRECEDENT 

Section 8124(b)(1) of FECA provides that before review under section 8128(a) of this 

title, 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.8

 Section 10.615 of the federal 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.9 OWCP regulations provide that the request must be 

sent within 30 days of the date of the decision for which a hearing is sought, as determined by 

postmark or other carrier’s date marking, and also that the claimant must not have previously 

submitted a reconsideration request (whether or not it was granted) on the same decision.10 

20 C.F.R. § 10.127 provides that a copy of the decision shall be mailed to the employee’s 

last known address. If the employee has a designated representative before OWCP, a copy of the 

decision shall also be mailed to the representative.11 A copy of the decision shall also be sent to 

the employing establishment. 

ANALYSIS 

The Board has considered the matter and finds that the February 1, 2016 Branch of 

Hearings and Review’s decision must be set aside. 

By decision dated November 24, 2015, OWCP denied appellant’s traumatic injury claim, 

finding that the evidence of record failed to demonstrate that he sustained an injury in the 

performance of duty. Appellant’s representative was copied on the decision. 

 8

 5 U.S.C. § 8124(b)(1). 

9

 20 C.F.R. § 10.615. 

10 Id. at § 10.616(a). 

11 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Representatives’ Services, Chapter 2.1200.3(b)(2) 

(June 2012). 
4

In an appeal request form dated January 4, 2016 and postmarked January 8, 2016, 

appellant requested an oral hearing before OWCP’s Branch of Hearings and Review. He 

recorded a new address. 

By decision dated February 1, 2016, the Branch of Hearings and Review denied 

appellant’s request for an oral hearing, finding that the request was not made within 30 days of 

the November 24, 2015 decision. This decision was sent to appellant’s former address. 

Appellant’s representative was not copied on that decision. 

The record shows that appellant had advised OWCP of the name and address of his 

designated representative who had been acknowledged by OWCP and copied on prior decisions. 

However, OWCP’s Branch of Hearings and Review failed to send a copy of the February 1, 

2016 decision to the authorized representative. 

OWCP’s regulations and Board case law require OWCP to send a copy of its decisions to 

the employee’s last known address and to the authorized representative.12 The Board has held 

that decisions under FECA13 are not properly issued unless both appellant and the authorized 

representative have been sent copies of the decision.14 As the February 1, 2016 decision was not 

sent to appellant’s representative, and was not mailed to his updated address of record, the Board 

finds that the decision was not properly issued.15 The presumption of receipt does not apply 

where a notice is sent to an incorrect address.16 

For the reasons noted above, the Board finds that the February 1, 2016 decision was not 

properly issued.17 The Board will set aside the decision and remand the case for an appropriate 

and properly issued merit decision on the relevant issues.18 

 12 20 C.F.R. § 10.127 provides: a copy of the decision shall be mailed to the employee’s last known address. If 

the employee has a designated representative before OWCP, a copy of the decision will also be mailed to the 

representative. See also M.R., Docket No. 11-632 (issued September 28, 2011). In George R. Bryant, Docket No. 

03-2241 (issued April 19, 2005), the Board found that OWCP did not properly issue its June 18, 2003 decision when 

it did not send a copy of that decision to the authorized representative on that date; OWCP conceded a procedural 

error and advised that a merit review would be provided on remand to preserve appellant’s rights. In James 

Consentino, Docket No. 04-1774 (issued October 21, 2004), the Board found that OWCP improperly issued a 

decision terminating compensation because it did not mail the decision to appellant’s representative and declared the 

termination decision null and void. Although OWCP subsequently denied modification of the termination, the 

Board found that the merit reviews did not resuscitate the termination as OWCP had prejudiced appellant by 

denying his representative the opportunity to assist in post-deprivation remedies, including a timely hearing under 5 

U.S.C. § 8124. 

13 Supra note 3.

14 See R.J., Docket No. 12-174 (issued June 25, 2012); Travis L. Chambers, 55 ECAB 138 (2003). 

15 See Clara T. Norga, 46 ECAB 473 (1995); W.A., Docket No. 06-1452 (issued November 27, 2006). 

16 R.W., Docket No. 15-1886 (issued February 4, 2016). 

17 W.S., Docket No. 14-842 (issued July 29, 2014). 

18 George R. Bryant, Docket No. 03-2241, (issued April 19, 2005). 
5

CONCLUSION 

The Board finds that this case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the February 1, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action 

consistent with this decision of the Board. 

Issued: March 7, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board