United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.M., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMNISTRATION MEDICAL 

CENTER, Houston, TX, Employer 

__________________________________________ 

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Docket No. 16-1374 

Issued: December 8, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 22, 2016 appellant filed a timely appeal from a February 1, 2016 nonmerit 

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

elapsed from the last merit decision dated December 3, 2015 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 over the merits of this case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for a review of the 

written record as untimely filed pursuant to 5 U.S.C. § 8124. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On October 20, 2015 appellant, then a 35-year-old nursing assistant, filed an occupational 

disease claim (Form CA-2) alleging that she sustained clostridium difficile colitis in the 

performance of duty on or before August 2, 2015. She described diarrhea, nausea, vomiting, 

profuse sweating, and generalized weakness. Appellant stopped work on or about August 15, 

2015, and first reported the condition on October 20, 2015. 

By letter dated October 26, 2015, OWCP advised appellant of the evidence needed to 

establish her claim, including a detailed statement identifying the work factors she believed 

caused the claimed condition and a report from her attending physician explaining how and why 

those factors would have resulted in her contracting clostridium difficile. It afforded her 30 days 

to submit such evidence. 

In response, appellant provided a position description describing her assigned duties of 

collecting fecal samples, catheter and personal hygiene assistance, and colostomy care. 

In a November 13, 2015 letter, the employing establishment controverted the claim as 

appellant did not identify the work factors she believed caused the claimed condition, nor did she 

provide medical evidence diagnosing clostridium difficile infection. 

By decision dated December 3, 2015, OWCP denied the claim, finding that fact of injury 

had not been established. It found that appellant had not provided sufficient information to 

identify or corroborate the specific work factors alleged to have caused her condition. 

In a letter postmarked January 8, 2016, appellant requested a review of the written record 

before a representative of OWCP’s Branch of Hearings and Review. She asserted that she was 

diagnosed with clostridium difficile on August 16, 2015 when she sought care in a hospital 

emergency room. Appellant described significant weight loss, nausea, abdominal pain, 

weakness, and profuse sweating. She submitted additional medical evidence. 

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

appellant’s request, finding that her hearing request was not timely filed within 30 days of 

OWCP’s December 3, 2015 decision. OWCP exercised its discretion and performed a limited 

review of the evidence following the December 3, 2015 decision. It further denied the request as 

the issue in the case could be addressed equally well by submitting new, relevant evidence or 

argument accompanying a valid request for reconsideration. 

LEGAL PRECEDENT 

Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an 

OWCP hearing representative, states: Before review under section 8128(a) of this title, a 

claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of 

this section is entitled, on request made within 30 days after the date of the issuance of the 

decision, to a hearing on his claim before a representative of the Secretary.2

 A hearing is a 

 2

 5 U.S.C. § 8124(b)(1). 
3

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. In addition to the 

evidence of record, the claimant may submit new evidence to the hearing representative.3

 A 

request for either an oral hearing or a review of the written record must be sent, in writing, within 

30 days of the date of the decision for which the hearing is sought.4 A claimant is not entitled to 

a hearing or a review of the written record if the request is not made within 30 days of the date of 

the decision. 

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.5 OWCP procedures, which require OWCP to exercise its discretion 

to grant or deny a hearing when the request is untimely or made after reconsideration, are a 

proper interpretation of FECA and Board precedent.6

 

ANALYSIS 

OWCP denied appellant’s occupational disease claim by decision issued December 3, 

2015, finding that she had not established fact of injury as she had not identified the specific 

work factors or incidents that she believed caused the claimed infection. Appellant requested a 

review of the written record by letter postmarked January 8, 2016. As her request was made 

more than 30 days after the date of issuance of OWCP’s December 3, 2015 merit decision, 

OWCP properly found in its February 1, 2016 decision that appellant had not timely requested 

review of the written record.7

 

OWCP then properly exercised its discretion by stating that it had considered the matter 

and had denied appellant’s request for a review of the written record because the occupational 

disease claim issue could be addressed through a request for reconsideration.8 The Board has 

held that the only limitation on OWCP’s authority is reasonableness and an 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 deduction from established facts.9 In 

this case, the evidence of record does not indicate that OWCP abused its discretion in its denial 

 3

 20 C.F.R. § 10.615. 

4 James Smith, 53 ECAB 188 (2001); 20 C.F.R. § 10.616(a). 

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

6 Teresa M. Valle, 57 ECAB 542 (2006). 

7

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

2.1601.4(a) (October 2011). 

8 M.H., Docket No. 15-0774 (issued June 19, 2015). 

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

of appellant’s request for an oral hearing. Accordingly, the Board finds that OWCP properly 

denied her request.10 

On appeal, appellant asserts that the employing establishment did not take her illness 

seriously, leading to a delay in diagnosis. She notes that she won employee awards for 

excellence and had a successful career. Appellant indicates that she remains unemployed, and 

describes financial hardships from frequent flare-ups of gastrointestinal systems. As noted, the 

Board does not have jurisdiction over the merits of the case. Furthermore, these arguments are 

not otherwise relevant to the denial of appellant’s request for a review of the written record. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for a review of the 

written record as untimely filed pursuant to 5 U.S.C. § 8124. 

ORDER 

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

Workers’ Compensation Programs is affirmed. 

Issued: December 8, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 10 D.P., Docket No. 14-308 (issued April 21, 2014); D.J., Docket No. 12-1332 (issued June 21, 2013).