United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Uniontown, OH, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0948 

Issued: September 13, 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 April 4, 2016 appellant filed a timely appeal from a December 18, 2015 nonmerit 

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

elapsed since the last merit decision dated April 7, 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.2

ISSUE 

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

written record as untimely under 5 U.S.C. § 8124(b). 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final 

decision. Appellant submitted new medical evidence with her appeal. The Board has no jurisdiction to review this 

new evidence on appeal; see 20 C.F.R. § 501.2(c)(1). See Steven S. Saleh, 55 ECAB 169 (2003). 
2

FACTUAL HISTORY 

On January 15, 2015 appellant, then a 49-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on January 15, 2015 she sustained a headache, sore back, and 

sore neck after being rear ended by a vehicle. Appellant did not stop work. 

In a January 15, 2015 report, Dr. Ronald Weisel, a chiropractor, advised that appellant 

sustained a work injury when she was rear ended while driving a postal vehicle. He assessed 

cervical, thoracic, and lumbar strain/sprain and noted that appellant’s description of the injury 

was consistent with the clinical findings. 

By letter dated March 4, 2015, OWCP notified appellant that the evidence of record was 

insufficient to establish her claim. Appellant was advised to submit medical evidence from her 

attending physician with a diagnosis and an opinion on causal relationship supported by medical 

rationale. OWCP also noted that chiropractors were only considered physicians under FECA if 

they diagnosed spinal subluxation as demonstrated by x-ray to exist. 

By decision dated April 7, 2015, OWCP found that the January 15, 2015 incident 

occurred, but denied appellant’s claim for failure to establish the medical component of fact of 

injury. It noted that the medical evidence of record was from a chiropractor and that he was not 

considered a physician under FECA as he had not diagnosed spinal subluxation as demonstrated 

by an x-ray. 

On August 10, 2015 appellant submitted a request for review of the written record by a 

hearing representative of OWCP’s Branch of Hearings and Review, which it received on 

August 17, 2015. She submitted additional chiropractic reports from Dr. Weisel. 

By decision dated December 18, 2015, OWCP denied appellant’s request for review of 

the written record as untimely. It exercised its discretion and further denied the request for the 

reason that the relevant issue of the case could be addressed by requesting reconsideration and 

submitting evidence not previously considered by OWCP. 

On appeal appellant argues that she was unaware that she had to see her primary care 

physician. She contends that she did not know the protocol for filing a claim and that she was 

not made aware of the protocol. 

LEGAL PRECEDENT 

Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title 

[relating to reconsideration], 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 or her claim before a representative of the 

Secretary.”3 

 3

 5 U.S.C. § 8124(b)(1). 
3

Section 10.615 of Title 20 of the Code of Federal Regulations provides that a hearing is a 

review of an adverse decision by a hearing representative. Initially, the claimant can choose 

between two formats: an oral hearing or a review of the written record.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.5 OWCP has discretion, however, to grant or 

deny a request that is made after this 30-day period.6 In such a case, it will determine whether to 

grant a discretionary hearing or review of the written record and, if not, will so advise the 

claimant with reasons.7

 

ANALYSIS 

The Board finds that OWCP properly determined that appellant’s August 10, 2015 

request for review of the written record received on August 17, 2015 was untimely filed. 

Appellant’s request was made more than 30 days after the issuance of the April 7, 2015 decision. 

Section 8124(b)(1) is unequivocal on the time limitation for requesting a hearing.8

 For this 

reason, OWCP properly denied her request as a matter of right. 

OWCP proceeded to exercise its discretion in accordance with Board precedent to 

determine whether to grant review of the written record in this case. It denied appellant’s request 

as any issues could be equally well addressed in her case by submitting evidence not previously 

considered by OWCP and requesting reconsideration. Because reconsideration exists as an 

alternative appeal right to address the issues raised by OWCP’s April 7, 2015 decision, the Board 

finds that OWCP did not abuse its discretion in denying appellant’s untimely request for review 

of the written record.9

On appeal appellant argues that she was unaware of the protocol for filing a claim and 

unaware that she had to submit a medical report from her primary care physician. As explained, 

the Board does not have jurisdiction over the merits of the claim. 

CONCLUSION 

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

record as untimely. 

 4

 20 CFR § 10.615. 

5 Id. at § 10.616. 

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

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

8 See William F. Osborne, 46 ECAB 198 (1994). 

9 See Gerard F. Workinger, 56 ECAB 259 (2005). 
4

ORDER 

IT IS HEREBY ORDERED THAT the December 18, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 13, 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