United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

New York, NY, Employer 

__________________________________________ 

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Docket No. 16-0781 

Issued: November 3, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 7, 2016 appellant filed a timely appeal from a February 1, 2016 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 As more than 180 days 

elapsed from the last merit decision on April 5, 2010 to the filing of this appeal, pursuant to the 

Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

lacks jurisdiction over the merits of this claim.3

 

 1

 Appellant filed a timely request for oral argument pursuant to 20 C.F.R. § 501.5(b). After exercising its 

discretion pursuant to 20 C.F.R. § 501.5(a) the Board, by an October 24, 2016 order, denied appellant’s request 

because it does not have jurisdiction over the merits of the case and the arguments on appeal can be adequately 

addressed in a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket 

No. 16-0781 (issued October 24, 2016). 

2

 5 U.S.C. § 8101 et seq.

3

 The Board notes that appellant submitted additional evidence following the February 1, 2016 decision. Since 

the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the 

Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 

ECAB 126 (2005). 
2

ISSUE 

The issue is whether OWCP properly denied appellant’s request for a hearing before the 

Branch of Hearings and Review. 

FACTUAL HISTORY 

On October 23, 2009 appellant, then a 49-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on October 17, 2009 she was involved in a physical altercation 

with a coworker and sustained injuries to her head and left leg.4

 She stated that C.T., a 

coworker, assaulted her and she defended herself. Appellant stopped work. 

OWCP received various statements from appellant describing the alleged October 17, 

2009 incident and the mistreatment she received from her manager. It also received a 

controversion letter and investigation memorandum from the employing establishment, a Zero 

Tolerance Workplace Violence Policy bulletin, and various medical records dated October 19 

to 30, 2009. 

By letter dated November 3, 2009, OWCP advised appellant of the additional factual and 

medical evidence needed to establish her claim. 

Appellant submitted various statements regarding the incident and her disagreements 

with management, a request for temporary schedule change, letters from the employing 

establishment regarding disciplinary action for failure to follow instructions and a removal 

notice, and general information regarding filing a complaint with the Equal Employment 

Opportunity Commission (EEOC). She also provided a certification of health care provider for 

employee’s serious health condition dated October 30, 2009, medical reports dated September 2 

to November 16, 2009, and hospital emergency room records dated October 20 and 28, 2009. 

By decision dated December 4, 2009, OWCP denied appellant’s claim finding that she 

had failed to establish fact of injury. It determined that the factual evidence failed to substantiate 

that the October 17, 2009 incident had occurred as alleged. 

On December 29, 2009 OWCP received an appeal request form dated December 22, 

2009 requesting a review of the written record before the Branch of Hearings and Review. It 

also received a December 5, 2009 emergency room report and medical reports dated December 5 

to 16, 2009. 

Appellant resubmitted hospital records dated October 20 and 28, 2009, medical reports 

dated September 2 to November 16, 2009, her original traumatic injury claim form, disciplinary 

letters from the employing establishment, and various statements. 

By decision dated April 5, 2010, an OWCP hearing representative affirmed the denial of 

appellant’s traumatic injury claim. 

 4

 The record reveals that appellant has three previous claims under File Nos. xxxxxx363, xxxxxx024, and 

xxxxxx177. 
3

On January 6, 2016 appellant requested an oral hearing. 

By decision dated February 1, 2016, OWCP denied appellant’s request for an oral 

hearing. It determined that she was not entitled to an oral hearing as a matter of right as she had 

previously requested a review of the written record and a decision on review of the written 

record had been issued on April 5, 2010. OWCP exercised its discretion and denied appellant’s 

request for a hearing as it found that the issue involved in the case could be addressed equally 

well on reconsideration by submitting evidence which established that she sustained an injury in 

the performance of duty. 

LEGAL PRECEDENT 

Any claimant dissatisfied with an OWCP decision shall be afforded an opportunity for 

either an oral hearing or a review of the written record.5

 A request for a hearing or review of the 

written record must be submitted, in writing, within 30 days of the date of the decision for which 

a hearing is sought.6

 If the request is not made within 30 days, a claimant is not entitled to a 

hearing or a review of the written record as a matter of right. OWCP regulations further provide 

that the claimant must have not previously submitted a reconsideration request (whether or not it 

was granted) on the same decision.7 Although a claimant who has previously sought 

reconsideration is not, as a matter of right, entitled to a hearing or review of the written record, 

the Branch of Hearings and Review may exercise its discretion to either grant or deny a hearing 

following reconsideration.8 Similarly, the Branch of Hearings and Review may exercise its 

discretion to conduct a hearing or review the written record where a claimant requests a second 

hearing or review on the written record on the same issue.9

ANALYSIS 

By decision dated December 4, 2009, OWCP denied appellant’s claim because she failed 

to establish fact of injury. Appellant requested a review of the written record before the Branch 

of Hearings and Review. By decision dated April 5, 2010, an OWCP hearing representative 

affirmed the denial of her claim. 

On January 6, 2016 OWCP received an appeal request form requesting a hearing before 

the Branch of Hearings and Review regarding the April 5, 2010 decision. By decision dated 

February 1, 2016, an OWCP hearing representative determined that appellant was not entitled to 

a hearing as a matter of right as she had previously requested and received a review of the 

written record by the Branch of Hearings and Review hearing representative. The Board 

 5

 5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.615. 

6 Id. at 10.616(a). 

7 Id. 

8 D.E., 59 ECAB 438 (2008); Hubert Jones, Jr., 57 ECAB 467 (2006). 

9 Supra note 3. 
4

concludes that appellant was not entitled to a hearing as a matter of right as she had previously 

requested and received a review of the written record by an OWCP hearing representative.10

In the February 1, 2016 decision, OWCP further exercised its discretion by determining 

that the issue in the case could be addressed equally well by requesting reconsideration and 

submitting new evidence relevant to the issue at hand.11 The Board has held that the only 

limitation on OWCP’s discretionary authority is reasonableness. An abuse of discretion is 

generally shown through proof of manifest error, a clearly unreasonable exercise of judgment, or 

actions taken which are contrary to logic and probable deduction from established facts.12 The 

Board finds that there is no evidence in the current case to establish that OWCP abused its 

discretion in denying appellant’s request for a hearing under these circumstances.13 Accordingly, 

OWCP acted properly in denying her January 6, 2016 request for a hearing. 

On appeal, appellant described the October 17, 2009 employment incident and alleged 

her manager’s misconduct. As these arguments pertain to the merits of the claim, which are not 

before the Board on the present appeal, the Board lacks jurisdiction to review them. As appellant 

has not demonstrated that OWCP abused its discretion in denying her January 6, 2016 request for 

a hearing, the Board affirms the February 1, 2016 denial decision. 

CONCLUSION 

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

 10 20 C.F.R. § 10.616(a). 

11 Hubert Jones, Jr., supra note 8; Sandra F. Powell, 45 ECAB 877 (1994). 

12 See M.C., Docket No. 09-2314 (issued August 20, 2010); Claudia Vazquez, 52 ECAB 496 (2001). 

13 See L.O., Docket No. 15-1346 (issued November 17, 2015). 
5

ORDER 

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

Workers’ Compensation Programs is affirmed. 

Issued: November 3, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board