United States Department of Labor

Employees’ Compensation Appeals Board

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W.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Fremont, CA, Employer

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Docket No. 17-1538

Issued: November 15, 2017

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 6, 2017 appellant filed a timely appeal from a June 1, 2017 nonmerit decision of 

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

November 8, 2016, the date of the most recent OWCP merit decision, 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 before a representative of the Branch of Hearings and Review as untimely filed 

pursuant to 5 U.S.C. § 8124.

 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On September 8, 2016 appellant, then a 29-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) asserting that on September 6, 2016 he lifted and moved packages, causing a 

chest wall and rib muscle strain. He was off work from September 6 to 9, 2016. In a

September 9, 2016 letter, appellant alleged that he injured the left side of his rib cage on

September 4, 2016 while delivering a heavy package to the second floor of a house. 

The employing establishment controverted the claim, contending in a September 12, 

2016 letter that appellant had provided a conflicting account of events. It asserted that he

reported an injury to his left side on September 6, 2016, complaining of shortness of breath and 

chest discomfort. Appellant was taken by ambulance to an emergency room, treated, and 

released. 

In a September 6, 2016 report, Dr. Hillary Anne Bassett, Board-certified in emergency 

medicine, held appellant off work from September 6 to 8, 2016. 

Dr. Alan Hsu, an attending physician Board-certified in occupational medicine and 

family practice, submitted a September 8, 2016 report diagnosing chest wall and rib muscle 

strains, sustained on September 5, 2016 while lifting many heavy packages at work. He 

prescribed physical therapy. Dr. Hsu submitted progress notes through September 21, 2016 

noting gradual improvement in appellant’s symptoms with physical therapy. 

In an October 3, 2016 letter, OWCP notified appellant of the additional evidence needed 

to establish his claim, including a detailed description of the September 6, 2016 incident, and his 

physician’s opinion explaining how that incident would cause the claimed left chest wall and rib 

muscle strain. It afforded him 30 days to submit such evidence. 

In response, appellant submitted September 30 and October 21, 2016 chart notes from

Dr. Hsu, noting that physical therapy was successful in reducing appellant’s symptoms. 

By decision dated November 8, 2016, OWCP denied appellant’s claim, finding that fact 

of injury had not been established. It found that he submitted insufficient evidence to establish 

that the claimed September 6, 2016 incident occurred at the time, place, and in the manner 

alleged. OWCP noted that appellant variously asserted that the causative incident occurred on 

September 4, 5, and 6, 2016. 

In an appeal request form dated May 2, 2017 and postmarked May 9, 2017, appellant 

requested a review of the written record by a representative of OWCP’s Branch of Hearings and 

Review. He submitted a factual statement regarding a September 5, 2016 incident. 

By decision dated June 1, 2017, OWCP’s Branch of Hearings and Review denied 

appellant’s request for a review of the written record as a matter of right as it was untimely filed. 

It noted that OWCP had issued its decision on November 8, 2016, while his request was 

postmarked May 9, 2017. The Branch of Hearings and Review found that appellant’s request 

was submitted more than 30 days after OWCP’s merit decision. After exercising its discretion, it 

further found that the issue in the case could equally well be addressed through the 

reconsideration process. 
3

LEGAL PRECEDENT

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

OWCP hearing representative, provide: 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 or her claim before a representative of the Secretary.2 A hearing is a 

review of an adverse decision by an OWCP’s 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.5

OWCP has discretion to grant or deny a request that is made after the 30-day period for 

requesting a hearing. In such a case, it will determine whether to grant a discretionary hearing 

and, if not, will so advise the claimant with reasons.6

ANALYSIS

The Board lacks jurisdiction to review the merits of the underlying issue of whether 

appellant sustained a traumatic injury in the performance of duty. The Board’s jurisdiction is 

strictly limited to determining whether OWCP properly denied his request for a review of the 

written record.

By decision dated November 8, 2016, OWCP denied appellant’s traumatic injury claim. 

In an appeal request form dated May 2, 2017 and postmarked May 9, 2017, appellant requested a 

review of the written record. A request for a review of the written record must, as noted above, 

be made within 30 days after the date of the issuance of OWCP’s final decision. The Board 

finds that OWCP properly determined, in its June 1, 2017 decision, that appellant’s request for a 

review of the written record was untimely as it was filed more than 30 days after the issuance of 

OWCP’s November 8, 2016 decision. 

The Board further finds that OWCP properly exercised its discretion in denying 

appellant’s request for a review of the written record by determining that the issue in the case 

could be addressed equally as well by requesting reconsideration and submitting new evidence

 

2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. § 10.615.

4

James Smith, 53 ECAB 188 (2001); id., at § 10.616(a).

5

See R.T., Docket No. 08-0408 (issued December 16, 2008).

6 G.W., Docket No. 10-0782 (issued April 23, 2010).
4

relevant to the issue at hand.7 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.8 In this case, the evidence of 

record does not indicate that OWCP abused its discretion in denying appellant’s request for a 

review of the written record under these circumstances. Accordingly, the Board finds that 

OWCP properly denied appellant’s request for a review of the written record.

On appeal appellant contends that the medical evidence of record is sufficient to establish 

his claim. This argument pertains to the merits of the claim, which are not before the Board on 

the present appeal. 

CONCLUSION

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

written record before a representative of the Branch of Hearings and Review as untimely filed 

under 5 U.S.C. § 8124(b).

 

7 D.P., Docket No. 14-0308 (issued April 21, 2014); D.J., Docket No. 12-1332 (issued June 21, 2013); Mary B. 

Moss, 40 ECAB 640, 647 (1989).

8

See R.G., Docket No. 16-0994 (issued September 9, 2016); Teresa M. Valle, 57 ECAB 542 (2006); Daniel J. 

Perea, 42 ECAB 214 (1990).
5

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’

Compensation Programs dated June 1, 2017 is affirmed.

Issued: November 15, 2017

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