United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.P., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

EL PASO HEALTH CARE SYSTEM, 

El Paso, TX, Employer 

__________________________________________ 

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Docket No. 16-1203 

Issued: May 23, 2017 

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 May 18, 2016 appellant filed a timely appeal from a December 23, 2015 nonmerit 

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

 As more than 180 days 

elapsed from the last merit decision, dated April 9, 2015, 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 the claim.3

 1

 Appellant timely requested oral argument; however, the Board exercised its discretion and denied her request 

pursuant to 20 C.F.R. § 501.5(a). See Order Denying Request for Oral Argument, Docket No. 16-1203 (issued 

October 21, 2016). 

2

 5 U.S.C. § 8101 et seq. 

3

 The record includes evidence received after the December 23, 2015 decision. As this evidence was not part of 

the record when the Branch of Hearings and Review issued its final decision, the Board is precluded from 

considering it for the first time on appeal. 20 C.F.R. § 501.2(c)(1). 
2

ISSUE 

The issue is whether OWCP properly denied appellant’s request for an oral hearing. 

FACTUAL HISTORY 

On February 10, 2015 appellant, then a 52-year-old licensed vocational nurse, filed a 

traumatic injury claim (Form CA-1) for a leg/knee injury that allegedly occurred on February 5, 

2015 while in the performance of duty.4 She claimed that a wheelchair hit her leg. On Form 

CA-1 appellant’s supervisor indicated that appellant was injured in the performance of duty. 

Appellant continued to work following the February 5, 2015 alleged incident. She submitted 

medical evidence with a diagnosis of left knee effusion and leg contusion. Appellant reported 

that she was placing a folded wheelchair in the back of a car when the wheelchair fell back and 

hit her left knee.5 

On March 2, 2015 OWCP advised appellant of the need for additional factual and 

medical evidence in support of her claim. It also requested additional factual information from 

the employing establishment regarding the location of the alleged injury and whether she was 

performing her assigned duties at the time of the alleged injury. 

In a March 2, 2015 statement, the supervisor indicated that on February 5, 2015 appellant 

was assisting a veteran/patient by putting his wheelchair in his car. She noted that appellant did 

not lift the patient, just the wheelchair. The supervisor stated that appellant was “injured at work 

in the line of her duties....” After the incident/injury, the employing establishment’s safety 

officer reportedly informed the supervisor that helping the veteran in that particular manner was 

not part of appellant’s duties. However, the supervisor explained that such information has not 

previously been communicated to her staff, at least not in the past few years, and it was not part 

of their practice at the Las Cruces outpatient clinic. She further indicated that she had since 

requested a copy of the employing establishment’s standard operating procedures, and the safety 

officer had yet to provide the requested information. The supervisor stated that appellant was 

helping a veteran when she was injured and, as her direct supervisor, that is what she had asked 

of appellant. 

On March 9, 2015 the employing establishment offered appellant a limited-duty 

assignment, which she accepted. 

OWCP also received additional medical evidence regarding appellant’s left knee 

complaints, including March 12, 2015 diagnostic evidence of a small joint effusion. 

 4

 According to Form CA-1, appellant’s official duty station was in El Paso, TX. The alleged injury occurred at 

the employing establishment’s community-based outpatient clinic (CBOC) in Las Cruces, NM. 

5

 The record also includes an unsigned Form CA-1 dated February 18, 2015. On this particular form, “Nurse 

Manager” T.L. represented that appellant was not in the performance of duty at the time of the alleged injury on 

February 5, 2015. He did not challenge the specifics of the alleged incident, but instead noted that placing a 

wheelchair into a patient’s vehicle was not part of appellant’s job description. T.L. further noted that appellant had 

not followed the facility’s policy/procedures, which reportedly prohibited employees from performing any lifting 

unrelated to patient care. 
3

In a March 13, 2015 e-mail/statement, appellant indicated that she was helping an 80-

year-old caregiver and her veteran son place a VA-provided wheelchair in the back seat of their 

automobile. The wheelchair could not fit in the trunk. Appellant indicated that the caregiver 

was unable to lift the wheelchair (35 to 50 pounds) into the car, so appellant placed the folded 

chair in the back seat. She stated that the wheelchair dropped down a little from the back seat 

into the open car door where she was standing, and it came down on the upper part of her knee. 

Appellant then lifted the wheelchair up again and secured it with the seatbelt. She explained that 

she was just trying to help an 80-year-old mother with her veteran son, which was the employing 

establishment policy when asked for assistance. Appellant further explained that part of her 

responsibility as a nurse was to teach patients and/or caregivers how to use a wheelchair (or other 

provided equipment), including how to break it down to place it into a vehicle. 

By decision dated April 9, 2015, OWCP denied appellant’s traumatic injury claim as she 

had failed to establish fact of injury. It noted that the employing establishment’s safety officer 

indicated that helping patients put wheelchairs in their vehicles was not in appellant’s line of 

duty. The claims examiner further noted that the employing establishment controverted the 

claim. 

In an appeal request form dated April 16, 2015, postmarked April 23, 2015 and received 

on April 24, 2015, appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. She submitted a February 6, 2015 employing establishment 

report of contact wherein she explained that on February 5, 2015 at approximately 11:00 a.m., 

she assisted a patient’s mother load a wheelchair into the back seat of her car. Appellant further 

explained that she developed a strain on her left side, lower back, and left leg that evening. She 

noted that she continued to have pain and discomfort from lifting the wheelchair into the car, and 

that she had planned to seek medical attention that day. Appellant also indicated that she had 

reported the incident to her supervisor. 

In an April 21, 2015 statement, appellant’s supervisor confirmed that appellant had been 

injured at work in the line of duty on February 5, 2015. She noted that appellant was showing a 

veteran with a new wheelchair how to load it into his vehicle. The supervisor further stated that 

appellant was within her regular tour of duty and not at lunch when the incident occurred. She 

reiterated that appellant was helping a veteran when she was injured and, as her direct 

supervisor, that is what she asked of appellant. 

On April 24, 2015 OWCP acknowledged receipt of appellant’s hearing request. 

On May 13, 2015 the Branch of Hearings and Review received another appeal request 

form from appellant.6

 Appellant changed her previous request for an oral hearing to a request for 

review of the written record. 

In a May 20, 2015 statement, appellant noted that the safety officer, T.L., was not her 

supervisor. She argued that he switched her original February 10, 2015 CA-1 form for the 

February 18, 2015 CA-1 form. Appellant also argued that her direct nursing supervisor had 

entered the same form on which her handwritten signature was entered. She explained that her 

 6

 The request was postmarked May 7, 2015. 
4

supervisor responded “yes” to question 28 regarding whether the employee was injured in the 

performance of duty, as opposed to T.L. who responded “no.” Appellant requested that OWCP 

use the original “unadulterated form” that her supervisor had signed on February 10, 2015. 

OWCP also received a position description and an undated statement from a coworker. 

The coworker confirmed that appellant’s activities of assisting the veteran was part of their work 

duties. 

In a letter dated November 2, 2015, OWCP advised appellant that a telephonic hearing 

was scheduled for December 8, 2015 at 11:15 a.m. (Eastern Standard Time). It provided her 

with a toll-free number and passcode for the call. 

In a December 23, 2015 decision, the hearing representative found that appellant had 

abandoned her request for a hearing, which had been scheduled for December 8, 2015. 

Appellant failed to appear at the designated time and place and, according to the hearing 

representative, there was no indication in the file that she had contacted OWCP either before or 

after the scheduled hearing explaining her failure to appear. 

LEGAL PRECEDENT 

A claimant dissatisfied with a decision on his or her claim is entitled, upon timely 

request, to a hearing before an OWCP representative.7 The claimant may request either an oral 

hearing or a review of the written record.8 Unless otherwise directed in writing by the claimant, 

OWCP’s hearing representative will mail a notice of the time and place of the oral hearing to the 

claimant and any representative at least 30 days before the scheduled date.9 A claimant who fails 

to appear at a scheduled hearing may request in writing within 10 days after the date of the 

hearing that another hearing be scheduled.10 Where good cause for failure to appear is shown, 

another hearing will be scheduled and conducted by teleconference.11 The claimant’s failure to 

request another hearing within 10 days shall constitute abandonment of the hearing request.12

Once an oral hearing is scheduled and OWCP’s hearing representative has mailed 

appropriate written notice to the claimant and representative, OWCP will, upon submission of 

proper written documentation of unavoidable serious scheduling conflicts (such as court-ordered 

appearances/trials, jury duty, or previously scheduled outpatient procedures), entertain requests 

from a claimant or his or her representative for rescheduling as long as the hearing can be 

rescheduled on the same monthly docket, generally no more than seven days after the originally 

 7

 5 U.S.C. § 8124(b); 20 C.F.R. § 10.616(a). 

8

 20 C.F.R. § 10.615. 

9 Id. at § 10.617(b).

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

2.1601.6g (October 2011). 

11 Id.

12 Id.
5

scheduled time. In these instances, rescheduled hearings will usually be held via teleconference, 

and the hearing representative will ensure that the file accurately reflects any action taken to 

reschedule the hearing. When a request to postpone a scheduled hearing cannot be 

accommodated on the docket, no further opportunity for an oral hearing will be provided. 

Instead, the hearing will take the form of a review of the written record and a decision issued 

accordingly.13 

ANALYSIS 

On an April 16, 2015 appeal request form appellant initially requested an oral hearing 

with respect to OWCP’s April 9, 2015 decision. OWCP received her request on April 24, 2015, 

and sent an acknowledgment letter that same day. On May 13, 2015 it received another appeal 

request form from appellant. Instead of the previously requested oral hearing, appellant 

requested rather a review of the written record. OWCP did not acknowledge receipt of 

appellant’s latest appeal request form. 

By letter dated November 2, 2015, OWCP advised appellant that the requested “oral 

hearing” would be conducted by telephone on December 8, 2015. It provided additional 

instructions on how and when to call in, including the toll-free access number and pass code. 

Appellant did not participate in the scheduled December 8, 2015 hearing, nor is there any 

indication from the record that she contacted OWCP between November 2 and December 23, 

2015, when OWCP issued its decision finding that appellant abandoned her hearing request. 

Once a request for a hearing has been received, the claimant may request a change in the 

format from a hearing to a review of the written record by making a written request to the Branch 

of Hearings and Review.14 OWCP will grant a request received by the Branch of Hearings and 

Review within 30 days of: (1) the date OWCP acknowledges the initial hearing request; or 

(2) the date OWCP issues a notice setting a date for an oral hearing, in cases where the initial 

request was for, or was treated as a request for, an oral hearing.15 A request received beyond the 

above-noted time frames will be subject to OWCP’s discretion.16 The decision to grant or deny a 

change of format from a hearing to a review of the written record is not reviewable.17 

The Board finds that appellant did not abandon her request for a hearing, as the record 

reveals that she timely changed her request from an oral hearing to a review of the written 

record. On May 13, 2015 OWCP received appellant’s request for a review of the written record, 

which was within 30 days of its April 24, 2015 acknowledgment of appellant’s initial hearing 

 13 20 C.F.R. § 10.622(c). 

14 Id. at § 10.616(b). 

15 Id. 

16 Id. 

17 Id. 
6

request.18 This was, therefore, a timely request. As it did not conduct a review of the written 

record, the case must be remanded for a merit review and a de novo decision. 

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s request for an oral hearing. 

ORDER 

IT IS HEREBY ORDERED THAT the December 23, 2015 decision of the Office of 

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

consistent with this decision. 

Issued: May 23, 2017 

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 

 18 The subsequent request for a review of the written record was also timely with respect to OWCP’s April 9, 

2015 merit decision.