United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.K., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, North Houston, TX, 

Employer

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Docket No. 17-1265

Issued: August 16, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 22, 2017 appellant filed a timely appeal from a March 2, 2017 nonmerit decision 

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

the last merit decision, dated July 27, 2016, 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 an oral hearing as 

untimely filed.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On April 1, 2014 appellant, then a 61-year-old building equipment mechanic, filed a

traumatic injury claim (Form CA-1), alleging that on March 31, 2014, the dock door opener/closer 

fell on his hand, fracturing his right thumb. OWCP accepted his claim for right open phalanx or 

phalanges and right open fracture of the neck of the metacarpal bone. Appellant underwent three 

OWCP-approved right thumb/hand surgical procedures, the most recent of which occurred on 

April 14, 2015. OWCP also paid his wage-loss compensation for periods of temporary total 

disability. Following his latest surgery, appellant resumed full-time work without restrictions,

effective June 30, 2015.2

On February 16, 2016 appellant filed a claim for a schedule award (Form CA-7). 

In an October 26, 2015 report, Dr. Benjamin Agana, a Board-certified physiatrist, opined 

that appellant sustained three percent permanent impairment of the right upper extremity under the 

sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides).3

In a February 3, 2016 report, Dr. Raymond K. Glass, a chiropractor, determined that 

appellant’s right thumb range of motion (ROM) deficit(s) represented 37 percent permanent

impairment of the thumb/digit or 15 percent permanent impairment of the hand.

In a May 12, 2016 report, OWCP’s district medical adviser concurred with Dr. Agana’s 

rating of three percent permanent impairment of the right upper extremity.

By decision dated July 27, 2016, OWCP granted appellant a schedule award for three

percent permanent impairment of the right upper extremity. The award covered a period of 9.36 

weeks from October 26 to December 30, 2015.

By appeal request form dated and postmarked August 29, 2016, appellant requested an oral 

hearing before an OWCP hearing representative. OWCP subsequently received another copy of

Dr. Glass’ February 3, 2016 impairment rating.

By decision dated March 2, 2017, OWCP’s hearing representative denied appellant’s 

request for an oral hearing, finding that the request was untimely filed. He informed appellant that 

his case had been considered in relation to the issues involved, but that the request was further 

denied because the issues in this case could equally be addressed by requesting reconsideration 

from OWCP and submitting evidence not previously considered.

LEGAL PRECEDENT

Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with 

a decision of the Secretary ... is entitled, on request made within 30 days after the date of the 

 

2 Appellant’s surgeon, Dr. Munir A. Shah, a Board-certified orthopedic and hand surgeon, indicated that he had 

reached maximum medical improvement (MMI) as of June 29, 2015.

3 A.M.A., Guides (6th ed. 2009).
3

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

4

 

Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provides 

that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a 

representative of the Secretary.5 A claimant is entitled to a hearing or review of the written record 

as a matter of right only if the request is filed within the requisite 30 days as determined by the 

postmark or other carrier’s date marking and before the claimant has requested reconsideration.6 

Although there is no right to a review of the written record or an oral hearing if not requested 

within the 30-day time period, OWCP may, within its discretionary powers, grant or deny 

appellant’s request and must exercise its discretion.7

ANALYSIS

By decision dated July 27, 2016, OWCP granted appellant a schedule award for three 

percent permanent impairment of the right upper extremity. Appellant requested an oral hearing 

by appeal request form dated and postmarked August 29, 2016. Section 8124(b)(1) is unequivocal 

on the time limitation for requesting a hearing.8 As appellant’s request for hearing was submitted 

more than 30 days after the July 27, 2016 OWCP decision, it was untimely filed. He was, 

therefore, not entitled to an oral hearing as a matter of right.

OWCP has the discretionary power to grant an oral hearing when a claimant is not entitled 

to one as a matter of right. It exercised this discretion in its March 2, 2017 decision, finding that 

appellant’s issue could equally be addressed by requesting reconsideration and submitting 

additional evidence. This basis for denying his request for a hearing is a proper exercise of 

OWCP’s authority.9 Accordingly, the Board finds that OWCP properly denied appellant’s request 

for an oral hearing as untimely filed.

On appeal appellant asserts that Dr. Glass provided a more accurate determination of his 

right thumb impairment and his report should be used to determine the impairment rating. As 

explained above, the Board lacks jurisdiction over the merits of the claim. 

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for an oral hearing as 

untimely filed.

 

4 5 U.S.C. § 8124(b)(1).

5 20 C.F.R. §§ 10.616, 10.617.

6

Id. at § 10.616(a).

7 Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

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

9 Mary B. Moss, 40 ECAB 640, 647 (1989).
4

ORDER

IT IS HEREBY ORDERED THAT the March 2, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: August 16, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board