United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

St. Louis, MO, Employer 

__________________________________________ 

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Docket No. 14-589 

Issued: February 25, 2015 

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 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On January 15, 2014 appellant filed a timely appeal from an October 30, 2013 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1

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

not have jurisdiction over the merits of this case.2

 

                                                             1

 5 U.S.C. § 8101 et seq. 

2

 The record contains final decisions dated July 2, 2013 regarding a schedule award claim, and July 25, 2013 

regarding a recurrence claim. Because more than 180 days elapsed between the July 2, 2013 decision and the filing 

of this appeal on January 15, 2014, the Board lacks jurisdiction to review the schedule award decision. See

20 C.F.R. § 501.3(e). The Board also notes that by an informational letter dated August 2, 2013 OWCP rescinded 

the July 25, 2013 decision and noted that appellant’s claim for wage loss would be further developed as a request for 

modification of a loss of wage-earning capacity (LWEC) determination. The issue of LWEC modification is 

currently interlocutory in nature and the Board lacks jurisdiction to review this matter. See 20 C.F.R. § 501.2(c)(2). 
2

ISSUE 

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

untimely under 5 U.S.C. § 8124. 

FACTUAL HISTORY 

Appellant, a 44-year-old nurse, injured her right knee on January 24, 2008 when she 

slipped and fell to the floor at work. She filed a claim for benefits, which OWCP accepted for 

sprain of the right lateral collateral ligament, derangement of anterior horn of right medial 

meniscus, and derangement of the posterior horn of the right medial meniscus. 

On April 21, 2008 Dr. Richard H. Lehman, an osteopath, performed authorized 

arthroscopic surgery to repair appellant’s torn right lateral meniscus. 

In reports dated April 13 and 23, 2010, Dr. Lehman released appellant to return to work 

for eight hours per day as a clerk and letter carrier with the following restrictions: no lifting 

exceeding 10 pounds for approximately three hours a day; intermittent stairclimbing, walking, 

and standing with seated breaks daily; intermittent pushing/pulling/bending for one to two hours 

per day; driving a vehicle for five to six hours per day; reaching above the shoulder/climbing for 

two to four hours; intermittent climbing and twisting at the waist for four hours a day; and sitting 

not exceeding 30 minutes each hour, for six hours per day. He allowed her to case her route 

daily with modifications. 

On June 9, 2010 appellant accepted a position as a modified city letter carrier, which met 

Dr. Lehman’s restrictions. 

In an August 11, 2010 decision, OWCP found that appellant’s actual earnings as a 

modified letter carrier effective June 9, 2010 fairly and reasonably represented her wage-earning 

capacity. It noted that she had worked in the position for over 60 days. OWCP indicated that 

appellant’s current, adjusted pay rate for her job on the date of injury was $601.90, and that her 

actual wages in the modified letter carrier were $1,014.10 per week. It reduced her 

compensation to zero as her actual earnings exceeded the current wages of her date-of-injury 

position. 

On May 12, 2011 appellant requested a schedule award. By letter dated May 31, 2011, 

OWCP requested that Dr. Lehman provide an opinion regarding appellant’s work-related 

condition and any resulting permanent impairment. 

In a report dated June 15, 2011, Dr. Lehman related that, following appellant’s workrelated right knee injury, she had undergone right knee arthroscopy with extensive debridement 

of scar tissue, partial lateral meniscectomy, debridement of the patellofemoral joint and open 

medial collateral ligament reconstruction. He stated that, pursuant to the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment, he would 

assign a three percent impairment for right leg joint pain, three percent impairment for tear of the 

lateral meniscus of the right knee, two percent impairment for derangement of the lateral 

meniscus of the right knee, and six percent impairment for sprain of the right knee cruciate 
3

ligament. Dr. Lehman concluded that appellant had a 14 percent permanent impairment of the 

right lower extremity. 

On February 13, 2012 Dr. David H. Garelick, Board-certified in orthopedic surgery, 

acting as OWCP’s district medical adviser, reviewed Dr. Lehman’s report. He concluded that 

Dr. Lehman’s rating of 14 percent permanent impairment should be disregarded. Dr. Garelick 

explained that, while Dr. Lehman awarded a six percent impairment for sprain of the 

acromioclavicular (ACL), in his numerous notes, he did not describe any ACL laxity, and in fact 

had described the ACL as “in tact,” and normal at the time of the arthroscopy. Also while 

Dr. Lehman awarded separate impairment ratings for lateral menisectomy as well as for 

derangement of the lateral meniscus, these were the same thing and should only be rated once. 

Dr. Garelick concluded that appellant had a three percent permanent impairment of the right 

knee due to her lateral menisectomy. 

By narrative report dated September 11, 2012, Dr. Lehman related that he had examined 

appellant on that day for left hip complaints. He related her examination findings and then noted 

that a magnetic resonance imaging (MRI) scan of her left hip showed a partial tear of her labrum. 

Dr. Lehman concluded that he believed this was directly related to appellant’s right knee 

condition and her job duties which required substantial walking. He completed a form report on 

September 26, 2012 wherein he noted that she was restricted to sedentary work. 

On October 30, 2012 appellant filed a Form CA-7 claim for compensation for leave 

without pay (LWOP) from October 6 to 20, 2012. 

By letter dated November 29, 2012, OWCP asked appellant to submit additional medical 

evidence supporting that her alleged period of total disability from October 6 to 20, 2012 was 

causally related to her accepted right knee conditions. It requested that she submit this evidence 

within 30 days. 

In an OWCP memorandum dated December 7, 2012, it was determined that appellant 

was off work from October 6 to 20, 2012 because there was no work available at the employing 

establishment within her physician’s work restrictions. 

OWCP referred the case record to the district medical adviser, Dr. Christopher Gross, an 

orthopedic surgeon, to determine whether appellant’s left knee and left hip conditions were 

related to her accepted September 6, 2003 right knee injury. On December 16, 2012 Dr. Gross 

reported that an MRI scan of appellant’s left knee was reported as normal. He disagreed with 

Dr. Lehman’s assessment that walking at work caused degeneration of appellant’s hip. 

Dr. Gross noted that scientific literature did not relate prolonged walking to hip joint 

deterioration, and altered gait mechanics was not a known cause for idiopathic knee pain. He 

concluded that OWCP should not accept any new work-related conditions and should not cover 

any surgical expense related to appellant’s left hip. 

By decision dated July 2, 2013, OWCP granted appellant a schedule award for a three 

percent permanent impairment of the right lower extremity for the period September 16 to 

November 15, 2009 for a total of 8.64 weeks of compensation. 
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In an undated letter received by OWCP on July 23, 2013, appellant related that, after her 

right knee injury in 2003, she underwent four surgeries, her right leg was now shorter than her 

left, and this caused stress to her left hip. She stated that Dr. Lehman had sent documentation of 

her condition to OWCP since September 2012, but her request for compensation benefits had 

been ignored. 

By decision dated July 25, 2013, OWCP denied appellant’s claim for compensation 

finding that she failed to establish disability for the period October 6 to 20, 2012. 

By letter dated August 2, 2013, OWCP informed appellant that it had erred in 

determining her entitlement to wage-loss compensation from October 6 to 20, 2012. It advised 

her that, since a formal LWEC decision was in place on her claim, her claim for wage-loss 

compensation from October 6 to 20, 2012 was being treated as a request for modification of her 

formal LWEC decision. OWCP therefore rescinded the July 25, 2013 decision. It stated that 

there was currently insufficient evidence in the record for modifying a formal LWEC decision 

pursuant to 20 C.F.R. § 10.511 and advised appellant that she needed to submit evidence or 

argument to substantiate one of the three criteria required to meet the standards set forth in 20 

C.F.R. § 10.511. 

On August 29, 2013 appellant requested an oral hearing using a form from the August 10, 

2010 wage-earning capacity decision but noting on the form that she was sure there was more 

than three percent permanent disability on her leg. 

By decision dated October 30, 2013, OWCP denied appellant’s request for an oral 

hearing. 

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 

issuance of the decision, to a hearing on his or her claim before a representative of the 

Secretary.3

 Section 10.615 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.4

 The 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

 A hearing is a review of 

an adverse decision by an OWCP 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.6

 A 

request for either an oral hearing or a review of the written record must be submitted, in writing, 

                                                             3

 5 U.S.C. § 8124(b)(1). 

4

 20 C.F.R. § 10.615. 

5 Id. at § 10.616(a). 

6 Id. at § 10.615. 
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within 30 days of the date of the decision for which the hearing is sought.7

 A claimant is not 

entitled to a hearing if the request is not made within 30 days of the date of the decision.8

 

OWCP has discretion, however, to grant or deny a request that is made after this 30-day period.9 

In such a case, it will determine whether a discretionary hearing should be granted and, if not, 

will so advise the claimant with reasons.10

While a claimant may not be entitled to a hearing as a matter of right if the request is 

untimely, OWCP has the discretionary authority to grant the request and must properly exercise 

such discretion.11

ANALYSIS 

On August 29, 2013 appellant requested an oral hearing. Although is it unclear for which 

decision she was requesting an oral hearing OWCP considered the request for oral hearing to 

relate to the August 11, 2010 wage-earning capacity decision and found it untimely. As 

appellant did not request a hearing within 30 days of August 11, 2010, she was not entitled to a 

hearing as a matter of right under section 8124(b)(1). Even if the decision for which the oral 

hearing was requested was the July 2, 2013 schedule award decision, it too was not filed within 

30 days and was also not entitled to a hearing. OWCP exercised its discretion and determined 

that the issues in the case could be resolved equally well through a request for reconsideration 

and the submission of additional evidence. The Board finds that OWCP did not abuse its 

discretion in denying appellant’s request for an oral hearing in its October 30, 2013 decision. 

CONCLUSION 

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

untimely under 5 U.S.C. § 8124. 

                                                             7 Supra note 5. 

8 James Smith, 53 ECAB 188 (2001). 

9

 20 C.F.R. § 10.616(b). 

10 Supra note 8. 

11 See id.; Cora L. Falcon, 43 ECAB 915 (1992); Mary B. Moss; 40 ECAB 640 (1989); Rudolph Bermann, 

26 ECAB 354 (1975). 
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ORDER 

IT IS HEREBY ORDERED THAT the October 30, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 25, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board