United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

I.R., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

San Juan, PR, Employer 

__________________________________________ 

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Docket No. 16-1796 

Issued: January 13, 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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 9, 2016 appellant filed a timely appeal of a June 6, 2016 merit decision 

and an August 11, 2016 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 has jurisdiction to consider the merits of this case. 

ISSUES 

The issues are: (1) whether OWCP properly denied appellant’s request for an oral 

hearing as untimely; and (2) whether appellant has met her burden of proof to establish 

permanent impairment of a scheduled member. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On October 14, 2014 appellant, then a 68-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on October 10, 2014 she sustained severe trauma to one of her 

fingers when it was caught in a machine. 

The employing establishment provided appellant with an authorization for treatment 

(Form CA-16) and appellant’s physician completed the reverse side on October 14, 2014 noting 

that appellant had sustained a partial amputation of her right ring finger. 

In a letter dated October 30, 2014, OWCP noted that appellant’s claim initially appeared 

to be a minor injury that resulted in minimal lost time from work and that payment of a limited 

amount of medical expenses was administratively approved. It reopened her claim to formally 

consider the merits of her claim and requested additional factual and medical evidence. OWCP 

afforded appellant 30 days to respond. 

On December 1, 2014 OWCP accepted appellant’s claim for open fracture of her right 

phalanx. 

Appellant filed a claim for a schedule award (Form CA-7) on February 12, 2015. 

Dr. Eduardo Miralles Alonso, a general practitioner, diagnosed right third finger trauma and 

laceration on November 5, 2014. On November 6, 2014 Dr. Carmen J. Negron, a radiologist, 

diagnosed comminuted fracture of the tuft of the fourth finger with osteoarthritic changes at the 

distal interphalangeal joint including joint space narrowing and marginal osteophytes. 

In a letter dated March 30, 2015, OWCP requested that appellant provide additional 

medical opinion evidence in support of her claim for permanent impairment. It advised that any 

impairment rating should reference the American Medical Association, Guides to the Evaluation 

of Permanent Impairment (A.M.A., Guides). OWCP afforded appellant 30 days to respond. 

In notes dated November 6, 2014 and April 28, 2015, Dr. John Velez-Rodriquez, a 

physiatrist, diagnosed right fourth digit distal phalangeal laceration, comminute fracture, and 

disturbance of skin sensation. He also noted hand osteoarthritis. 

Dr. Miralles examined appellant on April 27, 2015 and found discomfort in the fourth 

finger with fracture, laceration, and amputation and distal deformity as well as disorders in 

sensitivity. Appellant submitted several medical reports in Spanish. 

In a June 3, 2015 decision, OWCP denied appellant’s claim for a schedule award finding 

that she failed to submit the requested medical evidence to establish permanent impairment. 

On May 2, 2016 appellant filed a claim for a schedule award (Form CA-7). In a letter 

dated May 5, 2016, OWCP requested that she provide additional medical evidence establishing 

her permanent impairment for schedule award purposes. It again afforded appellant 30 days to 

respond. 
3

By decision dated June 6, 2016, OWCP denied appellant’s claim for a schedule award 

finding that she had not submitted the medical evidence necessary to establish permanent 

impairment of a scheduled member. 

Appellant requested an oral hearing from OWCP’s Branch of Hearings and Review on 

August 2, 2016. By decision dated August 11, 2016, OWCP’s Branch of Hearings and Review 

denied her requested oral hearing finding that her request was untimely filed and that the issue in 

the case could equally well be addressed through the reconsideration process. 

LEGAL PRECEDENT -- ISSUE 1 

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

OWCP representative, states: “Before review under section 8128(a) of this title, a claimant ... 

not satisfied with a decision of the Secretary ... is entitled, on request made within 30 days after 

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

Secretary.”2 Section 10.615 of OWCP’s 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.3 OWCP regulations provide that the request must be sent within 30 days of the date of 

the decision for which a hearing is sought and also that the claimant must not have previously 

submitted a reconsideration request (whether or not it was granted) on the same decision.4

 The Board has held that OWCP, in its broad discretionary authority in the administration 

of FECA,5

 has the power to hold hearings and reviews of the written record in certain 

circumstances where no legal provision was made for such reviews and that OWCP must 

exercise this discretionary authority in deciding whether to grant a hearing or review of the 

written record.6

 OWCP procedures, which require OWCP to exercise its discretion to grant or 

deny a hearing or review of the written record when the request is untimely or made after 

reconsideration, are a proper interpretation of FECA and Board precedent.7

ANALYSIS -- ISSUE 1 

In the instant case, OWCP properly determined that appellant’s August 2, 2016 request 

for an oral hearing was untimely filed as it was made more than 30 days after the issuance of 

OWCP’s June 6, 2016 decision. It therefore, properly denied her hearing as a matter of right. 

 OWCP then appropriately proceeded to exercise its discretion, in accordance with Board 

precedent, to determine whether to grant a hearing in this case. It determined that a hearing was 

 2

 5 U.S.C. § 8124(b)(1). 

3

 20 C.F.R. § 10.615. 

4 Id. at § 10.616(a). 

5

 5 U.S.C. §§ 8101-8193. 

6 Marilyn F. Wilson, 52 ECAB 347 (2001). 

7 Daniel J. Perea, 42 ECAB 214, 221 (1990). 
4

unnecessary as the issue could be resolved through the submission of evidence in the 

reconsideration process. Therefore, OWCP properly denied appellant’s request for a hearing as 

untimely and properly exercised its discretion in determining to deny her request for a hearing as 

she had other review options available. 

LEGAL PRECEDENT -- ISSUE 2 

The schedule award provision of FECA8

 and its implementing regulations9 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment for 

loss of use of scheduled members or functions of the body. FECA, however, does not specify 

the manner in which the percentage loss of a member shall be determined. The method used in 

making such determination is a matter which rests in the discretion of OWCP. For consistent 

results and to ensure equal justice, the Board has authorized the use of a single set of tables so 

that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of 

permanent impairment according to the standards set forth in the specified edition of the A.M.A., 

Guides.

10 

OWCP’s procedures provide that specific medical evidence is required to support a 

schedule award including: competent medical evidence which shows that the impairment has 

reached a permanent and fixed state or maximum medical improvement; medical evidence which 

describes the impairment in sufficient detail for the claims examiner to visualize the character 

and degree of disability; and medical evidence which gives a percentage of impairment based on 

a specific diagnosis.11

ANALYSIS -- ISSUE 2 

The Board finds that appellant has not met her burden of proof to establish permanent 

impairment of a scheduled member entitling her to a schedule award. 

On May 2, 2016 appellant filed a claim for a schedule award. In a letter dated May 5, 

2016, OWCP requested that she provide additional medical evidence establishing her permanent 

impairment for schedule award purposes. It afforded appellant 30 days to respond. Appellant 

did not provide any evidence addressing her permanent impairment. The Board notes that there 

is no evidence of record complying with the requirements to establish permanent impairment, no 

medical opinion that appellant has reached maximum medical improvement, no medical 

evidence which describes the impairment in sufficient detail for the claims examiner to visualize 

 8

 5 U.S.C. § 8107. 

9

 20 C.F.R. § 10.404. 

10 For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides. 

A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and 

Permanent Disability Claims, Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, 

Chapter 3.700, Exhibit 1 (January 2010). 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability, Chapter 2.808.5 

(February 2013). 
5

the character and degree of disability, and no medical evidence which gives a percentage of 

impairment based on a specific diagnosis.12 As appellant failed to provide medical evidence of 

permanent impairment as a result of her accepted condition of open fracture of her right phalanx, 

she has not met her burden of proof. 

Appellant may request a schedule award or increased schedule award based on evidence 

of a new exposure or medical evidence showing progression of an employment-related condition 

resulting in permanent impairment or increased impairment. 

CONCLUSION 

The Board finds that the Branch of Hearings and Review properly denied appellant’s 

request for an oral hearing as untimely. The Board further finds that appellant has not met her 

burden of proof to establish permanent impairment of a scheduled member entitling her to a 

schedule award. 

ORDER 

IT IS HEREBY ORDERED THAT August 11 and June 6, 2016 decisions of the Office 

of Workers’ Compensation Programs are affirmed. 

Issued: January 13, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 12 See id.; see also Vanessa Young, 55 ECAB 575 (2004).