United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.S., Appellant 

and 

DEPARTMENT OF THE NAVY, PACIFIC 

FLEET SHIPYARDS, Bremerton, WA, Employer

__________________________________________ 

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Docket No. 17-0063 

Issued: March 7, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 17, 2016 appellant filed a timely appeal of a June 16, 2016 nonmerit decision 

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

from April 6, 2016, the date of the most recent 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 to review the merits of this case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for a review of the 

written record as untimely filed under 5 U.S.C. § 8124(b). 

FACTUAL HISTORY 

On May 1, 1979 appellant, then a 30-year-old marine machinist, filed a traumatic injury 

claim (Form CA-1) after he fell down steps while in the performance of duty on March 27, 1979. 

 1

 5 U.S.C. § 8101 et seq. 
2

The claim was later accepted for intervertebral disc disorder with myelopathy of the lumbar 

region, a single episode of severe major depression without mention of psychotic behavior, a 

closed fracture of the cervical vertebra without spinal cord injury, chronic pain syndrome, and 

other nervous system complications. 

On February 2, 2016 appellant requested surgical authorization for treatment of his right 

cervical spine via injection. 

On April 6, 2016 OWCP denied authorization for the requested surgical procedure, 

noting that the treatment appeared to be intended to treat appellant’s cervical disc displacement 

and cervical radiculopathy, which was not an accepted condition. 

By form dated May 12, 2016, appellant requested a review of the written record before an 

OWCP hearing representative. The request was submitted via facsimile on June 6, 2016. 

Appellant submitted several medical reports and notes from physicians contemporaneous with 

his request for review. 

By decision dated June 16, 2016, the Branch of Hearings and Review’s hearing 

representative denied appellant’s request for a review of the written record as untimely filed. 

OWCP’s hearing representative noted that OWCP had issued its decision on April 6, 2016, but 

appellant’s request for a review of the written record was signed and dated May 12, 2016. 

Consequently, he found that appellant was not entitled to a review of the written record as a 

matter of right, as the request was submitted more than 30 days after OWCP’s decision. The 

hearing representative also considered whether to grant appellant a discretionary review of the 

written record, but determined that the issue in appellant’s case could equally well be addressed 

by his requesting reconsideration before OWCP. 

LEGAL PRECEDENT 

Section 8124(b)(1) of FECA provides: Before review under section 8128(a) of this title 

relating to reconsideration, 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

Section 10.615 of Title 20 of the Code of Federal Regulations provides that a hearing is a 

review of an adverse decision by a hearing representative. Initially, the claimant can choose 

between two formats: an oral hearing or a review of the written record.3 The hearing 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.4 OWCP has discretion, however, to grant or 

deny a request that is made after this 30-day period.5 In such a case, it will determine whether to 

 2

 5 U.S.C. § 8124(b)(1). 

3

 20 C.F.R. § 10.615. 

4 Id. at § 10.616. 

5 See G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981). 
3

grant a discretionary hearing or review of the written record and, if not, will so advise the 

claimant with reasons. 

ANALYSIS 

Appellant’s request for a review of the written record was signed and dated May 12, 

2016, and received by OWCP via facsimile on June 6, 2016. OWCP issued its last merit 

decision on April 6, 2016. The regulations provide that a request must be sent within 30 days of 

the date of the decision for which a review of the written record is sought.6

 Because appellant’s 

request dated May 12, 2016 was untimely, he was not entitled to a review of the written record as 

a matter of right. 

OWCP, through its hearing representative, then exercised its discretion and denied 

appellant’s request because it found that the issue of authorization of a cervical surgical 

procedure could be equally well addressed by requesting reconsideration before OWCP. 

Because reconsideration exists as an alternative appeal right to address the issues raised by 

OWCP’s April 6, 2016 decision, the Board finds that OWCP did not abuse its discretion in 

denying appellant’s untimely request for review of the written record.7 The Board finds that 

OWCP properly exercised its discretionary authority in denying appellant’s request for a review 

of the written record.8 

Appellant submitted new evidence on appeal. The Board lacks jurisdiction to review 

evidence for the first time on appeal.9

CONCLUSION 

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

written record as untimely filed under 5 U.S.C. § 8124(b). 

 6

 20 C.F.R. § 10.616(a). 

7 See Gerard F. Workinger, 56 ECAB 259 (2005). 

8 Mary B. Moss, 40 ECAB 640, 647 (1989). Abuse of discretion is generally shown through proof of manifest 

error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable 

deductions from known facts. See André Thyratron, 54 ECAB 257, 261 (2002). 

9

 20 C.F.R. § 501.2(c). 
4

ORDER 

IT IS HEREBY ORDERED THAT the June 16, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 7, 2017 

Washington, DC 

 

 Christopher J. Godfrey, 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