United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.H., widow of R.H., Appellant 

and 

DEPARTMENT OF ENERGY, MOUND 

PLANT, Miamisburg, OH, Employer 

__________________________________________ 

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Docket No. 17-0978 

Issued: August 29, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 April 4, 2017 appellant, through counsel, filed a timely appeal from a November 2, 

2016 merit decision and a February 21, 2017 nonmerit decision of the Office of Workers’ 

Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this 

case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUES 

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

before an OWCP hearing representative; and (2) whether appellant established that the 

employee’s death was causally related to factors of his federal employment. 

FACTUAL HISTORY 

Appellant, widow of the deceased employee, filed a claim for death benefits on 

August 19, 2016.3

 The claim alleged that exposure to hazardous material while in federal 

employment contributed to the employee’s death. The employee had worked from January 22, 

1984 to March 31, 1996 at the employing establishment’s facility in Miamisburg, Ohio as a 

health and safety inspector. The employee died on August 16, 2013. 

An autopsy report dated August 19, 2013 indicated that the employee’s final clinical 

diagnoses included malignant mesothelioma, pneumonia, status post left pneumectomy, a history 

of asbestos expose, a history of plutonium exposure, fluid overload, and seizures. The death 

certificate indicated that the cause of death was malignant mesothelioma. 

By decision dated November 2, 2016, OWCP denied appellant’s claim as untimely filed. 

It found that the claim had been filed more than three years after the employee’s death on 

August 16, 2013. 

On November 8, 2016 appellant, through counsel, requested a telephonic hearing before a 

hearing representative of OWCP’s Branch of Hearings and Review. 

By decision dated February 21, 2017, OWCP’s Branch of Hearings and Review denied 

appellant’s request for a hearing. The decision found that 5 U.S.C. § 8124 applied to injuries 

after July 4, 1966, and “[s]ince the injury under consideration in the present case occurred on 

March 31, 1996, the day of [the employee’s] last day in federal employment, you are not, as a 

matter of right, entitled to an oral hearing nor a review of the written record on this claim.” The 

Branch of Hearings and Review held that it had exercised its discretion and further denied the 

hearing request as appellant could equally well request reconsideration. 

LEGAL PRECEDENT -- ISSUE 1 

5 U.S.C. § 8124(b)(1) provides in pertinent part: 

“Before review under section 8128(a) of this title, a claimant for compensation 

not satisfied with a decision of the Secretary under subsection (a) of this title is 

entitled, on request made within 30 days after the date of the issuance of the 

decision, to a hearing on his claim before a representative of the Secretary.”4

 3

 The claim was dated August 4, 2016. 

4

 5 U.S.C. § 8124(b)(1). 
3

 As section 8124(b)(1) is unequivocal in setting forth the time limitation for requesting a 

hearing, a claimant is not entitled to a hearing as a matter of right unless the request is made 

within the requisite 30 days.5

ANALYSIS -- ISSUE 1 

OWCP’s merit decision was dated November 2, 2016. Counsel filed a hearing request on 

November 8, 2016. Since the hearing request was filed within 30 days of the November 2, 2016 

OWCP decision, appellant was entitled to a hearing as a matter of right. 

The February 21, 2017 OWCP decision referred to section 8124 as applying to injuries 

after July 4, 1966,6 and then erroneously found that it therefore did not apply to the current 

claim. The claim in this case is for death benefits, and the employee’s death occurred on 

August 16, 2013,7

 but even if the date of the employee’s last exposure in federal employment, 

March 31, 1996, was used as a date of injury, this was clearly after July 4, 1966.8 

Since appellant filed a timely hearing request, she is entitled to a hearing pursuant to 

5 U.S.C. § 8124(b)(1). The case will be remanded for a hearing before an OWCP hearing 

representative. The Board will not address the merits of the November 2, 2016 OWCP decision 

on this appeal.9

 

CONCLUSION 

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

 5 See William F. Osborne, 46 ECAB 198 (1994). 

6

 5 U.S.C. § 8124 was enacted as part of the 1966 amendments to FECA, and was applicable to injuries occurring 

after July 4, 1966, the date of enactment. See David M. Spencer, 24 ECAB 251 (1973). 

7

 In Nellie V. Vanoy (Martin D. Vanoy), 32 ECAB 1924 (1981), the Board used the date of death as the applicable 

date of injury under 5 U.S.C. § 8124, finding that there was no hearing as a matter of right because the employee’s 

death occurred in 1950. 

8

 The February 21, 2017 decision may have erroneously read July 4, 1966 as July 4, 1996. 

9

 When a claimant is entitled to a hearing before an OWCP hearing representative, the Board will not address the 

underlying merit decision. The merits are subject to further adjudication pursuant to the hearing before an OWCP 

hearing representative, and therefore are not in posture for review by the Board. See Gary W. Cooper, Docket No. 

97-0518 (issued March 5, 1999); see also 20 C.F.R. § 501.2(c)(2) (the Board will not review interlocutory matters 

during the pendency of a case). 
4

ORDER 

IT IS HEREBY ORDERED THAT the February 21, 2017 decision of the Office of 

Workers’ Compensation Programs is reversed. The November 2, 2016 decision is set aside and 

the case remanded for further action consistent with this decision of the Board. 

Issued: August 29, 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