United States Department of Labor

Employees’ Compensation Appeals Board

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P.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Dallas, TX, Employer

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Docket No. 19-1003

Issued: December 4, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On April 8, 2019 appellant filed a timely appeal from a December 19, 2018 nonmerit 

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

elapsed from the last merit decision, dated October 9, 2013, 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the December 19, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

ISSUE

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

record as untimely filed pursuant to 5 U.S.C. § 8124.

FACTUAL HISTORY

On June 28, 2013 appellant, then a 50-year-old city mail carrier, filed an occupational 

disease claim (Form CA-2) for a right shoulder condition, which he attributed to 15 years of 

carrying a 35-pound mail pouch over his shoulder while walking and delivering mail in the 

performance of duty. He noted that he first became aware of his condition on October 1, 2010 and 

realized its relation to his federal employment on December 1, 2013.

3

 On the reverse side of the 

claim form the employing establishment indicated that appellant stopped work on June 22, 2011 

and that he was receiving wage-loss compensation on the periodic rolls due to an employmentrelated traumatic injury under OWCP File No. xxxxxx483.4

In a January 31, 2013 report, Dr. Ronnie D. Shade, a Board-certified orthopedic surgeon, 

noted that appellant sustained an occupational injury to his right shoulder on December 13, 2012. 

He diagnosed right shoulder impingement syndrome and right shoulder acromioclavicular (AC) 

joint osteoarthritis.5 Dr. Shade further indicated that appellant’s diagnosed conditions were 

causally related to his December 13, 2012 injury.

After efforts to further develop the factual and medical record, OWCP issued an October 9, 

2013 decision denying appellant’s occupational disease claim. It found that the medical evidence

of record was insufficient to establish that appellant’s right shoulder condition was causally related 

to the accepted factors of his federal employment.

After an almost five-year period of inactivity following the October 9, 2013 decision, the 

record indicates that appellant telephoned OWCP on September 13, 2018 to inquire about the 

status of the present claim. OWCP advised that the claim had been denied on October 9, 2013 

because there was no evidence for causal relationship. A Form CA-110 memorandum of telephone 

call indicated that “[n]o mail was returned as undeliverable.”

Appellant telephoned OWCP again on October 3, 2018 to inquire about the status of his 

case. OWCP advised him that his case was closed and that benefits had been denied (Case Status 

Code: C3).

 

3 The December 2013 date appellant identified on the Form CA-2 was, without explanation, approximately five 

months in the future. 

4 Appellant has an accepted traumatic injury claim for a left foot/heel condition that arose in the performance of 

duty on January 31, 2011.

5 Dr. Shade also diagnosed right foot plantar fasciitis.
3

On October 10, 2018 OWCP received additional right shoulder treatment records from

Dr. Shade covering the period December 13 to 20, 2012, January 10 through March 29, 2013, 

April 16 to 23, 2015, June 14, 2017, and February 13 and October 4, 2018.

On November 2, 2018 appellant again telephoned OWCP inquiring about the status of his 

claim. OWCP reiterated that the claim had been denied.

On November 28, 2018 OWCP received additional medical evidence, which included a 

June 26, 2017 right shoulder magnetic resonance (MR) arthrogram, and reports from Dr. Shade 

dated December 13, 2012, January 31, 2013, and November 12, 2018. In his latest report,

Dr. Shade identified October 1, 2010 as appellant’s date of injury and also noted that the June 26, 

2017 MR arthrogram revealed a full-thickness tear of the supraspinatus tendon and AC joint

degenerative joint disease. He diagnosed right shoulder impingement syndrome, right shoulder 

bursitis, right shoulder primary osteoarthritis, and right shoulder complete rotator cuff tear/rupture. 

Dr. Shade further noted that appellant was off work under his foot case, and reported limitations 

of no prolonged overhead use and no lifting in excess of 25 pounds.

On December 11, 2018 OWCP received appellant’s November 29, 2018 request for review 

of the written record with respect to the October 9, 2013 merit decision.

By decision dated December 19, 2018, a representative of OWCP’s Branch of Hearings 

and Review denied appellant’s November 29, 2018 request for review of the written record,

finding that it was untimely filed as it was not postmarked within 30 days of the issuance of the 

October 9, 2013 decision. After exercising its discretion, the Branch of Hearings and Review 

further found that the merits of the claim could equally well be addressed through the 

reconsideration process.

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.”

6

 

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

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.7 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 

postmark or other carrier’s date marking and before the claimant has requested reconsideration.8 

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

 

6 5 U.S.C. § 8124(b)(1).

7 20 C.F.R. §§ 10.616, 10.617.

8

Id. at § 10.616(a).
4

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

appellant’s request and must exercise its discretion.9

ANALYSIS

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

record as untimely filed pursuant to 5 U.S.C. § 8124.

OWCP’s regulations provide that the request for review of the written record must be made 

within 30 days of the date of the decision for which a review is sought. Because appellant’s 

November 29, 2018 hearing request postdated OWCP’s October 9, 2013 decision by more than 30 

days, it was untimely and he was not entitled to a review of the written record as a matter of right.10

Although appellant’s November 29, 2018 request for a review of the written record was 

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

discretion.11 The Board finds that in the December 19, 2018 decision, OWCP’s hearing 

representative properly exercised discretion by determining that the issue in the case could be 

equally well addressed by a request for reconsideration before OWCP along with the submission 

of new evidence establishing that appellant’s condition was causally related to factors of his federal 

employment. 

The Board has held that the only limitation on OWCP’s authority is reasonableness. An 

abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable 

exercise of judgment, or actions taken which are contrary to both logic and probable deductions 

from established facts.12 In this case, the evidence of record does not indicate that OWCP abused 

its discretion by denying appellant’s request for a review of the written record. Accordingly, the 

Board finds that OWCP properly denied appellant’s request for a review of the written record.

CONCLUSION

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

record as untimely filed pursuant to 5 U.S.C. § 8124. 

 

9 M.G., Docket No. 17-1831 (issued February 6, 2018); Eddie Franklin, 51 ECAB 223 (1999); Delmont L. 

Thompson, 51 ECAB 155 (1999).

10 Id.

11 Id. 

12 M.G., supra note 9; Samuel R. Johnson, 51 ECAB 612 (2000).
5

ORDER

IT IS HEREBY ORDERED THAT the December 19, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 4, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board