United States Department of Labor

Employees’ Compensation Appeals Board

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S.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Easton, MD, Employer

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Docket No. 17-1876

Issued: January 24, 2018

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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 5, 2017 appellant filed a timely appeal from an April 12, 2017 nonmerit 

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

elapsed from the most recent merit decision dated February 7, 2017, 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.

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ISSUE

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

before an OWCP hearing representative as untimely filed under 5 U.S.C. § 8124. 

 

1 5 U.S.C. § 8101 et seq.

2 Appellant submitted new evidence on appeal. As the Board’s jurisdiction is limited to evidence that was before 

OWCP at the time of its final decision, the Board is precluded from reviewing this evidence for the first time on 

appeal. 20 C.F.R. § 501.2(c)(1). J.W., Docket No. 17-1366 (issued October 26, 2017).
2

FACTUAL HISTORY

On December 10, 2014 appellant, then a 52-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on December 6, 2014 she was involved in a work-related motor 

vehicle incident which resulted in abrasions, a broken rib, and a black eye. Appellant stopped 

work on December 6, 2014.

By decision dated February 2, 2015, OWCP accepted appellant’s claim for lumbar sprain, 

contusions of the right elbow and forearm, contusions of the right chest wall, and a right black 

eye. Medical benefits were authorized and appellant received wage-loss compensation on the 

supplemental rolls as of January 21, 2015. On October 8, 2015 OWCP accepted a claim for 

recurrence of disability (Form CA-2a) effective September 8, 2015. By decision dated May 20, 

2016, it accepted additional conditions of wedge compression fracture of the thoracic vertebra 

and flail chest. Appellant received wage-loss compensation on the periodic rolls as of 

July 24, 2016. 

Following the establishment of a conflict in medical opinion as to appellant’s disability 

status, in an impartial medical evaluation report dated September 30, 2016, Dr. Mohammed H. 

Zamani, a Board-certified orthopedic surgeon, opined that appellant was capable of working 

without restrictions and that no further medical treatment was necessary. 

On October 19, 2016 OWCP proposed to terminate appellant’s entitlement to wage-loss 

compensation and medical benefits. It found that the special weight of medical evidence rested 

with Dr. Zamani. On February 7, 2017 OWCP finalized its termination of and wage-loss 

compensation and medical benefits effective March 5, 2017.

By form dated March 20, 2017, appellant requested an oral hearing before an OWCP 

hearing representative. The envelope containing the form was postmarked March 22, 2017 and 

was received by OWCP on March 27, 2017.

By decision dated April 12, 2017, OWCP’s Branch of Hearings and Review denied 

appellant’s hearing request as untimely filed. OWCP’s hearing representative noted that OWCP 

had issued its decision on February 7, 2017, while appellant’s hearing request was postmarked 

March 22, 2017, more than 30 days after OWCP’s decision. She found that appellant was not 

entitled to a hearing 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 hearing, but determined that the issue in this case could equally well be addressed 

by a request for reconsideration before OWCP. 

LEGAL PRECEDENT

A claimant may obtain a hearing from a final adverse OWCP decision by writing to the 

address specified in the decision.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. The claimant must not have previously submitted a reconsideration request 

 

3 20 C.F.R. § 10.616(a).
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(whether or not it was granted) on the same decision. If the request is not made within 30 days, a 

claimant is not entitled to a hearing as a matter of right. However, the Branch of Hearings and 

Review, in exercise of its discretion, may either grant or deny a hearing.4 Its procedures require 

that it exercise its discretion to grant or deny a hearing when the request is untimely or made 

after reconsideration under section 8128(a).5 

ANALYSIS

The issue on appeal is solely whether appellant was entitled, as a matter of right, to an 

oral hearing before an OWCP hearing representative, or whether OWCP’s Branch of Hearings 

and Review abused its discretionary authority in denying appellant’s request for a hearing. 

OWCP issued its last decision on February 7, 2017. The regulations provide that “[t]he 

hearing request must be sent within 30 days [...] of the date of the decision for which a hearing 

is sought.” Because appellant’s request postmarked March 22, 2017 was untimely and she was 

not entitled to a review of the written record as a matter of right. 

Although appellant’s request for hearing was untimely, OWCP has the discretionary 

authority to grant the request and it must exercise such discretion.6 OWCP’s hearing 

representative exercised her discretion, but denied appellant’s hearing request because she found 

that the issue of termination could be equally well addressed by a request for reconsideration 

before OWCP. The Board finds that the hearing representative properly exercised her 

discretionary authority in denying appellant’s request for a hearing.7 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.8 In this case, the evidence 

of record does not establish that OWCP abused its discretion in denying appellant’s request for a 

hearing. Accordingly, the Board finds that OWCP properly denied appellant’s hearing request. 

CONCLUSION

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

before an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124.

 

4 5 U.S.C. §§ 8124(b) (1) and 8128(a); Hubert Jones Jr., 57 ECAB 467, 472-73 (2006); Herbert C. Holley, 33 

ECAB 140 (1981).

5 See R.T., Docket No. 08-0408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 --

Claims, Hearings and Review of the Written Record, Chapter 2.1601.2(a) (October 2011).

6 R.V., Docket No. 17-1286 (issued December 5, 2017). 

7 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).

8 Samuel R. Johnson, 51 ECAB 612 (2000).
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ORDER

IT IS HEREBY ORDERED THAT the April 12, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 24, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board