United States Department of Labor

Employees’ Compensation Appeals Board

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M.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Burlingame, CA, Employer

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Docket No. 17-1607

Issued: January 8, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 18, 2017 appellant filed a timely appeal from a January 19, 2017 nonmerit 

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

elapsed from OWCP’s last merit decision, dated August 26 2016, 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 claim.2

ISSUE

The issue is whether a representative of OWCP’s Branch of Hearings and Review 

properly denied appellant’s request for an oral hearing as untimely filed.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal, after the January 19, 2017 decision. 

The Board’s jurisdiction is limited to evidence that was before OWCP at the time of its final decision. Therefore, 

the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
2

FACTUAL HISTORY

On June 20, 2016 appellant, then a 50-year-old clerk, filed an occupational disease claim 

(Form CA-2) alleging that she developed left hand and shoulder conditions due to factors of her 

federal employment, specifically feeding mail for half-an-hour at a steady speed. She indicated 

that she first became aware of the condition on June 5, 2016 and related it to factors of her

federal employment on July 21, 2016. OWCP assigned File No. xxxxxx319 to this claim.

In a June 30, 2016 report, Dr. Adam M. Bellamy, a Board-certified family practitioner, 

indicated that appellant had a work-related injury and needed an ergonomic work evaluation. 

On July 3, 2016 appellant filed a traumatic injury claim (Form CA-1) alleging that she 

sustained a left shoulder and upper arm injury on June 5, 2016 as a result of performing a 

“repetitive job” at work. OWCP assigned File No. xxxxxx513 to this claim.

In a July 6, 2016 letter, the employing establishment controverted appellant’s claim and 

noted that she had an existing occupational disease claim under File No. xxxxxx319 for the same 

part of the body. 

On July 8 and 13, 2016 OWCP advised appellant that the evidence then of record was 

insufficient to establish entitlement to FECA benefits. It afforded her at least 30 days to submit 

additional factual and medical evidence in support of her claim.

On August 5, 2016 OWCP informed appellant that it had created two separate cases for 

the same injury. It, therefore, deleted case File No. xxxxxx513 and transferred the evidence of 

record to the current File No. xxxxxx319, the occupational disease claim. 

By decision dated August 26, 2016, OWCP denied appellant’s claim, finding that she 

failed to submit medical evidence containing a diagnosis in connection with the accepted 

employment factors and, thus, she failed to establish fact of injury.

In November 2016, appellant submitted the appeal request form that accompanied 

OWCP’s August 26, 2016 decision. The form was dated November 16, 2016 and requested an 

oral hearing by a representative of the Branch of Hearings and Review. The envelope was 

postmarked November 17, 2016. Appellant also submitted a November 16, 2016 statement, as 

well as additional medical evidence in support of her claim. 

By decision dated January 19, 2017, a hearing representative denied appellant’s request 

for an oral hearing, finding that appellant’s request was not made within 30 days of OWCP’s 

August 26, 2016 decision. As such, appellant was not entitled to a hearing as a matter of right. 

The hearing representative considered a discretionary hearing, but declined to grant one, noting 

that appellant could instead file for reconsideration and submit new evidence establishing an 

employment-related injury.
3

LEGAL PRECEDENT

A claimant, injured on or after July 4, 1966, who has received a final adverse decision by 

OWCP, may obtain a hearing 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.4 The claimant must not have previously 

submitted a reconsideration request (whether or not it was granted) on the same decision.5 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 may exercise its discretion to either grant or deny 

a hearing.6

ANALYSIS

OWCP issued its merit decision on August 26, 2016. Appellant had 30 days to request a 

hearing, but she waited more than two and a half months. The hearing request was postmarked 

November 17, 2016. The regulations clearly specify that “[t]he hearing request must be sent 

within 30 days ... of the date of the decision for which a hearing is sought.”

7

 As appellant’s 

request was untimely filed, OWCP’s hearing representative properly determined that she was not 

entitled to a hearing as a matter of right. The hearing representative also exercised her discretion 

and further denied appellant’s request as the relevant issue could be equally well addressed by 

requesting reconsideration before OWCP. The Board finds that the hearing representative 

properly exercised her discretionary authority in denying appellant’s request.8

CONCLUSION

The Board finds that a representative of OWCP’s Branch of Hearings and Review 

properly denied appellant’s request for an oral hearing as untimely filed.

 

3 20 C.F.R. § 10.616(a).

4

Id.

5

Id.

6 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).

7 20 C.F.R. § 10.616(a).

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).
4

ORDER

IT IS HEREBY ORDERED THAT the January 19, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 8, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board