United States Department of Labor

Employees’ Compensation Appeals Board

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J.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Milwaukee, WI, Employer

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Docket No. 17-1702

Issued: December 28, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 2, 2017 appellant filed a timely appeal from a March 16, 2017 nonmerit 

decision of the Office of Workers’ Compensation Programs. As more than 180 days elapsed 

from the last merit decision, dated June 17, 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.

ISSUE

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

written record pursuant to 5 U.S.C. § 8124.

On appeal appellant contends that documents supporting that he sustained a work-related 

injury under the instant case assigned OWCP File No. xxxxxx484 were incorrectly sent to his

case assigned OWCP File No. xxxxxx169. 

 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On May 2, 2016 appellant, then a 44-year-old cook, filed an occupational disease claim 

(Form CA-2) alleging that he sustained joint deterioration in both hands due to repetitive use of 

his hands at work. He first became aware of his condition and its relationship to his employment 

on April 19, 2016. 

By decision dated June 17, 2016, OWCP denied appellant’s occupational disease claim 

because the evidence of record was insufficient to establish a medical condition causally related 

to the accepted factors of his federal employment.

In a November 30, 2016 appeal request form, received by OWCP on December 5, 2016, 

appellant requested reconsideration of the June 17, 2016 decision. By decision dated January 17, 

2017, OWCP denied further merit review of appellant’s claim. It found that his request for 

reconsideration neither raised substantive legal questions, nor included new and relevant 

evidence.

In an undated letter, received by OWCP on February 23, 2017, appellant requested a 

review of the written record by an OWCP hearing representative.

By decision dated March 16, 2017, OWCP’s hearing representative denied appellant’s 

request for a review of the written record as he was not entitled to a review as a matter of right 

because he had previously requested reconsideration. It exercised its discretion and further 

denied appellant’s request as the issue in the case could equally well be addressed through the 

reconsideration process.

LEGAL PRECEDENT

Section 8124(b)(1) of FECA provides that before review under section 8128(a) of this 

title, 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 

claim before a representative of the Secretary.2 Section 10.615 of the federal regulations 

implementing this section of FECA provides that a claimant shall be afforded a choice of an oral 

hearing or a review of the written record.3 OWCP regulations provide that the request must be 

sent within 30 days (as determined by the postmark or other carrier’s date marking) of the date of 

the decision for which a review of the written record is sought and also that the claimant must 

not have previously submitted a reconsideration request (whether or not it was granted) on the 

same decision.4

The Board has held that OWCP, in its broad discretionary authority in the administration 

of FECA,5has the power to hold hearings and reviews of the written record in certain 

 

2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. § 10.615

4

Id. at § 10.616(a).

5

Supra note 1.
3

circumstances where no legal provision was made for such reviews and that OWCP must 

exercise this discretionary authority in deciding whether to grant a hearing or review of the 

written record.6 OWCP procedures, which require OWCP to exercise its discretion to grant or 

deny a hearing or review of the written record when the request is untimely or made after 

reconsideration, are a proper interpretation of FECA and Board precedent.7

ANALYSIS

Appellant’s undated request for a review of the written record by an OWCP hearing 

representative was denied as he had previously requested reconsideration pursuant to 5 U.S.C. 

§ 8128(a). In its March 16, 2017 decision, OWCP noted that, while appellant was not entitled to 

a review of the written record as a matter of right, it had considered the matter in relation to the 

issue involved and, under its discretionary authority, further denied the request as he could 

pursue his claim further by requesting reconsideration and submitting evidence in support of his 

claim. 

Appellant had previously requested reconsideration on December 5, 2016, which OWCP 

denied in a January 17, 2017 nonmerit decision. In the instant case, appellant’s request for a 

review of the written record, received February 23, 2017, was made following a request for 

reconsideration under 5 U.S.C. § 8128. Hence, OWCP correctly found that appellant was not 

entitled to review of the written record by a hearing representative as a matter of right under 

section 8124(b)(1) of FECA as he had previously requested reconsideration.8

OWCP then exercised its discretion and determined that appellant’s request for a review 

of the written record could equally well be addressed through the reconsideration process. The 

Board finds that there is no evidence of record that OWCP abused its discretion in denying 

appellant’s request.9 Thus, the Board finds that OWCP’s March 16, 2017 decision denying 

appellant’s request for a review of the written record was proper under the law and facts of this 

case. 

On appeal appellant argued the merits of his claim and asserted that documents 

supporting that he sustained a work-related injury under the instant case assigned OWCP File 

No. xxxxxx484 were incorrectly sent to his case assigned OWCP File No. xxxxxx169. As 

previously noted, the Board does not have jurisdiction over the merits of this case.

CONCLUSION

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

written record pursuant to 5 U.S.C. § 8124.

 

6 Marilyn F. Wilson, 52 ECAB 347 (2001).

7

Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and 

Reviews of the Written Record, Chapter 2.1601.4(b)(1) (October 2011).

8

Supra note 2; see also T.M., Docket No. 15-1477 (issued October 22, 2015).

9 Daniel J. Perea, 42 ECAB 214, 221 (1990).
4

ORDER

IT IS HEREBY ORDERED THAT the March 16, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 28, 2017

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