United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.B., Appellant

and

U.S. POSTAL SERVICE, NETWORK 

DISTRIBUTION CENTER, Atlanta, GA, 

Employer

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Docket No. 18-0878

Issued: October 12, 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 March 19, 2018 appellant filed a timely appeal from an October 20, 2017 nonmerit 

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

elapsed from the last merit decision, dated August 31, 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 over the merits of this case.

ISSUE

The issue is whether OWCP has abused its discretion when it denied appellant’s October 5, 

2017 request for review of the written record as untimely filed under 5 U.S.C. § 8124(b).

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On July 4, 2017 appellant, then a 52-year-old mail handler, filed a traumatic injury claim 

(Form CA-1) alleging that he sustained a left shoulder contusion earlier that morning when he was

thrown from a riding pallet jack. He allegedly fell from the pallet jack to the floor, striking his left 

shoulder and left knee. Appellant was seen at a hospital emergency department on the date of 

injury.

2

 A left shoulder x-ray was normal and Dr. Kevin Washington, an emergency medicine 

specialist, discharged appellant later that same day with a diagnosis of left shoulder and left knee 

contusions.

In a July 19, 2017 development letter, OWCP requested that appellant submit additional 

medical evidence in support of his claim. It afforded him 30 days to submit the requested medical 

evidence. 

OWCP subsequently received a July 13, 2017 report from Dr. Sohaib A. Khalid, a Boardcertified family practitioner, who diagnosed left shoulder joint pain, left knee joint pain, and knee 

ligament sprain. Dr. Khalid referred appellant for physical therapy.

By decision dated August 31, 2017, OWCP denied appellant’s traumatic injury claim, 

finding that the evidence of record was insufficient to establish a medical diagnosis in connection 

with the July 4, 2017 employment incident. 

By appeal request form dated October 3, 2017, and postmarked October 5, 2017, appellant 

requested a review of the written record by a representative of OWCP’s Branch of Hearings and 

Review. He also submitted medical evidence dated July 4 and 13, 2017, and physical therapy 

treatment records dated August 4 through October 4, 2017. 

By decision dated October 20, 2017, OWCP denied appellant’s request for a review of the 

written record, finding that his request was untimely because it was not made within 30 days of its 

August 31, 2017 decision. It further indicated that it had exercised its discretion and denied the 

request for the reason that the relevant issue of the case could be addressed by requesting 

reconsideration and submitting evidence not previously considered by OWCP.

LEGAL PRECEDENT

Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title 

[relating to reconsideration], a claimant for compensation not satisfied with a decision of the 

Secretary under subsection (a) of this section 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.”

3

 

2 On July 17, 2017 OWCP received a completed authorization for examination and/or treatment (Form CA-16) 

dated July 4, 2017.

3 5 U.S.C. § 8124(b)(1).
3

Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a 

review of an adverse decision by a hearing representative. Initially, the claimant can choose 

between two formats: An oral hearing or a review of the written record.”

4

 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.5 OWCP has discretion, however, to grant or 

deny a request that is made after this 30-day period.6 In such a case, it will determine whether to 

grant a discretionary hearing and, if not, will so advise the claimant with reasons.7

ANALYSIS

Appellant had 30 days from OWCP’s August 31, 2017 merit decision to request a hearing 

before the Branch of Hearings and Review. Appellant submitted a request for a review of the 

written record by appeal request form dated October 3, 2017, and postmarked October 5, 2017. 

As the postmark date was more than 30 days after the August 31, 2017 decision, appellant was not 

entitled to a review of the written record as a matter of right.8 Section 8124(b)(1) is unequivocal 

on the time limitation for requesting a hearing.9

Although appellant was not entitled to a review of the written record as a matter of right, 

OWCP’s Branch of Hearings and Review exercised its discretion in determining whether to grant 

appellant’s request despite its untimely nature. In denying a discretionary hearing, the hearing 

representative found that the issue in the case could be equally well addressed by requesting 

reconsideration before OWCP and submitting new evidence establishing that appellant sustained 

an injury as defined under FECA. Because reconsideration exists as an alternative appeal right to 

address the issues raised by OWCP’s August 31, 2017 decision, the Board finds that OWCP did 

not abuse its discretion in denying appellant’s untimely request for review of the written record.

10

CONCLUSION

The Board finds that OWCP has not abused its discretion when it denied appellant’s 

October 5, 2017 request for review of the written record as untimely filed under 5 U.S.C. 

§ 8124(b).

 

4 20 C.F.R. § 10.615.

5

Id. at § 10.616.

6 See G.W., Docket No. 10-782 (issued April 23, 2010); see also Herbert C. Holley, 33 ECAB 140 (1981).

7

Id.; see also Rudolph Bermann, 26 ECAB 354 (1975).

8 Under OWCP regulations and procedures, the timeliness of a request for a hearing is determined on the basis of 

the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings 

and Reviews of the Written Record, Chapter 2.1601.4a (October 2011). If the postmark is not legible, the request will 

be deemed timely unless OWCP has kept evidence of date of delivery on the record reflecting that the request is 

untimely. Id.

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

10 See Gerard F. Workinger, 56 ECAB 259 (2005).
4

ORDER

IT IS HEREBY ORDERED THAT the October 20, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.11

Issued: October 12, 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

 

11 The record contains a Form CA-16 dated July 4, 2017 and signed by the employing establishment. A properly 

executed CA-16 form can be the basis of a contractual agreement for payment of medical expense, even if the claim 

is not accepted. Upon return of the case record, OWCP should address this issue. See 20 C.F.R. § 10.300; Val D. 

Wynn, 40 ECAB 666 (1989); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination 

and Treatment, Chapter 3.300.3(a)(3) (February 2012).