United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.E., Appellant 

and 

U.S. POSTAL SERVICE, BULK MAIL 

CENTER, Memphis, TN, Employer 

__________________________________________ 

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Docket No. 17-1066 

Issued: September 12, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 17, 2017 appellant filed a timely appeal from an April 5, 2017 nonmerit 

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

elapsed from September 12, 2016, the date of the most recent merit decision, 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 appellant’s claim.2

ISSUE 

The issue is whether 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. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that on appeal, appellant submitted new evidence. The Board is precluded from reviewing 

evidence which was not before OWCP at the time it issued its final decision. Thus, the Board may not consider the 

new evidence. See 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On November 5, 2004 appellant, then a 53-year-old mail clerk, filed an occupational 

disease claim (Form CA-2), alleging that she developed right elbow and left shoulder conditions 

as a result of the repetitive motions required by her federal employment duties. She also noted 

that she had been placed in a job that was outside of her medical restrictions. Appellant did not 

stop work. On November 10, 2004 OWCP accepted her claim for epicondylitis of the right 

elbow and tendinitis of the left shoulder. Appellant received compensation payments on the 

periodic rolls from July 28 until September 21, 2013.3

On August 5, 2016 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits, based on her attending physician’s opinion that her epicondylitis of the 

right elbow and tendinitis of the left shoulder had resolved with no shoulder pain and no 

objective medical evidence of residuals. On September 12, 2016 it finalized its decision to 

terminate appellant’s wage-loss compensation and medical benefits. 

By letter dated March 5, 2017, received by OWCP on March 17, 2017, appellant 

requested an oral hearing before a representative of the Branch of Hearings and Review. She 

argued that she had several other claims accepted by OWCP, and that she still experienced 

problems with her left shoulder. 

By decision dated April 5, 2017, OWCP’s hearing representative denied appellant’s 

hearing request as untimely filed. She noted that appellant’s hearing request was dated March 5, 

2017, which was more than 30 days after OWCP’s September 12, 2016 decision. The hearing 

representative found that appellant was therefore not entitled to a hearing as a matter of right. 

She also considered whether to grant appellant a discretionary hearing, but decided that the issue 

in this case could equally well be addressed by appellant requesting reconsideration before 

OWCP and submitting relevant evidence not previously considered. 

LEGAL PRECEDENT 

Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an 

OWCP hearing representative, provides: Before review under section 8128(a) of this title, 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.4 A hearing is a 

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

choose between two formats: an oral hearing or a review of the written record. In addition to the 

evidence of record, the claimant may submit new evidence to the hearing representative.5 A 

request for either an oral hearing or a review of the written record must be sent, in writing, within 

 3

 The record indicates that appellant has other accepted OWCP claims for injuries sustained in her federal 

employment and was receiving compensation benefits under a December 27, 2004 claim, OWCP File No. 

xxxxxx218. 

4

 5 U.S.C. § 8124(b)(1). 

5

 20 C.F.R. § 10.615. 
3

30 days of the date of the decision for which the hearing is sought.6 A claimant is not entitled to 

a hearing or a review of the written record if the request is not made within 30 days of the date of 

the decision. 

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

of FECA, has the power to hold hearings in certain circumstances where no legal provision was 

made for such hearings and that OWCP must exercise this discretionary authority in deciding 

whether to grant a hearing.7 OWCP procedures, which require it to exercise its discretion to 

grant or deny a hearing when the request is untimely or made after reconsideration, are a proper 

interpretation of FECA and Board precedent.8

ANALYSIS 

As noted above, the Board does not have jurisdiction over the merits of this case. The 

Board finds that appellant was not entitled, as a matter of right, to an oral hearing before an 

OWCP hearing representative as her request for hearing was untimely filed. 

The Board notes that appellant’s request for a hearing, was dated March 5, 2017 and 

received by OWCP on March 17, 2017. As the March 5, 2017 request was made and received 

more than 30 days after the September 30, 2016 decision, it was untimely. Therefore, appellant 

was not entitled to a hearing as a matter of right.9

 

Although appellant’s request for hearing before an OWCP hearing representative was 

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

discretion.10

In its April 5, 2017 decision, OWCP properly considered the matter in relation to the 

issue involved and that additional evidence and argument could be submitted with a request for 

reconsideration. 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.11 In this case, the evidence of record does not 

indicate that OWCP abused its discretion by denying appellant’s request for an oral hearing. 

 6 James Smith, 53 ECAB 188 (2001); 20 C.F.R. § 10.616(a). 

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

8 Teresa M. Valle, 57 ECAB 542 (2006); E.R., Docket No. 17-742 (issued June 16, 2017). 

9 W.C., Docket No. 17-0420 (issued June 8, 2017). 

10 See R.T., Docket No. 08-408 (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). 

11 Samuel R. Johnson, 51 ECAB 612 (2000). See also supra note 8. 
4

The Board finds that the hearing representative properly exercised her discretionary 

authority in denying appellant’s request for a hearing.12

CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the April 5, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 12, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 12 J.H., Docket No. 17-0029 (issued March 2, 2017).