United States Department of Labor

Employees’ Compensation Appeals Board

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B.H., Appellant

and

TENNESSEE VALLEY AUTHORITY, 

BROWNS FERRY NUCLEAR PLANT, 

Decatur, AL, Employer

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Docket No. 18-0874

Issued: October 10, 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 March 19, 2018 appellant filed a timely appeal from a March 9, 2018 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP). As more than one year has elapsed 

from the last merit decision dated June 7, 2002, to the filing of this appeal, pursuant to the Federal 

Employees’ Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 the Board lacks 

jurisdiction to review the merits of the case.1

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(b).

 

1 For final OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. 20 

C.F.R. § 501.3(d)(2). An appeal of final OWCP decisions issued on or after November 19, 2008 must be filed within 

180 days of the decision. 20 C.F.R. § 501.3(e).
2

FACTUAL HISTORY

On September 28, 2001 appellant, then a 48-year-old painter, filed an occupational disease 

claim (Form CA-2) alleging that he sustained hearing loss causally related to noise exposure in the 

course of his federal employment. He was last exposed to the conditions alleged to have resulted 

in his condition on August 10, 1987.2

By decision dated June 7, 2002, OWCP denied appellant’s occupational disease claim. It 

found that the report from the second opinion physician constituted the weight of the evidence and 

established that his hearing loss was not noise related, but instead attributable to age. 

Appellant, on January 21, 2018, requested that OWCP reopen his case. He asserted that 

multiple physicians found that he had noise-related hearing loss and questioned why OWCP’s

referral physician found age-related hearing loss given that he was not old. Appellant further 

disputed the employing establishment’s assertion that he was only exposed to noise 10 hours per 

week.

In a January 29, 2018 response, OWCP instructed appellant to follow the appeal rights 

accompanying its prior decision. 

Appellant, in an undated letter postmarked February 16, 2017, requested an oral hearing 

before an OWCP hearing representative. 

By decision dated March 9, 2018, OWCP’s hearing representative determined that 

appellant was not entitled to a hearing as a matter of right under section 8124(b) because his 

February 16, 2017 oral hearing request was not made within 30 days of its June 7, 2002 merit 

decision. She considered whether to grant a discretionary hearing, but determined that the matter 

could be equally well addressed by appellant requesting reconsideration and providing new 

evidence supporting that he sustained an employment-related condition. 

On appeal appellant relates that he received a copy of his case record in January 2018. He 

questions why OWCP’s referral physician found that he hearing loss resulted from age. Appellant 

also asserts that he had significantly greater noise exposure than the levels provided by the 

employing establishment and was exposed to noise at additional federal facilities. 

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 

 

2 Appellant advised that he first became aware of his condition and its relationship to his federal employment on 

August 20, 1987. OWCP determined that his claim was timely as the employing establishment had actual knowledge

of his hearing loss through audiograms obtained from its testing program. 
3

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

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.4 A request for either an oral hearing or a review of the written record must be sent, 

in writing, within 30 days of the date of the decision for which the hearing is sought.5 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.6

OWCP has discretion to grant or deny a request that is made after the 30-day period for 

requesting an oral hearing or review of the written record and must properly exercise such 

discretion.7

ANALYSIS

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

hearing was untimely filed. OWCP’s regulations provide that the hearing request must be sent 

within 30 days of the date of the decision for which a hearing is sought.8 As his request was 

postmarked February 16, 2017, more than 30 days after OWCP’s June 7, 2002 decision, it was 

untimely filed and he was not entitled to an oral hearing as a matter of right.9

The Board further finds that OWCP’s hearing representative properly exercised her

discretion in denying appellant’s request for an oral hearing by determining that the issue in the 

case could be addressed equally well through a request for reconsideration and the submission of 

new evidence relevant to the issue at hand.10 The Board has held that the only limitation on 

OWCP’s discretionary 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 logic and probable deduction from established facts.11 In this case, the 

evidence of record does not establish that OWCP abused its discretion in denying appellant’s 

 

3 5 U.S.C. § 8124(b)(1).

4 20 C.F.R. § 10.615.

5

Id. at § 10.616(a); G.W., Docket No. 10-0782 (issued April 23, 2010); James Smith, 53 ECAB 188 (2001).

6 See S.M., Docket No. 17-1876 (issued January 24, 2018); R.T., Docket No. 08-0408 (issued December 16, 2008).

7 20 C.F.R. § 10.616(b); see also F.M., Docket No. 18-0161 (issued May 18, 2018).

8 See supra note 6.

9 See J.A., Docket No. 17-1744 (issued January 9, 2018).

10 See D.P., Docket No. 14-0308 (issued April 21, 2014); D.J., Docket No. 12-1332 (issued June 21, 2013).

11 See R.G., Docket No. 16-0994 (issued September 9, 2016); Teresa M. Valle, 57 ECAB 542 (2006).
4

request for an oral hearing. Accordingly, the Board finds that OWCP properly denied his oral 

hearing request.12

On appeal appellant raises arguments relevant to the merits of his claim. The only issue 

before the Board, however, is whether OWCP properly denied his request for an oral hearing as 

untimely filed. As the Board lacks jurisdiction to review the underlying merits of appellant’s 

claim, it cannot review his arguments regarding his occupational disease claim.13 

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.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation 

Programs dated March 9, 2018 is affirmed.

Issued: October 10, 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

 

12 See J.O., Docket No. 17-0789 (issued May 15, 2018).

13 See G.S., Docket No. 18-0388 (issued July 19, 2018).