United States Department of Labor

Employees’ Compensation Appeals Board

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A.N., Appellant

and

DEPARTMENT OF THE NAVY, MILITARY 

SEALIFT COMMAND, Virginia Beach, VA, 

Employer

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Docket No. 18-0843

Issued: December 11, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 13, 2018 appellant filed a timely appeal from a February 27, 2018 nonmerit 

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

elapsed from the last merit decision dated March 7, 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 case.

2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the February 27, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether OWCP properly denied appellant’s request for an oral hearing before 

an OWCP hearing representative as untimely filed under 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On September 2, 2003 appellant, then a 36-year-old engine utility worker, filed an 

occupational disease claim (Form CA-2) asserting that she developed back and leg pain from a 

herniated disc she sustained in the performance of her federal employment duties. She first became 

aware of her condition on March 23, 2003, but did not realize a connection to her federal 

employment until June 9, 2003. OWCP accepted the claim for lumbosacral sprain and displaced 

lumbar intervertebral disc. It authorized L5-S1 lumbar laminectomy surgeries, which were 

performed on August 28, 2003 and September 8, 2006. OWCP paid appellant wage-loss 

compensation and medical benefits on the supplemental rolls as of February 8, 2004 and on the 

periodic rolls as of June 13, 2004. 

On March 24, 2010 OWCP issued a notice of proposed reduction of compensation based 

on appellant’s ability to earn wages as a user support analyst/computer support specialist 

Dictionary of Occupational Titles (DOT #SOC # 15-1041, at the rate of $576.92 per week. 

By decision dated May 27, 2010, OWCP finalized its proposed reduction of compensation 

benefits, finding that the position of user support analyst/computer support specialist was 

medically and vocationally suitable, reasonably available and therefore representative of her wageearning capacity. 

On January 20, 2016 OWCP issued a notice proposing to modify appellant’s loss of wageearning capacity (LWEC) determination based on medical evidence establishing that she was 

capable of performing all the duties of her date-of-injury position. 

By decision dated March 7, 2016, OWCP modified the May 27, 2010 LWEC

determination to zero to reflect that appellant was capable of returning to her date-of-injury 

position. It explained that the weight of the medical evidence demonstrated that her condition had 

“materially changed and improved.”

On February 6, 2018 OWCP received appellant’s January 26, 2018 request for a telephonic 

hearing before an OWCP hearing representative regarding the March 7, 2016 decision. The

request was postmarked January 31, 2018. 

By decision dated February 27, 2018, OWCP denied appellant’s request for a telephonic 

hearing, finding that her request was untimely as it was not filed within 30 days of the March 7, 

2016 decision. It exercised its discretion and performed a limited, nonmerit review of the evidence 

following the issuance of the March 7, 2016 decision. OWCP further denied the hearing request, 

however, as the issue in the case could equally be addressed by requesting reconsideration and 

submitting new and relevant evidence. 
3

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.”

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 her request was 

postmarked January 31, 2018, more than 30 days after OWCP’s March 7, 2016 decision, it was 

untimely filed and she 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 

 

3 5 U.S.C. § 8124(b)(1).

4 20 C.F.R. § 10.615.

5

Id. at § 10.616(a); W.B., Docket No. 18-0878 (issued October 12, 2018); 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).
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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 

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

hearing request.12

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

before the Board, however, is whether OWCP properly denied her 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 her arguments regarding modification of the March 7, 2016 LWEC

determination.

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(b).

 

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

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

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

IT IS HEREBY ORDERED THAT the February 27, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 11, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board