United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.V., Appellant

and

DEPARTMENT OF THE NAVY, MILITARY 

SEALIFT COMMAND, Norfolk, VA, Employer

__________________________________________

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Docket No. 18-1473

Issued: April 23, 2019

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 July 23, 2018 appellant filed a timely appeal from a January 29, 2018 merit decision,

and March 23 and June 26, 2018 nonmerit decisions, of the Office of Workers’ Compensation 

Programs (OWCP).1 Pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.3

 

1 Appellant timely requested oral argument before the Board. By order dated December 6, 2018, the Board 

exercised its discretion and denied the request as the matter could be adequately addressed based on a review of the 

case record. Order Denying Oral Argument, Docket No. 18-1473 (issued December 6, 2018).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the June 26, 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

ISSUES

The issues are: (1) 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); 

(2) whether appellant has met his burden of proof to establish a traumatic injury in the performance 

of duty on November 22, 2017, as alleged; and (3) whether OWCP properly denied appellant’s 

request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On December 15, 2017 appellant, then a 46-year-old engine utility man, filed a traumatic 

injury claim (Form CA-1) alleging that, on November 22, 2017, he fell onto his knee when sending 

a line to another ship and sustained right knee strain while in the performance of duty.

In support of his claim, appellant provided a November 30, 2017 medical record which 

indicated that he believed that he fell onto his right knee at work a few days prior, but he could not 

recall the specific incident, location, or date.

In a development letter dated December 26, 2017, OWCP notified appellant that the 

evidence of record was insufficient to establish his claim. It advised him of the type of medical 

evidence required. OWCP afforded appellant 30 days to provide the requested evidence.

By decision dated January 29, 2018, OWCP denied appellant’s traumatic injury claim,

finding that he had not submitted sufficient evidence to establish that the employment incident 

occurred as alleged. It also noted that the medical documentation of record was insufficient to 

establish that a diagnosed medical condition causally related to the alleged work injury or event.

In a report dated January 24, 2018, Dr. Gabriel Dassa, an osteopath and a Board-certified 

orthopedic surgeon, diagnosed sprain of the medial collateral ligaments of both knees. On 

February 7 and March 21, 2018 he diagnosed bucket-handle tear of the lateral meniscus of the 

right knee. On February 9, 2018 Dr. Dassa completed a New York workers’ compensation form 

report and listed appellant’s date of injury as November 22, 2017. He reported that appellant 

sustained a fall while at work and sustained injury to his right knee. Dr. Dassa checked a box 

marked “yes” indicating that the incident that appellant described was the competent medical cause 

of this injury/illness.

On March 2, 2018 appellant requested an oral hearing before an OWCP hearing 

representative. He provided a January 21, 2018 magnetic resonance imaging (MRI) scan of his 

right knee and a January 23, 2018 MRI scan of his left knee. 

On March 13, 2018 appellant also requested reconsideration of the denial of his claim.

By decision dated March 23, 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 

March 2, 2018 oral hearing request was not made within 30 days of its January 29, 2018 merit

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

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

evidence supporting an employment-related incident.
3

On May 7, 2018 OWCP informed appellant by letter that his claim was denied based on 

conflicting factual information regarding his alleged employment incident. It afforded him an 

additional 20 days to provide factual evidence. 

On June 5, 2018 appellant provided a May 2, 2018 note from Dr. Dassa diagnosing tear of 

the lateral meniscus of the right knee.

In a June 6, 2018 note, Dr. Arnold Wilson, a Board-certified orthopedic surgeon, noted

appellant’s history of falling while performing his duties as a merchant marine on November 22, 

2017 and sustaining injuries to both knees. Appellant was feeding a line to another ship, the 

receiving ship could not stay on course, and the line cut without warning causing appellant to fall 

on deck of his ship. Dr. Wilson diagnosed right knee lateral meniscus tear and recommended 

arthroscopic surgery to both knees.

By decision dated June 26, 2018, OWCP denied appellant’s request for reconsideration

without conducting a merit review. It noted that he had not submitted a statement describing how 

the incident occurred. OWCP further noted that appellant had submitted medical evidence in 

support of his request for reconsideration, but that in the absence of a statement from him 

describing the factual circumstances of the injury and clarifying the discrepancies in the factual 

accounts of the injury, medical documentation was irrelevant.

LEGAL PRECEDENT -- ISSUE 1

Section 8124 of FECA, concerning a claimant’s entitlement to a hearing before an OWCP 

hearing representative, provides that a claimant is entitled to a hearing before an OWCP 

representative when a request is made 30 days after issuance of an OWCP final decision.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 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.7

 

4 5 U.S.C. § 8124(b)(1).

5 20 C.F.R. § 10.615.

6

Id. at § 10.616(a); B.H., Docket No. 18-0874 (issued October 10, 2018); James Smith, 53 ECAB 188 (2001).

7 B.H., id.
4

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.8

ANALYSIS -- ISSUE 1

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.9 As his request was dated 

March 2, 2018, more than 30 days after OWCP’s January 29, 2018 decision, it was untimely filed 

and he was therefore not entitled to an oral hearing as a matter of right.10

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.11 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.12 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 his oral 

hearing request.13

LEGAL PRECEDENT -- ISSUE 2

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA,14 that an injury was sustained in the performance of duty as 

alleged, and that any disability or medical condition for which compensation is claimed is causally 

related to the employment injury.15 These are the essential elements of each and every 

 

8 20 C.F.R. § 10.616(b); Id.

9 See supra note 7.

10 Id.

11 Id.

12 Id.; Teresa M. Valle, 57 ECAB 542 (2006).

13 See supra note 7.

14 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

15 J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).
5

compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an 

occupational disease.16 To determine whether a federal employee has sustained a traumatic injury 

in the performance of duty, it first must be determined whether fact of injury has been established. 

Generally, fact of injury consists of two components that must be considered in conjunction with 

one another. The first component is whether the employee actually experienced the employment 

incident that allegedly occurred.

17

 The second component is whether the employment incident 

caused a personal injury.18

An employee’s statement that an injury occurred at a given time and in a given manner is 

of great probative value and will stand unless refuted by strong or persuasive evidence.19 

Moreover, an injury does not have to be confirmed by eyewitnesses.20 The employee’s statement, 

however, must be consistent with the surrounding facts and circumstances and his subsequent 

course of action. An employee has not met his or her burden of proof to establish the occurrence 

of an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the 

validity of the claim. Circumstances such as late notification of injury, lack of confirmation of 

injury, continuing to work without apparent difficulty following the alleged injury, and failure to 

obtain medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s 

statement in determining whether a prima facie case has been established.21 

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met his burden of proof to establish a traumatic 

injury in the performance of duty on November 22, 2017, as alleged.

On his December 15, 2017 traumatic injury claim form, appellant indicated that he fell on 

his right knee while sending a line to another ship on November 22, 2017 while in the performance 

of duty. He also submitted a medical report dated November 30, 2017 which indicated that he 

believed that he fell onto his right knee a few days before at work, but he could not recall the 

specific incident, location, or date. By letter dated December 26, 2017, OWCP asked appellant to 

provide a more detailed description as to how the injury occurred. He did not provide additional 

factual evidence in response to this letter.

The Board finds that appellant has not provided sufficient detail to establish that a traumatic 

incident occurred as alleged. Appellant’s statement on his claim form does not comport with the 

history of injury provided by his medical examiner on November 30, 2017. He also failed to 

 

16 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).

17 M.E., Docket No. 18-0553 (issued November 5, 2018).

18 Id.; John J. Carlone, 41 ECAB 354 (1989). 

19 M.E., supra note 17.

20 Id.

21 Id.
6

provide a narrative statement detailing the traumatic incident prior to the issuance of OWCP’s 

denial of his claim on January 29, 2018. By failing to describe the employment incident and 

circumstances surrounding his alleged injury, the Board finds that the evidence of record is 

insufficient to establish that the traumatic injury occurred on November 22, 2017 as alleged.

As such, it is unnecessary to address the medical evidence regarding causal relationship.22

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

LEGAL PRECEDENT -- ISSUE 3

Section 8128(a) of FECA23 vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation either under its own authority or on application by 

a claimant. Section 10.608(b) of OWCP’s regulations provide that a timely request for 

reconsideration may be granted if OWCP determined that the claimant has present evidence and/or 

argument that meets at least one of the standards described in section 10.606(b)(3).24 This section 

provides that the application for reconsideration must be submitted in writing and set forth 

arguments and contain evidence that either: (1) shows that OWCP erroneously applied or 

interpreted a specific point of law; (2) advances a relevant legal argument not previously 

considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.25 Section 10.608(b) provides that when a request for reconsideration is 

timely, but fails to meet at least one of the requirements, OWCP will deny the application for 

reconsideration without reopening the case for review on the merits.26

A request for reconsideration must also be received by OWCP within one year of the date

of OWCP’s decision for which review is sought.27 For its decisions issued on or after August 29, 

2011, the date of the application for reconsideration is the “received date” as recorded in the 

integrated Federal Employees’ Compensation System (iFECS).28

 

22 Id.

23 5 U.S.C. § 8128(a). Under section 8128 of FECA, the Secretary of Labor may review an award for or against 

payment of compensation at any time on his own motion or on application.

24 20 C.F.R. § 10.608(b).

25 Id. at § 10.606(b)(3).

26 Id. at § 10.608(b).

27 Id. at § 10.607(a).

28 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). See 

also R.R., Docket No. 18-1044 (issued October 24, 2018); C.B., Docket No. 13-1732 (issued January 28, 2014).
7

ANALYSIS -- ISSUE 3

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

merits of his claim pursuant to 5 U.S.C. § 8128(a).

The Board finds that appellant has not shown that OWCP erroneously applied or 

interpreted a specific point of law. Moreover, appellant has not advanced a relevant legal argument 

not previously considered. As such, he is not entitled to a review of the merits of his claim based 

on the first and second above-noted requirements under section 10.606(b)(3). 

OWCP denied appellant’s claim as it determined that he had not established that the 

employment incident occurred as alleged. On reconsideration appellant provided a series of 

medical reports, which cannot alone establish the factual basis for appellant’s claim. As noted, the 

submission of evidence or argument which does not address the particular issue involved does not 

constitute a basis for reopening a claim.29 Thus appellant he is not entitled to a review of the merits 

of his claim based on the third above-noted requirement under section 10.606(b)(3). 

The Board finds that, as appellant has not satisfied any of the three requirements under 

section 10.606(b)(3) to warrant further merit review of his claim, OWCP properly denied his 

request for reconsideration.

CONCLUSION

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

hearing was untimely filed. The Board further finds that appellant has not met his burden of proof 

to establish a traumatic injury in the performance of duty on November 22, 2017, as alleged. The 

Board also finds that OWCP properly denied appellant’s request for reconsideration of the merits 

of his claim pursuant to 5 U.S.C. § 8128(a). 

 

29 M.E., supra note 17.
8

ORDER

IT IS HEREBY ORDERED THAT the June 26, March 23, and January 29, 2018 

decisions the Office of Workers’ Compensation Programs are affirmed.

Issued: April 23, 2019

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