United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.V., Appellant 

and 

DEPARTMENT OF THE INTERIOR, FISH & 

WILDLIFE SERVICE, Rio Grande, PR, 

Employer 

__________________________________________ 

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Docket No. 16-1877 

Issued: March 7, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 23, 2016 appellant filed a timely appeal from a July 25, 2016 nonmerit 

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

elapsed since January 27, 2016, the date of the most recent OWCP 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 over the merits of this case.2

ISSUE 

The issue is whether OWCP properly denied appellant’s request for a review of the 

written record. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board’s jurisdiction is limited to the evidence that was before OWCP at the time it issued its final decision. 

Therefore, the Board is unable to review evidence submitted by appellant on appeal; see 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On August 31, 2009 appellant, then a 41-year-old wildlife biologist, filed a traumatic 

injury claim (Form CA-1) alleging that on August 27, 2009 he fell and injured his right knee 

while conducting a parrot survey. He stopped work on August 28, 2009. OWCP accepted 

appellant’s claim for right knee medial meniscal tear and authorized arthroscopic surgery on 

December 14, 2009 and August 27, 2012. 

Appellant was treated by Dr. Javier Delgado-Candelario, a Board-certified orthopedic 

surgeon, from August 28 to December 14, 2009, for the right knee injury. Dr. DelgadoCandelario noted appellant’s history was significant for anterior cruciate ligament (ACL) 

reconstruction in 1996. Appellant reported a blunt trauma to the right knee while performing his 

work duties. Dr. Delgado-Candelario noted an October 27, 2009 magnetic resonance imaging 

(MRI) scan revealed a meniscal tear and possible retear of the reconstructed ACL. On 

December 14, 2009 he performed a partial medial and lateral meniscectomy, debridement, and 

chondroplasty and diagnosed right knee medial and lateral meniscal tears and chondromalacia. 

Dr. Delgado-Candelario noted that appellant was disabled for six to eight weeks and could return 

to work with a knee brace. 

Dr. Delgado-Candelario noted that appellant continued to experience pain, inflammation, 

and dysfunction of the right knee and on August 27, 2012 performed an arthroscopic partial 

medial meniscectomy, micro fracture, debridement, and chondroplasty of the right knee. He 

diagnosed right knee medial meniscal tear and patellofemoral chondromalacia. 

On July 23, 2015 appellant filed a recurrence of disability claim (Form CA-2a) alleging 

that he never fully recovered from his right knee injury. He indicated that he had constant pain 

and inflammation which limited his right knee function. 

By letter dated December 17, 2015, OWCP advised appellant of the type of factual and 

medical evidence needed to establish his recurrence claim. No further evidence was received. 

In a decision dated January 27, 2016, OWCP denied appellant’s claim for a recurrence of 

disability as he failed to establish a basis for his recurrence claim. 

In a letter to OWCP dated February 3, 2016 and received on February 16, 2016, appellant 

indicated that he had requested a comprehensive narrative report from Dr. Delgado-Candelario. 

Appellant indicated that Dr. Delgado-Candelario would submit a report which addressed 

objective findings, diagnostic studies, diagnosis codes and a rationalized opinion explaining the 

relationship of his current condition to the original injury. 

OWCP received reports from Dr. Delgado-Candelario dated October 27, 2009 to 

October 8, 2013 which noted appellant’s treatment for chronic right knee inflammation and pain. 

Appellant also submitted June 21, 2012 and September 20, 2013 MRI scans of the right knee 

which revealed ACL dysfunction, truncated medial meniscus, and grade 3 chondromalacia of the 

medial joint compartment. 

In a letter dated February 29, 2016, OWCP acknowledged having received appellant’s 

February 3, 2016 letter on February 26, 2016. However, it advised appellant that the letter did 

not state which specific appeal right he was requesting. OWCP instructed him to refer to the 
3

appeal rights that were provided with the decision rendered in his claim and choose a specific 

appeal in writing. 

On March 1, 2016 OWCP received an appeal request form dated February 3, 2016 in 

which appellant requested a review of the written record. The record included a record of 

mailing on February 26, 2016. Appellant submitted notes from Dr. Delgado-Candelario dated 

October 27, 2009 to May 12, 2015. Also submitted were prescription notes from 

Dr. Delgado-Candelario dated September 11, 2012 to September 17, 2013. 

In a decision dated July 25, 2016, OWCP denied appellant’s request for a review of the 

written record. It found that his request was untimely filed. Appellant was informed that his 

case had been considered in relation to the issues involved and that the request was further 

denied as it could equally be addressed by requesting reconsideration from OWCP and 

submitting evidence not previously considered. 

LEGAL PRECEDENT 

Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied 

with a decision of the Secretary ... is entitled, on request made within 30 days after the date of 

the issuance of the decision, to a hearing on his claim before a representative of the Secretary.”3

 

Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA 

provides that a claimant shall be afforded a choice of an oral hearing or a review of the written 

record by a representative of the Secretary.4 A claimant is entitled to a hearing or review of the 

written record as a matter of right only if the request is filed within the requisite 30 days as 

determined by postmark or other carrier’s date marking and before the claimant has requested 

reconsideration.5 Although there is no right to a review of the written record or an oral hearing if 

not requested within the 30-day time period, OWCP may within its discretionary powers grant or 

deny appellant’s request and must exercise its discretion.6 

ANALYSIS 

Appellant requested a review of the written record in an appeal request form dated 

February 3, 2016 and received on March 1, 2016. Section 10.616 of the federal regulations 

provides: “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.”7 The case 

record contains a packing slip from the carrier reflecting that appellant’s request was sent on 

February 26, 2016, which is 30 days from issuance of the January 27, 2016 decision. The 

packing slip further reflects receipt on April 29, 2016. The 30-day time period for determining 

the timeliness of appellant’s request commences on the first day following the issuance of 

 3

 5 U.S.C. § 8124(b)(1). 

4

 20 C.F.R. § 10.615. 

5 Id. at § 10.616(a). 

6 Delmont L. Thompson, 51 ECAB 155 (1999); Eddie Franklin, 51 ECAB 223 (1999). 

7 Supra note 5. 
4

OWCP’s decision.8

 As OWCP’s decision was issued on January 27, 2016, the 30-day period for 

requesting a hearing began to run on January 28, 2016 and the last or 30th day was 

February 26, 2016. Since appellant’s request for a review of the written record was sent on 

February 26, 2016, it was timely as it fell on the 30th day after the issuance of OWCP’s decision. 

Accordingly, he is entitled to a review of the written record as a matter of right. 

On remand OWCP should treat as timely appellant’s February 26, 2016 request for a 

review of the written record. It should conduct a review of the written record as requested.9 

Following this and such other development as necessary, OWCP shall issue an appropriate merit 

decision. 

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s request for review of the 

written record of the January 27, 2016 decision. 

ORDER 

IT IS HEREBY ORDERED THAT the July 25, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for further proceedings consistent 

with this decision of the Board. 

Issued: March 7, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 8 See Donna A. Christley, 41 ECAB 90, 91 (1989). See also John B. Montoya, 43 ECAB 1148, 1151-52 (1992). 

9

 20 C.F.R. § 10.618.