United States Department of Labor

Employees’ Compensation Appeals Board

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J.N., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Florence, SC, Employer

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Docket No. 18-0646

Issued: January 28, 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 February 5, 2018 appellant filed a timely appeal from a January 2, 2018 nonmerit 

decision1 of the Office of Workers’ Compensation Programs (OWCP).2 As more than 180 days 

elapsed from the last merit decision, dated July 6, 2017, to the filing of this appeal, pursuant to the 

 

1 The Board notes on the AB-1 form that appellant filed with the Board that he also sought to appeal from a July 6, 

2017 merit decision. However, the appeal was filed more than 180 days from the date of this decision. Therefore, the 

Board lacks jurisdiction to review the merits of the claim as asserted by appellant. 

2 Appellant filed a timely request for oral argument. After exercising its discretion, by order dated July 20, 2018, 

the Board denied his request, finding that the issue on appeal could adequately be addressed in a decision based on a 

review of the case record. Order Denying Request for Oral Argument, Docket No. 18-0646 (issued July 20, 2018).
2

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

lacks jurisdiction to review the merits of this case.

4

ISSUE

The issue is whether OWCP has abused its discretion when it denied appellant’s August 14, 

2017 request for a hearing as untimely filed under 5 U.S.C. § 8124(b).

FACTUAL HISTORY

This case has previously been before the Board.

5

 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On April 21, 1993 appellant, then a 56-year-old electronics technician, filed a traumatic 

injury claim (Form CA-1) alleging that he sustained a hernia and lumbar strain while climbing an 

80-foot tower to perform an annual antenna check on April 2, 1993. He stopped work that day.

OWCP initially accepted appellant’s claim for a lumbosacral strain and aggravation of an 

inguinal hernia.6In December 1993, it expanded his accepted conditions to include an L4-5 

herniated nucleus pulposus. OWCP also authorized appellant’s December 8, 1993 lumbar surgery. 

Effective June 1, 1994, appellant retired due to disability. In March 1995, OWCP placed him on 

the periodic compensation rolls. 

In January 2017, appellant contacted OWCP regarding his eligibility to receive attendant 

services. In a January 25, 2017 development letter, it informed him of the requirement(s) for 

attendant services and requested additional information from both him and his treating physician. 

In an April 10, 2017 report, Dr. Jeffrey S. Lindaberry, a family practitioner, advised that 

appellant’s chronic back pain was due to his work injury and subsequent lumbar surgery.7 He 

opined that appellant’s current findings included chronic back pain and mild dementia which 

would require “lifelong” assistance with activities of daily living and his medications. 

 

3 5 U.S.C. § 8101 et seq.

4 The Board notes that appellant submitted additional evidence on appeal. 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.

5 Docket No. 05-0954 (issued August 15, 2005).

6 On August 11, 1993 appellant underwent surgery to repair his hernia. 

7 The report was initially submitted on February 7, 2017 by Jessica Thasitis, a family nurse practitioner. 

Dr. Lindaberry subsequently reviewed the report and countersigned it on April 10, 2017. 
3

OWCP’s district medical adviser (DMA) reviewed the request for attendant services and,

in a May 25, 2017 report, advised that an attendant was not medically necessary to assist with daily 

personal needs. He noted that with respect to appellant’s accepted lumbar conditions, the attendant 

was not medically necessary, but that he may need the services of an attendant due to his mental 

conditions. The DMA noted that there was no objective evidence that appellant’s accepted 

condition would require a specific attendant to be paid for on a work-related basis. He

recommended against approving appellant’s request for an attendant because the medical problems 

creating any such need for an attendant were not work related. 

By decision dated July 6, 2017, OWCP denied authorization for attendant services. It noted 

that the DMA report of May 25, 2017 concluded that appellant had multiple nonwork-related 

medical problems and that these problems were more likely to be the cause of his need for an 

attendant, and that, as such, the DMA recommended against approval of attendant services. 

OWCP found that the evidence of record was insufficient to establish that the services of an 

attendant were necessary within the meaning of FECA. 

By form dated July 17, 2017, appellant requested an oral hearing before an OWCP hearing 

representative. The envelope containing the form was postmarked August 14, 2017. 

By decision dated January 2, 2018, OWCP’s Branch of Hearings and Review denied 

appellant’s hearing request as untimely filed. The hearing representative noted that OWCP had 

issued its decision on July 6, 2017, while appellant’s hearing request was postmarked August 14, 

2017, more than 30 days after OWCP’s decision. He found that appellant was not entitled to a 

hearing as a matter of right. The hearing representative also considered whether to grant appellant 

a discretionary hearing, but determined that the issue in this case could equally well be addressed 

by a requesting reconsideration before OWCP.

LEGAL PRECEDENT

Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title 

[relating to reconsideration], 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.”

8

Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a 

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

between two formats: An oral hearing or a review of the written record.”

9

 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 the hearing is sought.10 However, OWCP has discretion to grant or 

 

8 5 U.S.C. § 8124(b)(1).

9 20 C.F.R. § 10.615.

10 Id. at § 10.616(a).
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deny a request that is made after this 30-day period.11 In such a case, it will determine whether to 

grant a discretionary hearing and, if not, will so advise the claimant with reasons.12

ANALYSIS

The Board finds that OWCP did not abuse its discretion by denying appellant’s August 14, 

2017 request for a hearing as untimely filed under 5 U.S.C. § 8124(b).

Appellant had 30 days from OWCP’s July 6, 2017 merit decision to request a hearing 

before the Branch of Hearings and Review. He requested an oral hearing by appeal request form 

dated July 17, 2017 and postmarked August 14, 2017. As the postmark date was more than 30 

days after OWCP’s July 6, 2017 decision, appellant was not entitled to an oral hearing as a matter 

of right.13 Section 8124(b)(1) is unequivocal on the time limitation for requesting a hearing.14

Although appellant was not entitled to an oral hearing as a matter of right, OWCP’s Branch 

of Hearings and Review exercised its discretion in determining whether to grant his request,

despite its untimely nature. In denying a discretionary hearing, the hearing representative found 

that the issue in the case could equally well be addressed by requesting reconsideration before 

OWCP and submitting new evidence. Because reconsideration exists as an alternative appeal right 

to address the issue raised by OWCP’s July 6, 2017 decision, the Board finds that OWCP did not 

abuse its discretion in denying appellant’s untimely hearing request.15

CONCLUSION

The Board finds that OWCP has not abused its discretion when it denied appellant’s 

August 14, 2017 hearing request as untimely filed pursuant to 5 U.S.C. § 8124(b).

 

11 G.W., Docket No. 10-0782 (issued April 23, 2010); James Smith, 53 ECAB 188, 191-92 (2001).

12 James Smith, id.

13 Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis 

of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings 

and Reviews of the Written Record, Chapter 2.1601.4a (October 2011). 

14 Supra note 8; see William F. Osborne, 46 ECAB 198 (1994).

15 See Gerard F. Workinger, 56 ECAB 259 (2005).
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ORDER

IT IS HEREBY ORDERED THAT the January 2, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 28, 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