United States Department of Labor

Employees’ Compensation Appeals Board

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K.S., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Oakland, CA, Employer

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Docket No. 18-0029

Issued: May 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 October 3, 2017 appellant filed a timely appeal from a September 12, 2017 nonmerit 

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

elapsed from the last merit decision of OWCP, dated August 26, 2015, 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 record provided to the Board includes evidence received after issuance of the September 12, 2017 decision. 

The Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision. 

Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. 

§ 501.2(c)(1).
2

ISSUE

The issue is whether OWCP’s hearing representative properly denied appellant’s request 

for an oral hearing as untimely filed.

FACTUAL HISTORY

On July 8, 2015 appellant, then a 56-year-old transportation security officer, filed an 

occupational disease claim (Form CA-2) alleging right heel pain, which arose on or about 

March 1, 2015. She explained that it hurt to stand after sitting, and the pain, which radiated up her 

leg and pulled on her heel, wouldn’t subside until after two to three minutes of walking.

In a July 15, 2015 report, Dr. Adric H. Huynh, a Board-certified family practitioner, noted 

that appellant complained of right heel pain that had been ongoing for several months, and that her 

pain was due to her job at the employing establishment. He also noted a prior history of left heel 

or Achilles surgical repair. Dr. Huynh examined appellant and obtained a right heel (calcaneus) 

x-ray.3 He diagnosed right heel pain and right Achilles tendinitis.

On July 21, 2015 the employing establishment controverted appellant’s claim due to a lack 

of sufficient medical evidence. It also noted that appellant previously filed a similar claim, 

assigned OWCP File No. xxxxxx152, for injury to her left foot, and that she had been on modified 

duty for that injury since 2011, with limited walking and standing.

In a July 24, 2015 development letter, OWCP requested additional factual and medical 

evidence in support of appellant’s claim. It specifically noted her prior claim, File No. xxxxxx152,

accepted for left Achilles tendinitis, and the limited-duty assignment that appellant had been 

performing since 2011. OWCP asked that she describe in detail the employment-related activities 

that she believed caused or contributed to her current claimed condition. It afforded her 30 days 

to submit the requested information. No response was received.

By decision dated August 26, 2015, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient to establish that the employment event(s) occurred as alleged.

On an appeal request form dated July 18, 2017, and postmarked July 19, 2017, appellant 

requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

By decision dated September 12, 2017, OWCP’s hearing representative denied appellant’s 

request. She noted that appellant’s request was postmarked July 19, 2017, which was more than 

30 days after OWCP’s August 26, 2015 decision. The hearing representative, therefore, found that 

the request was untimely. She also considered whether to grant a discretionary hearing, but denied 

such a hearing because the issue could equally well be addressed by appellant requesting 

reconsideration before OWCP and submitting new and relevant evidence not previously 

considered.

 

3 A July 15, 2015 right calcaneus x-ray revealed no acute right calcaneal osseous abnormalities. The x-ray report 

also noted that the site of pain corresponded to “posterior calcaneal enthesophyte, attachment of Achilles tendon.”
3

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 [or her] claim before a representative of the 

Secretary.”

4

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

FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the 

written record.5 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.6 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.7 

ANALYSIS

Appellant requested an oral hearing on an appeal request form dated July 18, 2017 and 

postmarked on July 19, 2017. As this was more than 30 days after the August 26, 2015 OWCP 

decision, the hearing request was untimely filed. Section 8124(b)(1) is unequivocal on the time 

limitation for requesting a hearing.8 Thus, the Board finds that appellant was not entitled to an 

oral hearing as a matter of right.

OWCP’s hearing representative has the discretionary power to grant an oral hearing when 

a claimant is not entitled to one as a matter of right. She exercised her discretion in the 

September 12, 2017 decision, finding that appellant’s issue could equally-well be addressed by 

requesting reconsideration before OWCP and submitting additional evidence. This basis for 

denying appellant’s request for a hearing is a proper exercise of the hearing representative’s 

discretionary authority.9 Accordingly, the Board finds that OWCP’s hearing representative 

properly denied appellant’s request for an oral hearing as it was untimely filed.

CONCLUSION

The Board finds that OWCP’s hearing representative properly denied appellant’s request 

for an oral hearing as untimely filed.

 

4 5 U.S.C. § 8124(b)(1).

5 20 C.F.R. §§ 10.616, 10.617.

6

Id. at § 10.616(a).

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

8 William F. Osborne, 46 ECAB 198 (1994).

9 Mary B. Moss, 40 ECAB 640, 647 (1989).
4

ORDER

IT IS HEREBY ORDERED THAT the September 12, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 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