United States Department of Labor

Employees’ Compensation Appeals Board

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C.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Lawrenceville, GA, Employer

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Docket No. 18-1769

Issued: April 5, 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 September 4, 2018 appellant filed a timely appeal from a March 23, 2018 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

elapsed from the last merit decision dated November 13, 2017, to the filing of this appeal, pursuant 

to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board lacks jurisdiction over the merits of this case.3

 

1 The Board notes that on September 25, 2018 OWCP issued a decision denying modification of a November 13, 

2017 decision, denying appellant’s claim for compensation for the period July 22 to August 8, 2017 causally related 

to the accepted employment injury. This decision, however, is null and void as the Board and OWCP may not 

simultaneously have jurisdiction over the same issue. See Douglas E. Billings, 41 ECAB 880 (1990); see also 

Arlonia B. Taylor, 44 ECAB 591 (1993) (Groom, Michael E., dissenting) (the Board held that OWCP may not issue 

a decision granting or denying a request for an oral hearing regarding the same issue on appeal before the Board).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the March 23, 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 has abused its discretion when it denied appellant’s March 3, 

2018 request for an oral hearing before an OWCP hearing representative as untimely filed, 

pursuant to 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On December 27, 2016 appellant, then a 39-year-old rural carrier associate, filed a 

traumatic injury claim (Form CA-1) alleging that, when lifting a tray of raw mail from the rear of 

her vehicle on that date, she sustained a strain to her lower back while in the performance of duty.

She did not stop work.

By decision dated February 16, 2017, OWCP accepted the claim for strain of muscle, 

fascia, and tendon of lower back. Appellant subsequently received wage-loss compensation for 

temporary total disability.

On August 8, 2017 appellant filed a claim for wage-loss compensation (Form CA-7) for 

the period from July 22 to August 4, 2017.

By development letter dated August 21, 2017, OWCP advised appellant that it had not 

received evidence to support her claim for compensation for the period from July 22 to 

August 4, 2017. It further noted that the evidence of record indicated that a light/limited-duty 

assignment was available within appellant’s medical restrictions with the employing establishment 

for the period of claimed lost time and requested evidence to support why she did not work the 

assignment and was now seeking compensation. OWCP afforded appellant 30 days to submit 

additional evidence and respond to its inquiries.

In response, appellant submitted a series of medical reports dated June 8 through 

October 2, 2017 from Dr. William J. Lichtenfeld, a Board-certified physiatrist and pain medicine 

specialist, who diagnosed low back pain, degeneration of lumbosacral intervertebral disc, and 

displacement of lumbar intervertebral disc without myelopathy. Dr. Lichtenfeld advised that 

appellant had an underlying facet hypertrophy which had hindered her improvement and 

recommended facet injections. He opined that appellant’s lumbar conditions were consistent with 

her accepted work injury “being chronic in nature following an initial strain injury.”

On August 21, 2017 appellant filed a subsequent claim for wage-loss compensation (Form 

CA-7) for the period from August 4 to 8, 2017. 

The record establishes that appellant voluntarily resigned from federal employment 

effective August 7, 2017 and gave no reason for her resignation. 

By decision dated November 13, 2017, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish total disability for the period from July 22 

to August 8, 2017 causally related to her accepted employment injury. 

By appeal request form dated November 19, 2017, appellant requested an oral hearing 

before a representative of OWCP’s Branch of Hearings and Review. The envelope was 

postmarked March 3, 2018. Appellant also submitted medical evidence and a narrative statement

dated November 19, 2017 in support of her claim. 
3

By decision dated March 23, 2018, OWCP’s hearing representative denied appellant’s 

request for an oral hearing finding that it was untimely filed as it was postmarked March 3, 2018, 

more than 30 days after OWCP’s November 13, 2017 decision. As such, appellant was not entitled 

to a hearing as a matter of right. The hearing representative exercised her discretion and reviewed 

the request, but determined that the issue could equally well be addressed by appellant requesting 

reconsideration from the district office and submitting new evidence establishing entitlement to

disability compensation for the period claimed.

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] claim before a representative of the 

Secretary.”

4

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.”

5

 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.6 OWCP has discretion, however, to grant or 

deny a request that is made after this 30-day period.7 In such a case, it will determine whether to 

grant a discretionary hearing and, if not, will so advise the claimant with reasons.8

ANALYSIS

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

March 3, 2018 hearing request before an OWCP hearing representative as untimely filed pursuant 

to 5 U.S.C. § 8124(b).

Appellant requested an oral hearing utilizing the appeal request form that accompanied 

OWCP’s November 13, 2017 merit decision. She had 30-calendar days from OWCP’s 

November 13, 2017 decision, or until December 13, 2017, to request an oral hearing before 

OWCP’s Branch of Hearings and Review. As the postmark date of her appeal request form was

more than 30 days after OWCP issued its November 13, 2017 decision, appellant was not entitled 

 

4 5 U.S.C. § 8124(b)(1).

5 20 C.F.R. § 10.615.

6

Id. at § 10.616.

7 See G.W., Docket No. 10-0782 (issued April 23, 2010).

8

Id.
4

to an oral hearing as a matter of right.

9

 Section 8124(b)(1) is unequivocal on the time limitation 

for requesting a hearing.10 Because the application was not timely filed, appellant was not entitled 

to an oral hearing as a matter of right.

The Board finds that OWCP properly exercised its discretion in denying appellant’s request 

for a hearing by determining that the issue in the case could be addressed equally well by 

requesting reconsideration and submitting new evidence relevant to the issue of disability for the 

claimed period.

11

 The Board has held that the only limitation on OWCP’s 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 both logic and 

probable deductions from established facts.12 Herein, the evidence of record does not indicate that 

OWCP abused its discretion by denying appellant’s request for an oral hearing. Accordingly, the 

Board finds that OWCP properly denied her oral hearing request.13

CONCLUSION

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

March 3, 2018 hearing request before an OWCP hearing representative as untimely filed pursuant 

to 5 U.S.C. § 8124.

 

9 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 2.1601.4(a) (October 2011). If the postmark is not legible, the request 

will be deemed timely unless OWCP has kept evidence of date of delivery on the record reflecting that the request is 

untimely. Id.

10 See William F. Osborne, 46 ECAB 198 (1994).

11 D.E., 59 ECAB 438, 442-43 (2008); J.C., 59 ECAB 206, 210-11 (2007).

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

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

IT IS HEREBY ORDERED THAT the March 23, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 5, 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