United States Department of Labor

Employees’ Compensation Appeals Board

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C.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Waialua, HI, Employer

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Docket No. 20-0540

Issued: December 1, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On January 13, 2020 appellant filed a timely appeal from a September 19, 2019 nonmerit 

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

elapsed from OWCP’s last merit decision, dated July 2, 2019, 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 to review the merits of this claim.2

 

1 5 U.S.C. § 8101 et seq.

2 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.
2

ISSUE

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

record by an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On April 1, 2019 appellant, then a 60-year-old rural carrier, filed an occupational disease 

claim (Form CA-2) alleging that she developed a knee condition due to factors of her federal 

employment. She explained that she initially thought her condition was related to a fall that 

previous year, but later indicated that it was repetitive in nature. Appellant indicated that she first 

realized her condition was caused or aggravated by her federal employment on March 16, 2019.

In an undated statement, appellant noted that she had been working full time for the 

employing establishment since 1997. Her job responsibilities included casing mail, lifting flats of 

magazines and large flat envelopes weighing up to 33 pounds, pulling down mail into a hard plastic 

tray weighing up to 44 pounds, and loading parcels of various weight into her mail truck. 

Appellant indicated that she initially believed she sustained a traumatic injury on March 16, 2018,

but later found out that she had degenerative ligaments of the knees due to years of lifting mail.

In support of her claim, appellant submitted an April 1, 2019 report from Dr. Neelesh B. 

Fernandes, a Board-certified physiatrist, who noted that he had been treating appellant for injuries 

sustained on March 16, 2018 when she fell onto and twisted her left knee. Dr. Fernandes indicated 

that appellant had never been treated for knee conditions previously. He described appellant’s job 

duties as including prolonged walking up to 10 miles per day and bending at the knees while 

sorting trays, rearranging parcels, and casing mail at work. Dr. Fernandes noted that a July 20, 

2018 x-ray showed mild osteoarthritis of the knee. He opined that appellant’s listed job duties 

would be enough to cause osteoarthritis due to repetitive use and that the fall on March 16, 2018 

would be enough to aggravate her osteoarthritis.

In a development letter dated April 15, 2019, OWCP notified appellant of the deficiencies 

of her claim. It advised her of the type of factual and medical information needed and provided a 

questionnaire for her completion. OWCP afforded appellant 30 days to respond.

In a May 5, 2019 response to OWCP’s development questionnaire, appellant reiterated that 

she was first employed by the employing establishment in 1992. She detailed her work duties over 

the years, as well as her current daily work routine, which included sorting and bundling mail, 

lifting tubs and trays weighing up to 44 pounds, and loading them into her mail truck. Appellant 

asserted that she had no problems with her knees until March 16, 2018 when she slipped when 

attempting to step into her truck and landed on her left side. Following the fall, she alleged that 

she had pain in her knee and could barely walk. Appellant was subsequently advised by her doctors 

that the fall aggravated her degenerated knee condition.

Dr. Fernandes, in an industrial work status report dated June 3, 2019, diagnosed arthritis 

of the left knee, left knee anterior cruciate ligament (ACL) sprain, left knee joint pain, and left 

knee sprain. He released appellant to return to work without restrictions on June 3, 2019. In an 
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office visit note of even date, Dr. Fernandes noted that he had treated appellant for arthritis of the 

left knee, knee ligament sprain, left knee joint pain, and knee pain.

By decision dated July 2, 2019, OWCP denied appellant’s claim, finding that the medical 

evidence of record was insufficient to establish causal relationship between appellant’s diagnosed 

left knee conditions and the accepted factors of her federal employment.

On an appeal request form dated August 25, 2019, postmarked August 26, 2019 and 

received by OWCP on September 5, 2019, appellant requested a review of the written record by a 

representative of OWCP’s Branch of Hearings and Review.

By decision dated September 19, 2019, OWCP’s hearing representative denied appellant’s 

request for a review of the written record, finding that the request was untimely as it was not 

postmarked within 30 days of the July 2, 2019 decision. After exercising its discretion, the hearing 

representative informed appellant that the merits of the claim could equally well be addressed by 

requesting reconsideration and submitting evidence not previously considered.

LEGAL PRECEDENT

Section 8124 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.3

A hearing is a review by an OWCP hearing representative of a final adverse decision issued 

by an OWCP district office.4 Initially, the claimant can choose between either 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

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.8

 

3 5 U.S.C. § 8124(b)(1).

4 20 C.F.R. § 10.616.

5

Id. at § 10.615.

6

Id. at § 10.616(a); T.C., Docket No. 20-0090 (issued February 13, 2020); M.H., Docket No. 19-1087 (issued 

October 17, 2019); B.V., Docket No. 18-1473 (issued April 23, 2019).

7 T.C., id.; K.L., Docket No. 19-0480 (issued August 23, 2019).

8 P.C., Docket No. 19-1003 (issued December 4, 2019); M.G., Docket No. 17-1831 (issued February 6, 2018); 

Eddie Franklin, 51 ECAB 223 (1999).
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ANALYSIS

The Board finds that OWCP properly denied appellant’s request for a review of the written 

record as untimely filed pursuant to 5 U.S.C. § 8124(b).

OWCP’s regulations provide that a request for review of the written record must be made 

within 30 days of the date of the decision for which a review is sought. Because appellant’s 

August 25, 2019 request for review of the written record was postmarked August 26, 2019, it postdated OWCP’s July 2, 2019 decision by more than 30 days and was therefore untimely. As such, 

she was not entitled to review of the written record as a matter of right.9

OWCP also has the discretionary power to grant an oral hearing or review of the written 

record even if the claimant is not entitled to a review as a matter of right. The Board finds that 

OWCP, in its September 19, 2019 decision, properly exercised its discretion noting that it had 

considered the matter in relation to the issue of recurrence and determined that the issue could be 

equally well addressed through a request for reconsideration before OWCP, along with the 

submission of additional medical evidence.

The Board has held that as the only limitation on OWCP’s authority is reasonableness. An 

abuse of discretion is generally shown through proof of manifest error, clearly unreasonable 

exercise of judgment, or actions taken which are contrary to both logic and probable deduction 

from established facts.10 Herein, the evidence of record does not establish that OWCP abused its 

discretion in denying appellant’s request for a review of the written record. Accordingly, the Board 

finds that OWCP properly denied appellant’s request for a review of the written record.

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for a review of the written 

record as untimely filed pursuant to 5 U.S.C. § 8124(b).

 

9 D.S., Docket No. 19-1764 (issued March 13, 2020).

10 See T.G., Docket No. 19-0904 (issued November 25, 2019); Daniel J. Perea, 42 ECAB 214 (1990).
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ORDER

IT IS HEREBY ORDERED THAT the September 19, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 1, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board