United States Department of Labor

Employees’ Compensation Appeals Board

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D.R., Appellant

and

U.S. INTERNATIONAL BOUNDARY &

WATER COMMISSION, El Paso, TX, Employer

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Docket No. 21-0691

Issued: December 15, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 29, 2021 appellant filed a timely appeal from a March 12, 2021 nonmerit 

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

have elapsed from OWCP’s last merit decision, dated July 31, 2019, to the filing of this appeal, 

pursuant to FECA1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the 

merits of this case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the March12, 2021 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 abused its discretion in denying appellant’s request for a 

hearing pursuant to 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On August 13, 2018 appellant, then a 37-year-old secretary, filed an occupational disease 

claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome due to factors of 

her federal employment, including performing clerical duties and keyboarding. She first became 

aware of her condition on January 5, 2017 and first realized its relation to her federal employment

on April 1, 2017. In an attached statement, appellant noted that she had utilized an “ergonomic 

keyboard, mouse, and workstation since 2016” and wore bilateral wrist splints while at work. 

In a January 5, 2017 report, Dr. Jason Vourazeris, a Board-certified orthopedic surgeon,

noted appellant’s history of bilateral carpal tunnel symptoms. On examination, he observed a 

dorsal ganglion cyst on the right wrist.3 Dr. Vourazeris diagnosed right carpal tunnel syndrome, a 

ganglion cyst of the right wrist, and osteoarthrosis of the left shoulder. 

On January 13, 2017 Dr. Vourazeris performed right dorsal ganglion cyst excision and a 

right carpal tunnel injection. He submitted progress notes dated through May 18, 2017, noting a 

history of a previous open reduction and internal fixation of the left clavicle.

In a June 27, 2018 report, Dr. Justin S. Mitchell, an osteopathic physician Board-certified 

in orthopedic surgery, diagnosed bilateral carpal tunnel syndrome and a right ulnar nerve lesion 

with right cubital tunnel symptoms. He administered an injection to the right carpal tunnel. 

In a July 25, 2018 report, Dr. Mitchell made an additional diagnosis of right cubital tunnel 

syndrome. He opined that high intensity typing at work could exacerbate underlying carpal tunnel 

syndrome and worsen its symptoms. 

In an August 7, 2018 statement, an employing establishment safety officer noted that 

appellant had been provided an ergonomic desk, chair, keyboard, mouse bar, standing mat, and 

telephone headset to address her bilateral hand and wrist symptoms. 

OWCP, in a development letter dated August 28, 2018, informed appellant of the

deficiencies of her claim. It advised her of the type of additional factual and medical evidence 

necessary and provided a questionnaire for her completion. By separate development letter of 

even date, OWCP requested additional information from the employing establishment, including 

comments from a knowledgeable supervisor regarding appellant’s allegations. It afforded both 

parties 30 days to respond.

3 A December 31, 2016 magnetic resonance imaging scan of the right wrist demonstrated a dorsal ganglion cyst, 

slight thickening of the right median nerve, minimal first flexor tendon tenosynovitis, borderline second and third 

extensor compartment tenosynovitis, mild ulnar/volar extensor carpi ulnaris tendon subluxation, and mild bowing of 

the flexor retinaculum without thickening. 
3

Appellant submitted a completed questionnaire, signed on September 17, 2018 and a 

summary of medical treatment. She described “constant” typing for 40 hours a week while at 

work. Appellant provided a September 2, 2016 employing establishment ergonomic evaluation in 

which she noted bilateral wrist, left shoulder, and back pain when keyboarding at work. OWCP 

also received an official position description. 

By decision dated October 1, 2018, OWCP accepted that the identified work factors 

occurred as alleged, but denied the claim as the medical evidence of record was insufficient to 

establish that the diagnosed conditions were causally related to those employment factors. 

On October 16, 2018 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review, later converted to a request for a review of the written 

record. 

OWCP subsequently received a June 19, 2019 statement from the employing 

establishment, noting that appellant required ergonomic accommodations when she began work at 

the employing establishment on August 21, 2016. It confirmed that, during the first six months of 

2018, she completed 82 memoranda, 30 letters, 200 reports, 23 technical analyses, assisted with 

an annual inventory, helped set up meetings and appointments, and made travel reservations. 

Appellant’s supervisor advised appellant to take leave as needed and to assure that her work did 

not aggravate her symptoms. The employing establishment also submitted photographs of the 

ergonomic furniture provided to appellant. 

In a July 1, 2019 report, Dr. Mitchell noted bilaterally positive Tinel’s tests at the wrist and 

at the right elbow, a bilaterally positive Durkin’s compression test, and tenderness to palpation 

medially over the right ulnar nerve at the elbow. He diagnosed bilateral carpal tunnel syndrome, 

right greater than left. Dr. Mitchell noted that conservative management had not improved 

appellant’s symptoms. 

By decision dated July 31, 2019, an OWCP hearing representative affirmed the October 1, 

2018 decision.

In an August 30, 2019 report, Dr. Mitchell noted administering a right wrist injection. He 

related that appellant’s job duties included high-intensity typing and repetitive upper extremity 

motion while performing clerical duties. Dr. Mitchell explained that wrist position and extension 

while typing and using a computer mouse were known to aggravate underlying carpal tunnel 

syndrome by increasing pressure within the carpal tunnel and compressing the median nerve. He 

opined that appellant’s work duties aggravated and worsened her underlying carpal tunnel 

syndrome

In a September 16, 2020 report, Dr. Mitchell scheduled appellant for a right ulnar nerve 

decompression with in situ release and a left carpal tunnel injection. He recommended left ulnar 

and median nerve decompression to be performed following her recovery from the right upper 

extremity surgery. 

In an October 16, 2020 letter, appellant contended that OWCP had not responded to her 

prior requests for an oral hearing. OWCP processed the October 16, 2020 letter as a request for 

an oral hearing before a representative of OWCP’s Branch of Hearings and Review.
4

By decision dated March 12, 2021, OWCP denied appellant’s October 30, 2020request for 

an oral hearing. It explained that she was not entitled to a hearing as a matter of right. OWCP 

also considered whether to grant a discretionary hearing and found that the issue could be 

addressed by requesting reconsideration and submitting evidence not previously considered. 

LEGAL PRECEDENT

A claimant dissatisfied with an OWCP decision shall be afforded an opportunity for either 

an oral hearing or a review of the written record.4 Section 8124(b) of FECA, concerning a 

claimant’s entitlement to a hearing, states that: “Before review under section 8128(a) of this title, 

a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request 

made within 30 days after the date of issuance of the decision, to a hearing on his or her claim 

before a representative of the Secretary.”

5

 The Board has held that OWCP has the discretion to 

grant or deny a hearing request on a claim when the request is made after the 30-day period for 

requesting a hearing,6 when the request is for a second hearing on the same issue,7 and when the 

request is made after a reconsideration request was previously submitted. 8

ANALYSIS

The Board finds that OWCP did not abuse its discretion in denying appellant’s October 16, 

2020 request for an oral hearing before an OWCP hearing representative.

OWCP denied appellant’s occupational disease claim by decision dated October 1, 2018, 

finding that the medical record was insufficient to establish causal relationship. On Octo ber 16, 

2018 appellant requested an oral hearing before a representative of OWCP’s Branch of Hearings 

and Review, modified to a request for a review of the written record. By decision dated July 31, 

2019, an OWCP hearing representative affirmed the October 1, 2018 decision denying appellant’s 

occupational disease claim. On October 16, 2020 appellant again requested an oral hearing before 

OWCP’s Branch of Hearings and Review on the issue of whether she had established her 

occupational disease claim. As she had a review of the written record on the same issue, under 

section 8128 of FECA, the Board finds that she was not entitled to an oral hearing as a matter of 

right under section 8124(b)(1).

9

 OWCP properly exercised its discretion and determined that the 

issue in the case could be resolved equally well through a request for reconsideration and the 

submission of new evidence.10 Therefore, the Board finds that OWCP, in its March 12, 2021

4

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.615.

5

Id. at § 8124(b)(1).

6 E.R., Docket No. 20-1110 (issued December 23, 2020); Herbert C. Holley, 33 ECAB 140, 142 (1981).

7 D.M., Docket No. 19-0686 (issued November 13, 2019); Johnny S. Henderson, 34 ECAB 216, 219 (1982).

8 R.H., Docket No. 07-1658 (issued December 17, 2007);S.J., Docket No. 07-1037 (issued September 12, 2007).

9

Supra note 7.

10 Id.
5

decision, did not abuse its discretion in denying appellant’s October 16, 2020 request for an oral 

hearing.

CONCLUSION

The Board finds that OWCP did not abuse its discretion in denying appellant’s October 16, 

2020 request for an oral hearing before an OWCP hearing representative.

ORDER

IT IS HEREBY ORDERED THAT the March 12, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 15, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board