United States Department of Labor

Employees’ Compensation Appeals Board

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B.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Denver, CO, Employer

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Docket No. 18-1075

Issued: February 21, 2019

Appearances: Case Submitted on the Record

Tarneshia Davis, for the appellant1

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 May 1, 2018 appellant, through her representative, filed a timely appeal from a 

December 7, 2017 nonmerit decision of the Office of Workers’ Compensation Programs

(OWCP).2 As more than 180 days has elapsed from OWCP’s last merit decision, dated June 2, 

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 On her application for review (Form AB-1), appellant requested an oral argument pursuant to 20 C.F.R. § 501.5(b). 

On November 21, 2018 she indicated that she no longer desired an oral argument. The Board will therefore proceed 

with a decision based on the review of the case as submitted on the record. 
2

2017, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3(FECA) 

and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the case.

ISSUE

The issue is whether OWCP abused its discretion when it denied appellant’s October 25, 

2017 request for an oral hearing before an OWCP hearing representative as untimely filed pursuant 

to 5 U.S.C. § 8124(b). 

FACTUAL HISTORY

On August 5, 2016 appellant, then a 56-year-old voucher examiner, filed a traumatic injury 

claim (Form CA-1), alleging that on July 31, 2016 she aggravated her knees when she tripped and 

fell over a street sign while in the performance of duty. She did not stop work.

By decision dated June 2, 2017, OWCP denied the claim finding that appellant had not 

been injured while in the performance of duty. It found that she was not on the clock or on agency 

premises when the injury occurred. 

By appeal request form dated and postmarked October 25, 2017, appellant requested an 

oral hearing before an OWCP hearing representative. OWCP received additional evidence. 

By decision dated December 7, 2017, OWCP’s hearing representative found that

appellant’s request for an oral hearing was untimely filed. She informed appellant that her case 

had been considered in relation to the issues involved, but that the request was denied because the 

issues in the case could equally well be addressed by requesting reconsideration from OWCP and 

submitting evidence not previously considered.

LEGAL PRECEDENT

Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an 

OWCP hearing representative, provides that “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.”

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 by a representative of the Secretary.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 

 

3 5 U.S.C. § 8101 et seq.

4

Id. at § 8124(b)(1). 

5 20 C.F.R. §§ 10.616, 10.617.
3

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

The Board finds that OWCP did not abuse its discretion when it denied appellant’s 

October 25, 2017 request for an oral hearing before an OWCP hearing representative as untimely 

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

The Board initially finds that OWCP properly determined that appellant’s request for an 

oral hearing was untimely filed. OWCP’s regulations provide that the request for an oral hearing 

must be filed within 30 days of the date of the decision for which a review is sought.8 Because 

appellant’s request was postmarked October 25, 2017, more than 30 days after OWCP’s June 2, 

2017 decision, it was untimely filed and she was not entitled to an oral hearing as a matter of right.9

The Board further finds that OWCP’s hearing representative properly exercised her 

discretion in denying appellant’s request for an oral hearing by determining that the issue in the 

case could be addressed equally well through a request for reconsideration and the submission of 

new evidence relevant to the issues at hand.10 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.11 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.

12

On appeal appellant argues the merits of her claim. The only issue before the Board, 

however, is whether OWCP abused its discretion when it denied her October 25, 2017 request for 

 

6

Id. at § 10.616(a).

7 20 C.F.R. § 10.616(b); see also F.M., Docket No. 18-0161 (issued May 18, 2018); Eddie Franklin, 51 ECAB 223 

(1999); Delmont L. Thompson, 51 ECAB 155 (1999).

8 See S.M., Docket No. 17-1876 (issued January 24, 2018); R.T., Docket No. 08-0408 (issued December 16, 2008).

9 See J.A., Docket No. 17-1744 (issued January 9, 2018).

10 See B.H., Docket No. 18-0874 (issued October 10, 2018); see also D.P., Docket No. 14-0308 (issued April 21, 

2014); D.J., Docket No. 12-1332 (issued June 21, 2013).

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

12 See J.O., Docket No. 17-0789 (issued May 15, 2018).
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an oral hearing as untimely filed. As the Board lacks jurisdiction to review the underlying merits 

of appellant’s claim, it cannot review her arguments regarding her traumatic injury claim.13

CONCLUSION

The Board finds that OWCP did not abuse its discretion when it denied appellant’s 

October 25, 2017 request for an oral hearing before an OWCP hearing representative as untimely 

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

ORDER

IT IS HEREBY ORDERED THAT the December 7, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 21, 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

 

13 See G.S., Docket No. 18-0388 (issued July 19, 2018).