United States Department of Labor

Employees’ Compensation Appeals Board

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T.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Houston, TX, Employer

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Docket No. 19-0028

Issued: April 26, 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 October 3, 2018 appellant filed a timely appeal from an August 3, 2018 nonmerit 

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

has elapsed from OWCP’s last merit decision, dated September 16, 2016, 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 to review the merits of this case.3

 

1 The Board notes appellant’s request of a September 16, 2016 OWCP decision. However, no such decision appears 

within the file as presented. The only decision within the Board’s jurisdiction is the August 3, 2018 nonmerit decision.

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the August 3, 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 properly denied appellant’s request for a review of the written 

record before an OWCP hearing representative as untimely filed under 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On August 6, 2016 appellant, then a 29-year-old city carrier assistant, filed a traumatic 

injury claim (Form CA-1) alleging that, on that date, she strained her right lower back while 

attempting to lift a parcel from a parcel hamper while in the performance of duty. The employing 

establishment indicated that she stopped work on the day of the injury. 

Appellant submitted an August 6, 2016 signed statement explaining that when she 

attempted to lift a big box marked “fragile” she felt a sharp pain in her back on the right side. She

indicated that, when she subsequently bent down to pick up smaller packages, she felt a lot of pain. 

Discharge notes dated August 6, 2016 from East Houston Regional Medical Center reflect 

that appellant was treated by Dustin Miles, a physician assistant, who diagnosed muscle strain and 

back pain and injury. Mr. Miles prescribed pain medication and a muscle relaxant, and issued 

instructions for home care of the injury. A duty status report (Form CA-17) signed by him noted 

a diagnosis of strain and advised that appellant could return to work without restrictions on 

August 8, 2016. 

An August 8, 2016 duty status report (Form CA-17) signed by Dr. Carmen P. Wong, a 

Board-certified family practitioner, indicated that appellant was cleared to return to work on 

August 11, 2016 without restrictions. The report contains her clinical finding of right parathoracic 

chest wall pain and her diagnosis of chest pain. 

Appellant returned to full-duty work on August 11, 2016. 

In an August 16, 2016 development letter, OWCP advised appellant of the deficiencies of 

her claim and requested that she submit additional factual information and medical evidence in 

support of her claim along with responses to an attached questionnaire. It afforded her 30 days to 

submit the requested information. 

By decision dated September 16, 2016, OWCP denied appellant’s claim. It found that, 

although she had established that the August 6, 2016 employment incident occurred as alleged, the 

medical evidence of record was insufficient to establish a diagnosed condition causally related to 

the accepted incident. 

On October 24, 2016 OWCP received August 6, 2016 emergency department records from 

Bayshore Medical Center, reflecting treatment for “[right] side back pain onset this AM when 

lifted heavy object at work.” Dr. Marymichael Smith Werick, Board-certified in emergency 

medicine, examined appellant and diagnosed thoracic myofascial strain. 

On June 11, 2018 OWCP received a May 31, 2018 duty status report (Form CA-17) signed 

by Dr. Wong, which diagnosed lower back pain with right-sided radiculopathy and L5-S1 disc 

herniation. 
3

By appeal request form dated July 14, 2018 and postmarked July 19, 2018, appellant

requested a review of the written record by a representative of OWCP’s Branch of Hearings and 

Review. 

By decision dated August 3, 2018, OWCP’s hearing representative determined that 

appellant was not entitled to a review of the written record as a matter of right because her request

was untimely filed. She also denied a discretionary hearing, finding that the issue could equally 

well be addressed by appellant requesting reconsideration and providing new evidence or 

argument to establish that appellant sustained an injury in the performance of duty.

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 [or her] 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 the hearing is sought.6 However, OWCP has discretion 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 properly denied appellant’s July 19, 2018 request for a review 

of the written record before an OWCP hearing representative as untimely filed under 5 U.S.C. 

§ 8124(b).

Appellant had 30 days from OWCP’s September 16, 2016 merit decision to request a 

review of the written record before OWCP’s Branch of Hearings and Review. She requested a 

review of the written record by request form dated July 14, 2018 and postmarked July 19, 2018. 

As the postmark date was more than 30 days after OWCP’s September 16, 2016 decision, appellant 

 

4 5 U.S.C. § 8124(b)(1).

5 20 C.F.R. § 10.615.

6

Id. at § 10.616(a).

7 G.W., Docket No. 10-0782 (issued April 23, 2010); James Smith, 53 ECAB 188, 191-92 (2001).

8

James Smith, id. 
4

was not entitled to a review of the written record as a matter of right.9 Section 8124(b)(1) is 

unequivocal on the time limitation for requesting a hearing.10

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

for a review of the written record by determining that the issue in the case could equally well be 

addressed by requesting reconsideration and submitting new evidence relevant to the issue of fact 

of injury.

11

 The Board has held that the only limitation on OWCP’s authority is reasonableness, 

and 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.12 The Board finds that the evidence of record does not indicate that OWCP 

abused its discretion in its denial of appellant’s untimely request for a review of the written record. 

Accordingly, the Board finds that OWCP properly denied her July 19, 2018 request for a review 

of the written record as untimely filed under 5 U.S.C. § 8124(b).13

CONCLUSION

The Board finds that OWCP did not abuse its discretion when it denied appellant’s July 19, 

2018 request for a review of the written record before an OWCP hearing representative as untimely 

filed under 5 U.S.C. § 8124(b).

 

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 2.1601.4a (October 2011).

10 5 U.S.C. § 8124(b)(1); see R.H., Docket No. 18-1602 (issued February 22, 2019); William F. Osborne, 46 ECAB

198 (1994).

11 R.H., id.; M.H., Docket No. 15-0774 (issued June 19, 2015).

12 R.H., id.; (citing Daniel J. Perea, 42 ECAB 214, 221 (1990)).

13 Id.; R.P., Docket No. 16-0554 (issued May 17, 2016).
5

ORDER

IT IS HEREBY ORDERED THAT the August 3, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 26, 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