United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.N., Appellant

and

U.S. POSTAL SERVICE, KEDZIE GRACE 

POST OFFICE, Chicago, IL, Employer

__________________________________________

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Docket No. 19-1820

Issued: June 12, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 22, 2019 appellant filed a timely appeal from a May 29, 2019 merit decision 

and a July 23, 2019 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the July 23, 2019 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

ISSUES

The issues are: (1) whether OWCP properly denied appellant’s request for an oral hearing 

before an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124(b); and

(2) whether OWCP abused its discretion in denying authorization for a compounded medication.

FACTUAL HISTORY

On August 18, 1988 appellant, then a 40-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on the previous day, he sprained his left ankle when he fell

through a gate while being chased by a dog while in the performance of duty. He listed his street 

address with a zip code of 60643, but indicated that his mailing address was a Post Office Box 

with a zip code of 60680. Appellant provided both addresses on the form. OWCP accepted the 

claim for localized primary osteoarthritis of the left ankle and foot, a closed fracture of the medial 

malleolus of the left ankle, dermatophytosis of the left foot, left flat foot, and arthropathy of the

left ankle and foot. Appellant stopped work in July 2013. 

On April 8, 2019 Dr. Larry Weisman, a podiatrist, certified that he last examined appellant 

on April 5, 2019. He requested authorization for a compounded medication identified as

“triamcinolone base, coal tar, salicylic acid.” Dr. Weisman noted that this medication was 

necessary to treat appellant’s foot dermatophytosis. He indicated that appellant had tried and failed 

to obtain relief through other products, that there were commercially-available U.S. Food and Drug 

Administration (FDA) approved drugs appropriate for this diagnosis. Dr. Weisman related that all 

the active ingredients of the compounded drug were FDA-approved for this diagnosis. He further 

explained that the compound medication was medically necessary for its intended use and would 

be used to alleviate appellant’s psoriatic symptoms including scaling, peeling, itchiness, and 

redness of skin, and to prevent possible skin lesions from becoming sore and infected. 

On April 10, 2019 OWCP referred the matter, along with a statement of accepted facts and 

the medical record, to Nakia Shaw, PharmD, and Dr. Nathan Hammel, a Board-certified 

orthopedic surgeon and OWCP district medical adviser (DMA), for determination as to whether 

the requested compounded medication was medically necessary for appellant’s accepted 

condition(s). It noted that OWCP’s procedures require that consideration be given to whether 

there is justification for a prescription for a compounded medication and whether its use is 

consistent with the medical evidence of record. 

In a joint report dated April 24, 2019, Dr. Shaw indicated, and the DMA concurred, that 

the medical history did not justify use of the compound of medications, as over-the-counter 

methods could be used. The DMA stated that, while topical medications could have demonstrable 

clinical utility, the admixture of all the components had not been clinically proven. He explained 

that the clinical efficacy of topical medications had been shown using preparations with a uniform 

dispersion and particle size, which had been shown to be critical for transdermal absorption. The 

DMA noted that, in this case, the requested components were to be custom compounded, which 

resulted in far less control over particle size and thus less reliable clinical efficacy. He concluded 

that the medical necessity of the compounded cream had not been demonstrated. 
3

By development letter dated April 29, 2019, OWCP informed appellant that the evidence 

of record was insufficient to establish that the compounded medication was necessary to treat the 

effects of his accepted employment-related conditions. It requested that he provide a narrative 

explanation from his physician explaining why the compounded medication was medically 

necessary, including an explanation as to why a commercially-available drug was insufficient. 

OWCP afforded appellant 30 days to submit the necessary evidence. The mailing address utilized 

by OWCP listed appellant’s street address as well as his Post Office Box with the zip code 

associated only with the Post Office Box. Appellant did not respond within the time allotted.

By decision dated May 29, 2019, OWCP denied authorization for a compounded 

medication, as it determined that the evidence of record did not support that this medication was 

medically necessary to treat the effects of appellant’s work-related injury. The decision advised 

appellant of his appeal rights and included an appeal request form. The decision was mailed to the 

same address as the development letter.

By letter dated June 2, 2019, appellant noted that he received OWCP’s April 29, 2019 

development letter on that day. He indicated that “with receipt of this letter [he was] appealing 

[OWCP’s] decision denying [his] much needed medication.” On June 20, 2019 OWCP requested 

that appellant specify which appeal option from the decision of May 29, 2019 he wanted to pursue.

The enclosed appeal request form indicated that if he wished to request a review of the written 

record or oral hearing before a representative of OWCP’s Branch of Hearings and Review, the 

form must be submitted within 30 calendar days of the decision. 

By letter dated June 29, 2019, appellant advised that, prior to June 20, 2019, he had not 

received the appeal request form with the April 29, 2019 “decision.” He stated that he had only 

received two letters from OWCP, dated April 29 and June 20, 2019; that he had only received the 

May 29, 2019 decision as an attachment to the June 20, 2019 letter and not as “a stand-alone 

mailing”; and that he had not received appeal rights with the decision dated May 29, 2019. By

appeal request form dated June 29, 2019 and postmarked July 2, 2019, appellant requested an oral 

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

By decision dated July 23, 2019, OWCP’s hearing representative denied appellant’s 

request for an oral hearing, as the request was untimely filed. The hearing representative informed 

appellant that his case had been considered in relation to the issues involved, and that the issues 

could be equally well addressed by requesting reconsideration and submitting evidence not 

previously considered establishing that he was “entitled to the compound mixture” due to his 

accepted injury of August 17, 1988. 

LEGAL PRECEDENT -- ISSUE 1

Section 8124 of 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

 

3 5 U.S.C. § 8124(b)(1).
4

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 two formats: 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

ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly denied appellant’s request for an oral hearing as 

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

OWCP’s regulations provide that the request for a hearing or review of the written record 

must be sent within 30 days of the date of the decision for which a hearing is sought. Appellant, 

therefore, had 30 days after issuance of OWCP’s May 29, 2019 decision to timely request an oral 

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

Under the mailbox rule, it is presumed, absent evidence to the contrary, that a notice mailed 

to an individual in the ordinary course of business was received by that individual.8 When issuing 

its May 29, 2019 decision, OWCP utilized a combination of appellant’s street address as well as 

his Post Office Box with the zip code associated only with the Post Office Box. Appellant advised 

OWCP by a June 29, 2019 letter that he had only received its April 29, 2019 development letter 

and June 20, 2019 letter asking him to clarify which appeal option he was selecting; that he had 

received the May 29, 2019 decision as an attachment to OWCP’s June 20, 2019 letter and not as a 

“stand-alone mailing”; and that he had not received the appeal rights which OWCP advised him 

had accompanied the May 29, 2019 decision. Following his receipt of the appeal rights attached 

to the June 20, 2019 OWCP correspondence, in an appeal request form postmarked July 2, 2019, 

appellant requested an oral hearing before an OWCP hearing representative, which was more than 

30 days following the issuance of the May 29, 2019 OWCP decision. 

OWCP did not utilize the address of record that appellant included on his claim form when 

he designated his mailing address as a Post Office Box with a zip code of 60680 to mail its May 29, 

2019 decision. As OWCP utilized a combination of appellant’s street address and mailing address 

when issuing its May 29, 2019 decision, as he consistently maintained that he did not receive it as 

a “stand-alone mailing,” and as he has provided evidence that he received the decision and appeal 

rights as an attachment, the presumption that appellant received the OWCP May 29, 2019 decision 

 

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 See D.R., Docket No. 18-0232 (issued October 2, 2018); A.C. Clyburn, 47 ECAB 153 (1995).
5

when it issued is rebutted. Accordingly, the Board finds that OWCP improperly denied his request 

for an oral hearing as untimely filed. The case will be remanded for a hearing before an OWCP 

hearing representative, to be followed by any necessary further development and a de novo

decision.

CONCLUSION

The Board finds that that OWCP improperly denied appellant’s request for an oral hearing 

before an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124(b).9

ORDER

IT IS HEREBY ORDERED THAT the July 23 and May 29, 2019 decisions of the Office 

of Workers’ Compensation Programs are set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: June 12, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

9

In view of the Board’s disposition of Issue 1, adjudication of Issue 2 regarding authorization for a compound 

medication is premature. When a claimant is entitled to a hearing before an OWCP hearing representative, the Board 

will not address the underlying merit decision. The merits are subject to further adjudication pursuant to the hearing 

before an OWCP hearing representative, and therefore are not in posture for review by the Board. See P.H. (R.H.), 

Docket No. 17-0978 (issued August 29, 2017); Gary W. Cooper, Docket No. 97-0518 (issued March 5, 1999); see 

also 20 C.F.R. § 501.2(c)(2) (“There will be no appeal with respect to any interlocutory matter decided (or not decided) 

by OWCP during the pendency of a case”).