United States Department of Labor

Employees’ Compensation Appeals Board

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J.H., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Gary, IN, Employer

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Docket No. 19-0502

Issued: February 22, 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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 8, 2019 appellant filed a timely appeal from a September 18, 2018 nonmerit 

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

have elapsed from the last OWCP merit decision, dated June 29, 2018, 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 case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence to OWCP following the September 18, 2018 

decision, and 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 an oral hearing by an 

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

FACTUAL HISTORY

On February 12, 2009 appellant, then a 44-year-old mail processor clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on January 15, 2009 she strained her right elbow when she 

was lifting a tray of mail, it began to fall, and she tried to catch it. On March 12, 2009 OWCP 

accepted the claim for right elbow and forearm sprain. It subsequently expanded acceptance of 

the claim to include right medial epicondylitis, and lesion of the right ulnar nerve. OWCP paid

appellant intermittent wage-loss benefits on the supplemental rolls, effective March 16, 2009, and 

on the periodic rolls, effective November 20, 2011.

OWCP referred appellant for vocational rehabilitation on August 25, 2016. 

On May 17, 2018 appellant underwent a functional capacity evaluation (FCE). The 

evaluator determined that appellant provided inconsistent performance and an unacceptable effort. 

The evaluator explained that appellant failed the majority of total objective effort criteria and a 

physical demand level could not be determined. In a May 31, 2018 rehabilitation action report,

the vocational rehabilitation counselor noted that this was the second time appellant failed the 

FCE, and questioned the probability of success with vocational rehabilitation.

By letter dated May 24, 2018, OWCP notified appellant of the penalties under 5 U.S.C. 

§ 8113(b) and 20 C.F.R. § 10.519 for failing to cooperate with vocational rehabilitation without 

good cause. It noted that, if appellant did not comply with the instructions contained in the letter 

within 30 days, the rehabilitation effort would be terminated and action would be taken to reduce 

her compensation under 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519. OWCP’s letter was sent to 

appellant’s address of record. No response was received. 

By decision dated June 29, 2018, OWCP reduced appellant’s compensation to zero, 

effective that date, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519, due to failure to 

cooperate with vocational rehabilitation without good cause.

On August 8, 2018 OWCP received appellant’s request for an oral hearing. The request 

was postmarked August 2, 2018.

By decision dated September 18, 2018, OWCP’s hearing representative denied appellant’s 

request for an oral hearing, finding that the request was untimely filed. The hearing representative 

informed appellant that the issues had been considered by OWCP in its June 29, 2018 decision and 

could be further addressed by requesting reconsideration and submitting evidence not previously 

considered.
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LEGAL PRECEDENT

Section 8124 FECA provides that a claimant is entitled to a hearing before an OWCP 

representative when a request is made within 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 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. 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.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 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).

Appellant had 30 days, following OWCP’s June 29, 2018 merit decision, to request an oral 

hearing before a representative of OWCP’s Branch of Hearings and Review. As her request for 

an oral hearing was postmarked August 2, 2018, more than 30 days after OWCP’s June 29, 2018 

decision, it was untimely filed. Appellant is, therefore, not entitled to an oral hearing as a matter 

of right.8 Section 8124(b)(1) is unequivocal on the time limitation for requesting a hearing.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 18, 2018 decision, properly exercised its discretion. It noted that it had 

 

3 5 U.S.C. § 8124(b)(1).

4 20 C.F.R. § 10.616.

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Id. at § 10.615.

6 See C.F., Docket No. 20-0297 (issued October 19, 2020); K.L., Docket No. 19-0480 (issued August 23, 2019).

7 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).

8 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 2.1601.4(a) (October 2011); see also G.S., Docket No. 18-0388 (issued 

July 19, 2018).

9 5 U.S.C. § 8124(b)(1); see M.K., Docket No. 19-0428 (issued July 15, 2019); R.H., Docket No. 18-1602 (issued 

February 22, 2019); William F. Osborne, 46 ECAB 198 (1994).
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considered the matter and the issue could be equally well addressed through a reconsideration 

request and the submission of evidence to establish that appellant had good cause not to participate 

in the vocational rehabilitation effort. The Board has held that, as the only limitation on OWCP’s 

authority is reasonableness, 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 The Board finds that the evidence of record does not 

indicate that OWCP abused its discretion in connection with its denial of appellant’s request for 

an oral hearing.

Accordingly, the Board finds that OWCP properly denied appellant’s request for an oral 

hearing.

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the September 18, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 22, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

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