United States Department of Labor

Employees’ Compensation Appeals Board

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R.C., Appellant

and

DEPARTMENT OF THE INTERIOR, BUREAU 

OF RECLAMATION, Folsom, CA, Employer

__________________________________________

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Docket No. 19-0949

Issued: June 24, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 1, 2019 appellant filed a timely appeal from an October 24, 2018 merit decision 

and a February 6, 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

ISSUES

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

pursuant to 5 U.S.C. § 8124(b) as untimely filed; and (2) whether appellant met his burden of proof 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the October 24, 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

to establish that his chronic headache condition was caused or aggravated by the accepted factors 

of his federal employment.

FACTUAL HISTORY

On August 14, 2018 appellant, then a 48-year-old building repair worker, filed an 

occupational disease claim (Form CA-2) alleging that his chronic headaches were caused by 

factors of his federal employment, including unhealthy air due to wild fires and exposure to smoke. 

In support of his claim, he submitted a written statement and medical evidence. The employing 

establishment submitted a statement and further documentation regarding appellant’s work 

assignments, his headache condition, and his leave history. 

By decision dated October 24, 2018, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish that his employment duties caused or 

aggravated a preexisting condition and. 

On a request form dated November 15, 2018, and received by OWCP on November 28, 

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

Review. 

By decision dated February 6, 2019, OWCP’s Branch of Hearings and Review denied 

appellant’s hearing request. It found that the request was untimely filed as it had a carrier’s mark 

of November 28, 2018, more than 30 days after its October 24, 2018 merit decision. After 

exercising its discretion, OWCP further found that the issue in the case could equally well be 

addressed through the reconsideration process. 

LEGAL PRECEDENT -- ISSUE 1

Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with 

a decision of the Secretary 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.”

3

 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.4 A claimant is entitled to a hearing or review of the written record 

as a matter of right only if the request is filed within the requisite 30 days as determined by 

postmark or other carrier’s date marking and before the claimant has requested reconsideration.5 

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.6

 

3 5 U.S.C. § 8124(b).

4 20 C.F.R. §§ 10.616, 10.617.

5

Id. at § 10.616(a).

6 See D.R., Docket No. 19-1899 (issued April 15, 2020).
3

OWCP’s procedures provide that the request is timely if it was mailed (as determined by 

the postmark or other carrier’s date marking) within 30 days of the date of the district office’s 

decision. If the postmark is not legible, the request will be deemed timely unless OWCP has kept 

evidence of date of delivery in the record reflecting that the request is untimely.7

ANALYSIS -- ISSUE 1

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

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

While OWCP noted in its February 6, 2019 decision that the appeal form had a carrier’s 

mark of November 28, 2018, the envelope or other evidence of the carrier’s mark was not retained 

in the record. As the record lacks evidence of the postmark or other evidence from which the date 

of the mailing could be established, the hearing request is deemed timely.

8

 Upon return of the case 

record, OWCP shall schedule an appropriate hearing with a representative of OWCP’s Branch of 

Hearings and Review.

CONCLUSION

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

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

9

 

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 

2.1601.4a (October 2011).

8

Id.

9

In light of the disposition of Issue 1, Issue 2 is in an interlocutory posture. 
4

ORDER

IT IS HEREBY ORDERED THAT the February 6, 2019 and October 24, 2018 decisions 

of the Office of Workers’ Compensation Programs are set aside and the case is remanded to OWCP 

for further proceedings consistent with this decision of the Board.

Issued: June 24, 2020

Washington, DC

Christopher J. Godfrey, Deputy 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