United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.C., Appellant

and

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA, Employer

__________________________________________

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Docket No. 20-0090

Issued: February 13, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 16, 2019 appellant filed a timely appeal from an October 1, 2019 nonmerit 

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

has elapsed from the last merit decision dated July 8, 2011 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 over the merits of this case.

ISSUE

The issue is whether OWCP properly denied appellant’s request for review of the written 

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

 

1 Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20 

C.F.R. § 501.5(b). By order dated February 6, 2020, the Board exercised its discretion and denied the request, finding 

that the arguments on appeal could adequately be addressed in a decision based on the case record. Order Denying 

Request for Oral Argument, Docket No. 20-0090 (issued February 6, 2020).

2 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On January 28, 2011 appellant, then a 60-year-old ship fitter supervisor, filed an 

occupational disease claim (Form CA-2) alleging that on April 15, 1980 he first became aware that 

he had sustained hearing loss while in the performance of duty due to factors of his federal 

employment. 

In support of his claim, appellant submitted a December 14, 2010 report from Dr. Ryan P. 

Hester, a Board-certified otolaryngologist. Dr. Hester noted that appellant’s hearing loss

symptoms were associated with occupational noise exposure at the employing establishment. He 

diagnosed sensorineural hearing loss and tinnitus. 

On March 23, 2011 OWCP received employing establishment audiogram reports, dating 

from March 29, 1985. 

By letter dated March 28, 2011, OWCP referred appellant, together with a statement of 

accepted facts, a list of specific questions, and the case record to Dr. L. Frederick Lassen, a Boardcertified otolaryngologist, for a second opinion audiologic and otologic evaluation to determine 

the extent and degree of any employment-related hearing loss. 

In an April 15, 2011 report, Dr. Lassen diagnosed bilateral sensorineural hearing loss and 

noise-induced hearing loss. He determined that appellant had a rating of zero percent binaural 

hearing loss.

By decision dated June 9, 2011, OWCP accepted appellant’s claim for bilateral 

sensorineural hearing loss.

In a June 16, 2011 report, Dr. Duane J. Taylor, a Board-certified otolaryngologist and 

OWCP’s district medical adviser (DMA) concurred with Dr. Lassen’s rating of zero percent 

binaural hearing loss.

By decision dated July 8, 2011, OWCP denied appellant’s schedule award claim, finding 

that the evidence of record was insufficient to establish that his accepted hearing loss condition 

was severe enough to be considered ratable.

Appellant disagreed with the decision and requested review of the written record by a 

representative of OWCP’s Branch of Hearings and Review on March 1, 2016 and April 27, 2017.

3

By decision dated June 1, 2017, OWCP’s hearing representative denied appellant’s request 

for a review of the written record as the request was untimely filed. She informed appellant that 

his case had been considered in relation to the issues involved, and that the issues could be equally 

addressed by requesting reconsideration and submitting evidence not previously considered.

 

3

In support of his request, appellant submitted a February 26, 2016 report from Dr. Jeffrey D. Powell, a Boardcertified otolaryngologist, finding a 3.75 percent monaural left ear hearing loss. On June 21, 2017 OWCP received 

an audiogram dated February 26, 2016.
3

In a form dated and postmarked August 30, 2019, appellant again requested review of the 

written record by an OWCP hearing representative.4

By decision dated October 1, 2019, the Branch of Hearings and Review denied appellant’s 

request for a review of the written record as the request was untimely filed. It noted that he had 

previously requested review of the written record, with a postmark of April 27, 2017, which had 

been denied as untimely by a representative of the Branch of Hearings and Review in a June 1, 

2017 decision. The Branch of Hearings and Review also related that appellant was informed of 

his appeal rights in the June 1, 2017 decision, and if he disagreed with the decision he should 

follow the appeal rights outlined in the prior decision. 

LEGAL PRECEDENT

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.5

A hearing is a review by an OWCP hearing representative of a final adverse decision issued 

by an OWCP district office.6 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.7 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.8 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.9

ANALYSIS

The Board finds that OWCP properly denied appellant’s August 30, 2019 request for 

review of the written record before an OWCP hearing representative pursuant to 5 U.S.C. 

§ 8124(b).

Appellant had 30 days following OWCP’s July 8, 2011 merit decision to request a review 

of the written record before a representative of OWCP’s Branch of Hearings and Review. As his

most recent request for review of the written record was postmarked August 30, 2019, more than 

30 days after OWCP’s July 8, 2011 decision, it was untimely filed and he was, therefore, not 

 

4 Appellant also submitted an audiogram dated August 27, 2019.

5 5 U.S.C. § 8124(b)(1).

6 20 C.F.R. § 10.616.

7

Id. at § 10.615.

8

Id. at § 10.616(a); M.H., Docket No. 19-1087 (issued October 17, 2019); B.V., Docket No. 18-1473 (issued 

April 23, 2019).

9 M.H., id.; K.L., Docket No. 19-0480 (issued August 23, 2019).
4

entitled to a review of the written record as a matter of right.10 Section 8124(b)(1) is unequivocal 

on the time limitation for requesting a hearing.11

OWCP’s regulations further provide that a claimant has a right to a hearing/review of the 

written record by an OWCP hearing representative following a final adverse decision by an OWCP 

district Office.12 The last decision of record however was the June 1, 2017 decision by a 

representative of the Branch of Hearings and Review, which denied appellant’s prior request for 

review of the written record. This decision was not a final adverse decision issued by an OWCP 

district office. OWCP properly advised appellant that he had been informed of his appeal rights 

in the June 1, 2017 decision, and that if he disagreed with the current decision he should follow 

the appeal rights outlined in the June 1, 2017 decision.13 Accordingly, the Board finds that OWCP 

properly denied appellant’s August 30, 2019 request for a review of the written record.14

On appeal appellant asserts that the evidence establishes entitlement to a schedule award. 

As explained above, the Board lacks jurisdiction over the merits of the case.

CONCLUSION

The Board finds that OWCP properly denied appellant’s September 4, 2019 request for a

review of the written record before an OWCP hearing representative as untimely filed pursuant to 

5 U.S.C. § 8124(b).

 

10 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).

11 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).

12 Supra note 6. 

13 On June 1, 2017 OWCP advised appellant that he could have the schedule award issue reconsidered by requesting 

reconsideration before OWCP or he could file an appeal to the Board. Appellant may request a schedule award or 

increased schedule award at any time based on evidence of a new exposure or medical evidence showing progression 

of an employment-related condition resulting in permanent impairment or increased impairment. 

14 E.A., Docket No. 19-0747 (issued September 16, 2019); T.L., Docket No. 19-0028 (issued April 26, 2019); R.P.,

Docket No. 16-0554 (issued May 17, 2016).
5

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation 

Programs dated October 1, 2019 is affirmed.

Issued: February 13, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board