United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.N., Appellant

and

DEPARTMENT OF THE ARMY, TRAINING & 

DOCTRINE COMMAND, 

Fort Leonard Wood, MO, Employer

__________________________________________

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Docket No. 22-0647

Issued: August 29, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 28, 2022 appellant filed a timely appeal from an October 25, 2021 nonmerit 

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

elapsed from the last merit decision dated May 28, 2021, 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 over the merits of this case.

ISSUE

The issue is whether OWCP properly denied appellant’s request for an oral hearing as 

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

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On April 8, 2021 appellant, then a 63-year-old equipment operator, filed a traumatic injury 

claim (Form CA-1) alleging that on April 1, 2021 he injured his left knee when he missed the last 

step getting out of a bucket loader and fell to the ground while in the performance of duty. He did 

not stop work.

In support of his claim appellant submitted an April 5, 2021 disability note from Marie 

Gatzemeyer, a Board-certified family nurse practitioner, who diagnoseda left knee hyperextension 

injury. She also noted work restrictions. 

In a development letter dated April 20, 2021, OWCP informed appellant of the deficiencies 

of his claim and advised him of the type of factual and medical evidence needed to establish his

claim. It asked him to complete a questionnaire to provide further details regarding the 

circumstances of the claimed April 1, 2021 employment incident, including the immediate effects 

of the injury and a detailed description as to how his injury occurred. OWCP afforded appellant 

30 days to submit the necessary evidence. 

OWCP received an April 9, 2021 magnetic resonance imaging (MRI) scan of appellant’s 

left knee which demonstrated findings of supratellar joint effusion. 

In progress notes dated May 17, 2021, Dr. Jeff Mutcheler, an osteopath Board-certified in 

orthopedic surgery, noted that appellant had twisted his knee on April 1, 2021. He related 

appellant’s diagnosis as complex tear of the left knee medial meniscus and chondromalacia of the 

patellofemoral joint. Dr. Mutcheler recommended that appellant undergo arthroscopy for partial 

medial meniscectomy and chondroplasty shaving. 

By decision dated May 28, 2021, OWCP denied appellant’s claim finding the evidence 

insufficient to establish that the incident occurred as alleged. It concluded, therefore, that the 

requirements had not been met to establish an injury as defined by FECA. 

On September 23, 2021 appellant requested an oral hearing before a representative of

OWCP’s Branch of Hearings and Review.

By decision dated October 25, 2021, OWCP denied appellant’s September 23, 2021 

request for an oral hearing as untimely filed as it was not made within 30 days of OWCP’s May 28, 

2021 decision. As the request was untimely filed, it concluded that he was not entitled to a hearing 

as a matter of right. OWCP considered a discretionary hearing, but declined to grant a hearing, 

noting that appellant could instead file for reconsideration before OWCP’s district office and 

submit evidence in support of his traumatic injury claim not previously considered.

LEGAL PRECEDENT

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 
3

of the decision, to a hearing on his or her claim before a representative of the Secretary. 2 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.3 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. 4 

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.5

ANALYSIS

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

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

On September 23, 2021, appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review; however, this request was made more than 30 days after 

OWCP’s May 28, 2021 decision.

6

 Section 8124(b)(1) is unequivocal on the time limitation for 

filing a request for a hearing.

7

 As such, the request was untimely filed and appellant was not 

entitled to an oral hearing as a matter of right.

The Board further finds that OWCP in its October 25, 2021 decision, properly exercised 

its discretionary authority, explaining that it had considered the matter and denied appellant’s 

request for an oral hearing as his claim could be equally well addressed through a reconsideration 

request.

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

2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. §§ 10.616, 10.617, and 10.618.

4

Id. at § 10.616(a).

5 G.H., Docket No. 22-0122 (issued May 20, 2022); E.E., Docket No. 20-1290 (issued July 21, 2021); J.T., Docket 

No. 18-0664 (issued August 12, 2019); Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 

155 (1999).

6 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 (September 2020). If the postmark is illegible, the request will 

be deemed timely unless OWCP has kept evidence of date of delivery on the record reflecting that the request is 

untimely.Id.

7

See G.H., supra note 5; M.M., Docket No. 19-1171 (issued October 22, 2019); WilliamF. Osborne, 46 ECAB 

198 (1994).
4

from established facts.

8

 The Board finds that the evidence of record does not establish that OWCP 

abused its discretion in denying appellant’s request for an oral hearing before an OWCP hearing 

representative.

9

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the October 25, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 29, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

8 T.G., Docket No. 19-0904 (issued November 25, 2019);see Daniel J. Perea, 42 ECAB 214, 221 (1990).

9 G.H., supra note 5; J.G.,Docket No. 19-0555 (issued March 14, 2019).