United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.M., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PATROL, Indio, CA, 

Employer

__________________________________________

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Docket No. 22-0053

Issued: August 12, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On October 14, 2021 appellant filed a timely appeal from an October 7, 2021 nonmerit

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

elapsed from OWCP’s last merit decision, dated March 5, 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 to review the merits of this case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the October 7, 2021 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

ISSUE

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

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

FACTUAL HISTORY

On January 18, 2021 appellant, then a 38-year-old border patrol agent, filed a traumatic 

injury claim (Form CA-1) alleging that on January 16, 2021 he injured his left knee when he was 

involved in an altercation with a resistant subject he was arresting while in the performance of 

duty. He stopped work on January 16, 2021 and returned to modified-duty work on 

January 19, 2021, and full-duty work on January 21, 2021.

In a form report dated January 17, 2021, Dr. Russell Grant, an internal medicine specialist, 

noted that appellant related complaints of left knee pain and right hand pain after an altercation the 

previous night. He performed a physical examination, which revealed tenderness to palpation 

across the dorsum of the right hand in the middle third through fifth metacarpals, pain with range 

of motion in the left knee, and two abraded areas on the left knee, which were clean and dry without 

swelling, bruising, discharge, or bleeding. Dr. Grant diagnosed unspecified injuries to the right 

hand and left knee and recommended modified-duty work restrictions.

On January 17, 2021 Ellen Kelley, a nurse practitioner, diagnosed right hand sprain and 

left knee pain. She recommended that appellant utilize crutches until his next evaluation and 

released him to return to work with restrictions from January 17 through 20, 2021.

In a form report dated January 18, 2021, Dr. Mark Bickley, an osteopath and family 

medicine specialist diagnosed unspecified injuries of the right wrist and lower leg. He released 

appellant to modified-duty work for the period January 18 through 21, 2021.

OWCP, in a January 28, 2021 development letter, informed appellant of the deficiencies 

of his claim. It advised him of the type of factual and medical evidence needed and afforded him

30 days to respond.

OWCP thereafter received a progress report from Dr. Bickley dated January 18, 2021, who 

indicated that appellant related ongoing pain in the right hand and left knee. Dr. Bickley noted 

that x-rays of the right hand and left knee had revealed no fractures. He performed a physical 

examination and recommended ongoing modified-duty work restrictions.

In a medical form report dated January 21, 2021, Dr. Bickley opined that appellant’s 

conditions had resolved and required no further treatment. He released him to return to full-duty 

work.

By decision dated March 5, 2021, OWCP accepted that the January 16, 2021 incident 

occurred, as described. However, it denied appellant’s traumatic injury claim, finding that he had 

not submitted any medical evidence from a qualified physician containing a medical diagnosis in 

connection with the accepted employment incident. Therefore, OWCP concluded that the 

requirements had not been met to establish an injury under FECA.
3

OWCP continued to receive medical evidence, including reports of x-rays of the right hand 

and left knee dated January 17, 2021, which were read as normal.

In a June 14, 2021 letter, Dr. Charity P. Russell, a Board-certified occupational medicine 

specialist, noted that appellant reported abrasions to his left knee and discomfort on the dorsum of 

his right hand, which he attributed to an altercation while making an arrest at work on 

January 16, 2021. She diagnosed sprains of the right wrist and left knee.

On July 23, 2021 OWCP received additional copies of previously submitted medical 

records and an undated letter from appellant.

On September 10, 2021 appellant requested a review of the written record by a 

representative of OWCP’s Branch of Hearings and Review.

By decision dated October 7, 2021, OWCP denied appellant’s request for a review of the 

written record, finding that the request was untimely filed.

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 

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

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for a review of the written 

record as untimely filed, pursuant to 5 U.S.C. § 8124.

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

must be made within 30 days of the date of the decision for which a review is sought. Because 

appellant’s request for a review of the written record was dated September 10, 2021, it postdated 

3

Supra note 1 at § 8124(b)(1).

4

20 C.F.R. §§ 10.616, 10.617.

5

Id. at § 10.616(a).

6 W.H., Docket No. 20-0562 (issued August 6, 2020); 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); DelmontL. Thompson, 51 

ECAB 155 (1999).
4

OWCP’s March 5, 2021 decision by more than 30 days and, accordingly, is untimely. Appellant 

was, therefore, not entitled to a review of the written record as a matter of right. 7

OWCP, however, has the discretionary authority to grant the request and it must exercise 

such discretion.8 The Board finds that, in the March 5, 2021 decision, OWCP properly exercised 

its discretion by determining that the issue in the case could be equally well addressed through a 

request for reconsideration, along with the submission of additional evidence.

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 deductions 

from established facts.9 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 a review of the written 

record.

Accordingly, the Board finds that OWCP properly denied appellant’s request for a review 

of the written record as untimely filed, pursuant to 5 U.S.C. § 8124(b).

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for a review of the written 

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

7

See M.F., Docket No. 21-0878 (issued January 6, 2022); see also P.C., Docket No. 19-1003 (issued 

December 4, 2019).

8

Id.

9

Id.
5

ORDER

IT IS HEREBY ORDERED THAT the October 7, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 12, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board