United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.S., Appellant

and

U.S. POSTAL SERVICE, FERNDALE POST 

OFFICE, Ferndale, WA, Employer

__________________________________________

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Docket No. 22-1325

Issued: December 16, 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

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On September 6, 2022 appellant filed a timely appeal from an August 26, 2022 nonmerit 

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

has elapsed from the last merit decision dated December 21, 2021 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.

1 The Board notes that, following the August26, 2022 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

5 U.S.C. § 8101 et seq.
2

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).

FACTUAL HISTORY

On June 27, 2018 appellant, then a 51-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on that date she sustained low back pain, a herniated disc, and nerve 

root impingement when she fell when trying to lift a box while in the performance of duty. She 

stopped work on June 27, 2018. OWCP accepted the claim for lumbosacral intervertebral disc 

disorders with radiculopathy, a permanent aggravation of lumbar disc disease at L5-S1, and lumbar 

radiculopathy. It paid appellant wage-loss compensation for total disability from August 13, 2018 

to January 18, 2019. 

Appellant stopped work on January 14, 2019. On March 7, 2019 she underwent an 

OWCP-authorized hemilaminotomy and microdiscectomy on the left at L5-S1. OWCP paid 

appellant wage-loss compensation on the supplemental rolls from January 19 to March 29, 2019 

and from April 13 to June 17, 2019. On June 18, 2019 appellant resumed her usual employment.

On August 6, 2021 appellant filed claims for compensation (Form CA-7) beginning 

March 27, 2021 and continuing.

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

deficiencies in her claim for compensation. It advised her of the definition of a recurrence of 

disability and type of factual and medical evidence needed. OWCP afforded appellant 30 days to 

submit additional evidence.

By decision dated December 21, 2021, OWCP found that appellant had not established a 

recurrence of disability commencing March 27, 2021 causally related to the accepted June 27, 

2018 employment injury.

In correspondence dated July 28, 2022 and postmarked July 29, 2022, appellant requested 

an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

By decision dated August 26, 2022, OWCP’s Branch of Hearings and Review denied 

appellant’s request for an oral hearing, finding that it was untimely filed. It further exercised its 

discretion and determined that the issue in the case could equally well be addressed by a request 

for reconsideration before OWCP along with the submission of new evidence supporting that she 

had sustained a recurrence of disability.

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.”

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 an oral hearing as 

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

In correspondence dated July 28, 2022 and postmarked July 29, 2022, 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 December 21, 2021 decision. 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.8

The Board further finds that OWCP, in its August 26, 2022 decision, properly exercised its 

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

for an oral hearing as her 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 deductions 

from established facts.9 In this case, the evidence of record does not indicate that OWCP abused 

its discretion by denying appellant’s request for an oral hearing. Accordingly, the Board finds that 

3

5 U.S.C. § 8124(b).

4

20 C.F.R. §§ 10.616, 10.617.

5

Id. at § 10.616(a).

6 M.F., Docket No. 21-0878 (issued January 6, 2022); W.H.,Docket No. 20-0562 (issued August 6, 2020);

P.C.,Docket No. 19-1003 (issued December 4, 2019); Eddie Franklin, 51 ECAB 223 (1999);Delmont L. Thompson,

51 ECAB 155 (1999).

7

See supra note 3; K.N., Docket No. 22-0647; G.H.,Docket No. 22-0122 (issued May 20, 2022).

8

See D.R., Docket No. 22-0361 (issued July 8, 2022); D.S., Docket No. 21-1296 (issued March 23, 2022); P.C., 

Docket No. 19-1003 (issued December 4, 2019).

9

See S.I., Docket No. 22-0538 (issued October 3, 2022); T.G., Docket No. 19-0904 (issued November 25, 2019); 

Daniel J. Perea, 42 ECAB 214 (1990).
4

OWCP properly denied her request for an oral hearing pursuant to 5 U.S.C. § 8124(b) as untimely 

filed.

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 August 26, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 16, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board