United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.G., Appellant

and

U.S. POSTAL SERVICE, CHICAGO 

INTERNATIONAL SERVICE CENTER, 

Chicago, IL, Employer

__________________________________________

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Docket No. 22-0805

Issued: October 20, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 28, 2022 appellant, through counsel, filed a timely appeal from an April 4, 2022 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

Federal Employees’ Compensation Act (FECA) and 20 C.F.R. § 501.2(c) and 501.3, the Board 

lacks jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 Counsel identified only the April 4, 2022 nonmerit decision on the application for review (AB-1 Form). As such, 

the March14 and April19, 2022 merit decisions are not before the Board on the current appeal. See 20 C.F.R. § 501.3;

see also S.K., Docket No. 22-0248 (issued June27, 2022); M.M., Docket No. 20-0523 (issued August25, 2020).
2

ISSUE

The issue is whether OWCP abused its discretion in denying appellant’s request for a

second hearing, pursuant to 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On July 25, 2019 appellant, then a 60-year-old casual clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on that day she injured her right upper arm when she tripped over a bolt 

that held a post upright and fell, while in the performance of duty. She stopped work on 

July 25, 2019. On September 12, 2019 OWCP accepted the claim for right shoulder complete 

rotator cuff tear or rupture. It authorized right shoulder arthroscopy with rotator repair, right 

shoulder arthroscopy with extensive debridement and synovectomy of the glenohumeral joint, and 

right shoulder arthroscopy with subacromial decompression with acromioplasty, which was 

performed on November 20, 2019. OWCP paid appellant wage-loss compensation on the 

supplemental rolls as of September 9, 2019, and on the periodic rolls as of September 15, 2019.

In a letter dated September 20, 2019, appellant requested expansion of the acceptance of 

her claim to include left shoulder and fingers, neck, and bilateral hand and wrist injuries also due 

to the fall on July 25, 2019.

In a December 3, 2019 work status form, Dr. David Saper, a Board-certified orthopedic 

surgeon, diagnosed left trigger thumb and right shoulder complete rotator cuff tear or rupture.

In a letter dated February 27, 2020, OWCP requested that Dr. Saper provide medical 

rationale explaining how appellant’s diagnosed left thumb trigger finger condition was causally 

related to the accepted July 25, 2019 employment injury.

In a report dated March 4, 2020, Dr. Saper diagnosed right shoulder complete rotator cuff 

tear or rupture and left thumb trigger finger. He opined that appellant’s left thumb trigger finger 

was related to the accepted July 25, 2019 work injury as she had not experienced any pain prior to 

the injury. 

In a memorandum of telephone call (Form CA-110) dated April 16, 2020, appellant again 

requested expansion of the acceptance of her claim to include wrist and finger conditions.

In a letter dated April 20, 2020, OWCP informed appellant that her claim had been 

reviewed and advised that the evidence of record was insufficient to require expansion of the 

acceptance of her claim. 

Dr. Saper, in a June 9, 2020 report, provided examination findings and diagnosed left 

shoulder pain and right shoulder complete rotator cuff tear or rupture. He noted that, since the 

accepted injury, appellant had complaints of substantial left shoulder pain.

In a report dated June 30, 2020, Dr. Saper noted appellant’s physical examination findings 

and reviewed her diagnostic test results. He diagnosed right shoulder complete rotator cuff tear or 

rupture and left shoulder incomplete rotator cuff tear or rupture. Dr. Saper noted that appellant’s 

left shoulder has been bothering her since the July 25, 2019 employment injury.
3

In a letter dated July 27, 2020 to Dr. Saper, OWCP noted that it had received appellant’s

request for authorization of left shoulder arthroscopy. It noted that a left shoulder condition had 

not been accepted and requested that he submit a well-rationalized opinion explaining how the 

diagnosed left shoulder condition was causally related to the accepted July 25, 2019 employment 

injury. OWCP afforded Dr. Saper 30 days to provide the requested evidence. 

In a report dated November 3, 2020, Dr. Saper diagnosed right shoulder complete rotator 

cuff tear or rupture and left shoulder incomplete rotator cuff tear or rupture. He further related that 

when appellant fell at work on July 25, 2019 that she fell onto her left shoulder. Based on her 

history, physical examination, and diagnostic test results, Dr. Saper opined that appellant’s partial 

left shoulder tear was due to her fall on July 25, 2019.

On November 3, 2020 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), the medical record, and a series of questions, to Dr. Allan Brecher, a Board-certified 

orthopedic surgeon, for an opinion as to whether appellant’s left shoulder condition and her

recommended left shoulder surgery were the result of the accepted July 25, 2019 employment 

injury. In a report dated December 2, 2020, Dr. Brecher, based upon a review of the medical 

record, SOAF and physical examination, concluded that her left shoulder condition was unrelated 

to the accepted July 25, 2019 employment injury. He explained that appellant’s left shoulder 

condition was not noted until June 2020, approximately 11 months after her injury. Dr. Brecher 

opined that the only injury sustained on July 25, 2019 was the accepted right shoulder condition.

Dr. Saper, in a January 28, 2021 report, reviewed Dr. Brecher’s report. He diagnosed right 

shoulder complete rotator cuff tear or rupture and left shoulder incomplete rotator cuff tear or 

rupture. Dr. Saper indicated that he could not dispute Dr. Brecher’s report and opined that the left 

shoulder condition did not appear to be work related.

By decision dated September 16, 2021, OWCP denied appellant’s request for expansion of 

the acceptance of her claim to include additional diagnoses of left trigger finger and left shoulder 

incomplete rotator cuff tear or rupture.

On September 22, 2021 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review, which was held on January 11, 2022.

By decision dated March 14, 2022, OWCP’s hearing representative affirmed the 

September 16, 2021 decision denying expansion of the acceptance of appellant’s claim.

On March 15, 2022 OWCP received appellant’s request for an oral hearing before an 

OWCP hearing representative, dated March 2, 2022, regarding the September 16, 2021 decision.

By decision dated April 4, 2022, OWCP denied appellant’s second request for an oral 

hearing before an OWCP hearing representative, received on March 15, 2022. It explained that as

appellant had received a decision from the Branch of Hearings and Review regarding this issue on 

March 14, 2022, she was not entitled to another hearing as a matter of right. OWCP also 

considered whether to grant a discretionary hearing and found that the issue could be addressed by 

requesting reconsideration and submitting evidence not previously considered.
4

LEGAL PRECEDENT

A claimant dissatisfied with an OWCP decision shall be afforded an opportunity for either 

an oral hearing or a review of the written record.3 Section 8124(b) of FECA, concerning a 

claimant’s entitlement to a hearing, states that: “Before review under section 8128(a) of this title, 

a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request 

made within 30 days after the date of issuance of the decision, to a hearing on his or her claim 

before a representative of the Secretary.”

4

 The Board has held that OWCP has the discretion to 

grant or deny a hearing request on a claim when the request is made after the 30-day period for 

requesting a hearing,5 when the request is for a second hearing on the same issue,

6 and when the 

request is made after a reconsideration request was previously submitted.

7

ANALYSIS

The Board finds that OWCP did not abuse its discretion in denying appellant’s request for 

a second hearing, pursuant to 5 U.S.C. § 8124(b).

OWCP denied appellant’s request to expand her claim to include the conditions left trigger 

finger and left shoulder incomplete rotator cuff tear or rupture in a decision dated September 16, 

2021, finding that the medical record was insufficient to establish causal relationship. On

September 22, 2021 appellant, through counsel, requested an oral hearing before a representative 

of OWCP’s Branch of Hearings and Review. By decision dated March 14, 2022, an OWCP 

hearing representative affirmed the September 16, 2021 decision denying appellant’s request for 

expansion of the acceptance of her claim. 

On March 15, 2022 OWCP received appellant’s request for an oral hearing before OWCP’s 

Branch of Hearings and Review regarding the issue of whether the acceptance of her claim should 

be expanded to include additional conditions. As a hearing had previously been held on the same 

issue, the Board finds that appellant was not entitled to an oral hearing as a matter of right under 

section 8124(b)(1).

8

 OWCP properly exercised its discretion and determined that the issue in the 

case could be resolved equally well through a request for reconsideration and the submission of 

3

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.615.

4

Id. at § 8124(b)(1).

5 D.R., Docket No. 21-0691 (issued December 15, 2021); E.R., Docket No. 20-1110 (issued December 23, 2020);

Herbert C. Holley, 33 ECAB 140 (1981).

6 D.R., id.; D.M., Docket No. 19-0686 (issued November 13, 2019); JohnnyS. Henderson, 34 ECAB 216 (1982).

7 D.R., id.; R.H., Docket No. 07-1658 (issued December 17, 2007); S.J., Docket No. 07-1037 (issued 

September 12, 2007).

8

Supra note 6.
5

new evidence.

9

 Therefore, the Board finds that OWCP, in its April 4, 2022 decision, did not abuse 

its discretion in denying appellant’s request for an oral hearing.

CONCLUSION

The Board finds that OWCP did not abuse its discretion in denying appellant’s request for 

a second hearing, pursuant to 5 U.S.C. § 8124(b).

ORDER

IT IS HEREBY ORDERED THAT the April 4, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: October 20, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

9

Id.