United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Milwaukee, WI, Employer

__________________________________________

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Docket No. 21-0889

Issued: May 18, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

On May 17, 2021 appellant filed a timely appeal from a February 3, 2021 nonmerit 

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

have elapsed from OWCP’s last merit decision, dated July 28, 2020, 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 a review of the written 

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

FACTUAL HISTORY

On April 29, 2020 appellant, then a 59-year-old postal distribution clerk, filed an 

occupational disease claim (Form CA-2) alleging that her federal employment required her to 

repetitively raise her right arm, which resulted in an occupational injury. She noted that she first 

1

5 U.S.C. § 8101 et seq.
2

became aware of her injury on December 10, 2019 and realized its relation to her federal 

employment on March 31, 2020.

OWCP received a cervical spine x-ray report dated December 10, 2019 from Dr. Rupesh P. 

Patel, a diagnostic radiologist. Dr. Patel related multilevel degenerative changes.

Appellant submitted a medical report dated December 10, 2019 from Dr. Tara Rakonski, a 

Board-certified family practitioner. Dr. Rakonski related that appellant had neck pain on her right 

side, numbness and tingling of her right arm, and acute pain of her right shoulder. She concluded

that appellant’s conditions were work related.

OWCP received medical reports dated December 18, 2019 and January 8, 2020 from

Dr. Rudolf R. Teschan, a Board-certified family practitioner. Dr. Teschan related that on 

December 10, 2019 appellant raised her right arm to remove mail from the processing machine 

and developed right shoulder pain, which radiated across her chest. He also advised that appellant 

had neck pain due to underlying degenerative disc disease and osteoarthritis. Dr. Teschan also 

provided notes of the same dates containing appellant’s work restrictions.

OWCP received a magnetic resonance imaging (MRI) scan dated January 23, 2020, which

demonstrated degenerative changes at C5-6 contributing to mild spinal canal stenosis and ventral 

indentation of the cord, as well as abnormal T2 cord signal, which could be seen with inflammatory 

or demyelinating conditions, vasculitis, less likely neoplasm.

In medical reports dated February 6 and 13, 2020, Dr. Teschan diagnosed C5-6 disc 

herniation and a C3-4 mild disc herniation, and noted appellant’s work restrictions.

In a development letter dated May 12, 2020, OWCP advised appellant that additional 

evidence was necessary to establish her claim. It advised her of the type of factual and medical 

evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30 

days to submit the necessary evidence.

In response to the development letter, appellant submitted work restrictions dated April 29

to May 29, 2020 from several medical providers.

In a medical report dated June 16, 2020, Dr. Teschan related that appellant had sustained 

right shoulder pain likely due to biceps tendinitis, chronic cervical pain, upper back and right 

cervical spasms, and paresthesia of the right upper extremity due to her claimed December 10, 

2019 employment injury.

OWCP continued to receive reports from medical providers, which provided work 

restrictions through July 15, 2020.

In a report dated July 8, 2020, Dr. Kenneth W. Reichert, a Board-certified neurosurgeon, 

diagnosed advanced degenerative spine disease.

By decision dated July 28, 2020, OWCP denied appellant’s claim, finding that there was 

no medical evidence containing a firm medical diagnosis in connection with the accepted 
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employment events. It concluded, therefore, that the requirements had not been met to establish 

an injury as defined by FECA.

On August 25, 2020 appellant requested a review of the written record before a 

representative of OWCP’s Branch of Hearings and Review. OWCP received additional medical 

evidence. An MRI scan of appellant’s right shoulder dated July 13, 2020 indicated findings of 

right rotator cuff tear. 

In a report dated August 19, 2020, Dr. Teschan opined that on December 10, 2019

appellant suffered severe pain in her right shoulder, neck, and upper back as a direct result of 

raising her arm above shoulder level repetitively while using a mail processing machine. He 

diagnosed shoulder full-thickness tear of the supraspinatus and infraspinatus tendons, with a 

labrum tear as a result of trauma. Dr. Teschan also attested that appellant’s December 10, 2019

work injury severely exacerbated her degenerative joint disease and osteoarthritis of the cervical 

spine and caused her muscle spasms in the neck and upper back on the right side.

On August 26, 2020 appellant was again seen by Dr. Reichart. He diagnosed cervical 

foraminal stenosis and recommended anterior cervical decompression.

In an August 26, 2020 report, Dr. Robert Sean Churchill, a Board-certified orthopedic 

surgeon, related that appellant had a well-documented right shoulder supraspinatus rotator cuff 

tear. He also noted that her left upper extremity complaints were more consistent with cervical 

radiculopathy.

OWCP continued to receive medical reports relating to appellant’s work restrictions. 

By decision dated February 3, 2021, OWCP denied appellant’s request for a review of the 

written record as untimely filed, finding that it was made more than 30 days after the July 28, 2020

merit decision OWCP further exercised its discretion and determined that the issue in this case 

could equally-well be addressed by requesting reconsideration before it, along with the submission 

of new evidence.

LEGAL PRECEDENT

Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title 

[relating to reconsideration], a claimant for compensation not satisfied with a decision of the 

Secretary under subsection (a) of this section is entitled, on request made within 30 days after the 

date of the issuance of the decision, to a hearing on [his] claim before a representative of the 

Secretary.”

2

Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a 

review of an adverse decision by a hearing representative. Initially, the claimant can choose 

between two formats, an oral hearing or a review of the written record.”

3

 The hearing request must 

2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. § 10.615.
4

be sent within 30 days (as determined by postmark or other carrier’s date marking) of the date of 

the decision for which a hearing is sought.4 OWCP has discretion, however, to grant or deny a 

request that is made after this 30-day period.5 In such a case, it will determine whether to grant a 

discretionary hearing and, if not, will so advise the claimant with reasons.6

ANALYSIS

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

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

OWCP’s regulations provide that a request for review of the written record must be made 

within 30 days of the date of the decision for which a review is sought. 

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. If the postmark is 

not legible, the request will be deemed timely unless OWCP has kept evidence of date of delivery 

on the record reflecting that the request is untimely.7 Otherwise, the date of the letter itself should 

be used.8

OWCP found that appellant’s request for a review of the record was untimely filed as it 

was filed more than 30 days after the issuance of OWCP’s July 28, 2020 merit decision. The 

Board finds, however, that the request for review of the written record was dated August 25, 2020 

and OWCP did not retain any postmark or other marking evidencing the date of delivery. As the 

date of the request for review of the written record, August 25, 2020, was within 30 days of the 

July 28, 2020 decision, the request was, therefore, timely filed. Accordingly, the Board finds that 

OWCP improperly denied appellant’s August 25, 2020 request for a review of the written record

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

4

Id. at § 10.616.

5 G.W., Docket No. 10-0782 (issued April23, 2010).

6

Id.

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 

2.1601.4(a)(September 2020). See T.B.,Docket No. 20-0158 (issued March 18, 2022).

8 K.B.,Docket No. 21-1038 (issued February 28, 2022);see J.H.,Docket No. 06-1565 (issued February 20, 2007);

James B. Moses, 52 ECAB 465 (2001) citing WilliamJ. Kapfhammer, 42 ECAB 271 (1990); see also Douglas 

McLean, 42 ECAB 759 (1991).
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CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the February 3, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: May 18, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board