United States Department of Labor

Employees’ Compensation Appeals Board

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T.B., Appellant

and

DEPARTMENT OF JUSTICE, U.S. MARSHALS 

SERVICE, Arlington, VA, Employer

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Docket No. 20-0158

Issued: March 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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 28, 2019 appellant filed a timely appeal from an August 22, 2019 merit 

decision and an October 10, 2019 nonmerit decision of the Office of Workers’ Compensation 

Programs (OWCP).1 Pursuant to the Federal Employees’ Compensation Act2(FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 3

1 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of appellant’s oral argument request, he asserted that oral argument should be granted so that he will have an 

opportunity to establish his claim. The Board, in exercising its discretion, denies appellant’s request for oral argument 

because the arguments on appeal can adequately be addressed in a decision based on a review of the case record. Oral 

argument in this appeal would further delay issuance of a Board decision and not serve a useful purpose. As such, the 

oral argument request is denied and this decision is based on the case record as submitted to the Board.

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, followingthe October 10, 2019 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

ISSUES

The issues are: (1) whether appellant has established a permanent impairment of a 

scheduled member or function of the body warranting a schedule award; and (2) whether OWCP 

properly denied appellant’s request for an oral hearing as untimely filed under 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On February 7, 2017 appellant, then a 51-year-old inspector, filed a traumatic injury claim 

(Form CA-1) alleging that on January 30, 2017 he sustained a lacerated lower lip when he fell 

while in the performance of duty. He stopped work on January 30, 2017.

On January 30, 2019 OWCP accepted the claim for laceration without foreign body of 

lip, initial encounter.

On March 1, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. 

In a March 12, 2019 development letter, OWCP advised appellant that FECA provided a 

schedule award, not to exceed $3,500.00, for serious disfigurement of the face, head, or neck if 

such disfigurement was likely to handicap an individual in securing or maintaining employment.

It further provided instructions for submitting photographs of the claimed disfigurement. OWCP 

requested that appellant complete an attached disfigurement award application form, and that he 

arrange for an attending physician to complete and submit the f orm. No further response was 

received.

By decision dated August 22, 2019, OWCP denied appellant’s claim for a schedule award

finding that the evidence of record failed to establish permanent impairment of a scheduled 

member or function of the body.

On September 26, 2019 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review.

By decision dated October 10, 2019, OWCP denied appellant’s request for an oral hearing 

as untimely filed. The decision noted that his request dated September 26, 2019, was not made 

within 30 days of OWCP’s August 22, 2019 decision. As such, appellant was not entitled to a 

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

hearing, noting that he could instead file for reconsideration and submit new evidence establishing 

an employment-related impairment due to his accepted January 30, 2017 employment injury.

LEGAL PRECEDENT -- ISSUE 1

It is the claimant’s burden of proof to establish permanent impairment of a scheduled 

member or function of the body as a result of an employment injury.4 To support a schedule award, 

the file must contain competent medical evidence which shows that the impairment has reached a 

4 D.F., Docket No. 18-1337 (issued February 11, 2019); Tammy L. Meehan, 53 ECAB 229 (2001).
3

permanent and fixed state and indicates the date on which this occurred, describes the impairment 

in sufficient detail so that it can be visualized on review, and computes the percentage of 

impairment in accordance with the A.M.A., Guides.

5

Section 8107(c)(21) of FECA provides that payment of compensation not to exceed 

$3,500.00 may be made for disfigurement of the face, head, or neck which is likely to handicap 

the claimant in securing or maintaining employment.6 OWCP procedures further provide that a 

district medical adviser (DMA)will be asked to review such claims and to evaluate the employee’s 

disfigurement. If the DMA finds that maximum medical improvement (MMI) has occurred, he or 

she will review the photographs submitted along with the medical evidence of record and place a 

memorandum in the file describing the disfigurement and stating whether MMI has occurred. If 

the DMA finds MMI has occurred, the concurrence of the district director or assistant district 

director must be obtained. Following the file review, the district director or assistant district 

director will also write a memorandum which contains a description of the disfigurement. 7

ANALYSIS -- ISSUE 1

The Board finds that appellant has not established permanent impairment of a scheduled 

member or function of the body warranting a schedule award.

As noted above, section 8107(c)(21) of FECA provides that payment of compensation not 

to exceed $3,500.00 may be made for disfigurement of the face, head, or neck which is likely to 

handicap the claimant in securing or maintaining employment. 8 The Board finds that OWCP 

properly followed its procedures in determining that appellant was not entitled to an award for 

facial disfigurement.9

In a development letter dated March 12, 2019, OWCP advised appellant of the 

requirements for a schedule award. However, appellant did not submit medical evidence in 

5 B.J., Docket No. 19-0960 (issued October 7, 2019).

6

5 U.S.C. § 8107(c)(21).

7 Federal (FECA) Procedure Manual, Part 2 --Claims, Schedule Awards and Permanent Disability Claims, Chapter 

2.808.10 (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.5 (January 2010); see J.S., 

Docket No. 19-1226 (issued December 23, 2019); see L.J., Docket No. 13-0104 (issued October 21, 2013).

8

5 U.S.C. § 8107(c)(21).

9 Federal (FECA) Procedure Manual, Part 2 --Claims, Schedule Awards and Permanent Disability Claims, Chapter 

2.808.10 (February2013); see also Part 3 --Medical, Schedule Awards, Chapter 3.700.5 (January 2010).
4

support of his claim for a schedule award. The Board thus finds that he has not met his burden of 

proof.

Appellant may request a schedule award or increased schedule award for his facial 

disfigurement at any time based on new medical evidence.

LEGAL PRECEDENT -- ISSUE 2

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.10 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.11 A claimantis 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.12 

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.13

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s September 26, 2019 request for 

an oral hearing as untimely filed pursuant to 5 U.S.C. § 8124(b).

On September 26, 2019 appellant requested an oral hearing before a representative of 

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

August 22, 2019 decision.14 Section 8124(b)(1) is unequivocal on the time limitation for 

requesting a hearing.15 As such, the request was untimely and appellant was not entitled to an oral 

hearing as a matter of right.

The Board further finds that OWCP, in its October 10, 2019 decision, properly exercised 

its discretionary authority by noting that it had considered the matter and denied appellant’s request 

10 5 U.S.C. § 8124(b)(1).

11 20 C.F.R. §§ 10.616, 10.617, and 10.618.

12 Id. at § 10.616(a).

13 J.T., Docket No. 18-0664 (issued August12, 2019); Eddie Franklin, 51 ECAB 223 (1999); DelmontL. 

Thompson, 51 ECAB 155 (1999).

14 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 2.1601.4(a) (October 2011). 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.

15 See M.M., Docket No. 19-1171 (issued October 22, 2019); WilliamF. Osborne, 46 ECAB 198 (1994).
5

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

application.

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 

from established facts.16 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.

17

CONCLUSION

The Board finds that appellant has not established permanent impairment of a scheduled 

member or function of the body warranting a schedule award. The Board further finds that OWCP 

properly denied his September 26, 2019 request for an oral hearing as untimely filed pursuant to 5 

U.S.C. § 8124(b).

ORDER

IT IS HEREBY ORDERED THAT the October 10 and August 22, 2019 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: March 18, 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

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

17 J.G., Docket No. 19-0555 (issued March14, 2019).