United States Department of Labor

Employees’ Compensation Appeals Board

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M.F., Appellant

and

DEPARTMENT OF AGRICULTURE, RURAL 

DEVELOPMENT, San Juan, PR, Employer

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Docket No. 21-0878

Issued: January 6, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 17, 2021 appellant filed a timely appeal from a December 1, 2020 nonmerit 

decision of the Office of Workers’ Compensation Programs. As more than 180 has days elapsed 

from OWCP’s last merit decision, dated October 7, 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 to review the merits of this case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the December 1, 2020 decision, appellant submitted additional evidence to 

OWCP. 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 by an OWCP hearing representative as untimely filed, pursuant to 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On August 10, 2020 appellant, then a 54-year-old loan technician, filed a notice of 

recurrence (Form CA-2a) alleging a recurrence of anxiety and severe depressive disorder due to 

reprisals from management related to her Equal Employment Opportunity (EEO) complaint. She 

specifically stated that, while at work on June 3, 2020, she suffered a panic attack because of an 

e-mail discrepancy pertaining to an EEO complaint against management and was subsequently 

hospitalized. Appellant noted that the date of the original injury was June 3, 2020 and the date of 

recurrence was June 15, 2020.3 

Appellant was treated by Dr. Annette M. Barbosa Hernandez, a clinical psychologist, on 

August 19, 2020 who noted that appellant was hospitalized from June 3 through July 2, 2020 with 

symptoms of depression and anxiety that prevented her from working. In a separate report of even 

date, Dr. Hernandez noted treating appellant since 2015 for major depression due to her work 

environment. She reported that appellant had 12 psychiatric hospitalizations due to the 

exacerbation of her symptoms. Appellant reported being overworked, discriminated against, and 

ignored by her coworkers and supervisor. Dr. Hernandez opined that appellant was permanently 

disabled from work due to her emotional symptoms.

On August 20, 2020 appellant was treated by Dr. Angel E. Loyola Perez, a psychiatrist

specializing in major depressive disorder, recurrent, severe with psychotic symptoms, panic 

attacks, and generalized anxiety disorder. Dr. Perez reported that appellant had a history of 12 

psychiatric hospitalizations. She opined that the deterioration of appellant’s emotional health was 

the result of stressors related to her work environment, including harassment by a coworker, 

discrimination, verbal and emotional aggression by her supervisor, and a hostile work 

environment.

OWCP received a certification of multiple hospital stays from November 8, 2012 through 

July 2, 2020.

Dr. Perez treated appellant on July 9, 2020 for major depressive disorder. She indicated 

that appellant’s symptoms prevented her from working and recommended rest from July 9 through 

August 9, 2020.

On July 30, 2020 the employing establishment issued a non-disciplinary letter of 

instruction (LOI) due to appellant’s absence from work since June 3, 2020 for an ongoing medical 

3 The Board notes that appellant initially filed the Form CA-2a claiming a recurrence of her emotional condition 

claim under OWCP File No. xxxxxx396. However, OWCP developed this claim as an occupational disease claim

and assigned File No. xxxxxx250. Appellant’s claims have not been administratively combined. 
3

condition. It indicated that the medical documentation submitted in support of her claim was 

administratively unacceptable and provided her 15 days to submit appropriate documentation.

On August 5, 2020 appellant responded to the LOI and disputed the determination that her 

medical documentation was insufficient. She asserted that her supervisor was creating obstacles 

and improperly speculating about the validity of her doctors’ medical excuses in further retaliation 

for her filing an EEO complaint.

In a development letter dated September 3, 2020, OWCP advised appellant of the 

deficiencies of her claim. It advised her as to the type of factual and medical evidence needed and 

provided a questionnaire for her completion. By separate development letter of the same date, 

OWCP requested additional information from the employing establishment. It afforded both 

parties 30 days to respond.

In response to OWCP’s development letter, appellant submitted two statements dated 

August 21 and October 3, 2020 referencing psychiatrist and psychologist reports and requesting 

additional time to respond to OWCP’s questionnaire.

By decision dated October 7, 2020, OWCP denied appellant’s occupational disease claim, 

finding that the evidence of record was insufficient to establish the implicated employment factors. 

It concluded, therefore, that the requirements had not been met to establish an injury as defined by 

FECA.

In an appeal request form dated and received via OWCP’s Employees’ Compensation 

Operations & Management Portal (ECOMP) on November 7, 2020, appellant requested a review 

of the written record by a representative of OWCP’s Branch of Hearings and Review.

By decision dated December 1, 2020, OWCPdenied appellant’s request for a review of the 

written record as untimely filed, finding that her request was not made within 30 days of the 

October 7, 2020 OWCP decision as it was dated and received via ECOMP on November 7, 2020.

It further exercised its discretion and determined that the issue in this case could equally well be 

addressed by a request for reconsideration, along with the submission of new evidence.

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.”

4

 

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.5 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 

4

Supra note 1 at § 8124(b)(1).

5

20 C.F.R. §§ 10.616, 10.617.
4

postmark or other carrier’s date marking and before the claimant has requested reconsideration. 6 

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.7

ANALYSIS

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

record before an OWCP hearing representative 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 and received on November 7, 2020, 

it postdated OWCP’s October 7, 2020 decision by more than 30 days and, therefore, is untimely. 

Appellant was, therefore, not entitled to a review of the written record as a matter of right.8

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

such discretion.9 The Board finds that, in the December 1, 2020 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.10 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 by an OWCP hearing representative as untimely filed, pursuant to 5 U.S.C. § 8124(b).

6

Id. at § 10.616(a).

7 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 February6, 2018); Eddie Franklin, 51 ECAB 223 (1999); DelmontL. Thompson, 51 

ECAB 155 (1999).

8

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

9

Id.

10 Id.
5

ORDER

IT IS HEREBY ORDERED THAT the December 1, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

11

Issued: January 6, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

11 Upon return of the case record, OWCP should consider administratively combining appellant’s emotional 

condition claims,OWCP File Nos. xxxxxx396 and xxxxxx250.