United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.H., Appellant

and

DEPARTMENT OF AGRICULTURE, FOOD 

SAFETY & INSPECTION SERVICE, 

Minneapolis, MN, Employer

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Docket No. 19-1488

Issued: February 20, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On July 1, 2019 appellant filed a timely appeal from a June 20, 2019 nonmerit decision of 

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

from the last merit decision dated November 8, 2018 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.3

 

1 On appeal appellant requested an oral argument before the Board. By letter received on August 5, 2019, he

explained that he was withdrawing his request for oral argument as it would be a hardship to travel to Washington 

D.C. and he had mistakenly assumed oral argument before the Board would be held telephonically. 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the June 20, 2019 decision, OWCP and the Board 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 

evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether OWCP properly denied appellant’s request for an oral hearing before 

an OWCP hearing representative as untimely filed under 5 U.S.C. § 8124.

FACTUAL HISTORY

On January 14, 2016 appellant, then a 60-year-old food inspector, filed a traumatic injury 

claim (Form CA-1) alleging that on December 9, 2015 he injured his left knee and hip when he 

slipped and fell down stairs while in the performance of duty. OWCP accepted the claim for left 

side sciatica and aggravation of lumbar stenosis. Appellant received wage-loss compensation on 

the supplement rolls as of March 6, 2016 and on the periodic rolls as of October 16, 2016.

On September 12, 2018 OWCP issued a notice of proposed reduction of compensation 

based on appellant’s ability to earn wages as an office helper (Dictionary of Occupational Titles 

DOT 239.567-010), at the rate of $422.00 per week.

By decision dated November 8, 2018, OWCP finalized its proposed reduction of 

compensation benefits, finding that the position of office helper was medically and vocationally 

suitable, reasonably available and therefore representative of appellant’s wage-earning capacity.

On June 4, 2019 OWCP received appellant’s November 13, 2018 request for a telephonic 

hearing before an OWCP hearing representative regarding the November 8, 2018 decision. The 

request was postmarked May 22, 2019.

By decision dated June 20, 2019, OWCP denied appellant’s request for an oral hearing 

before an OWCP hearing representative, finding that his request was untimely as it was not filed 

within 30 days of the November 8, 2018 decision. After exercising its discretion, the Branch of 

Hearings and Review further found that the merits of the claim could equally well be addressed 

through the reconsideration process.

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

 

4 5 U.S.C. § 8124(b)(1).

5 20 C.F.R. §§ 10.616, 10.617.
3

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 an oral hearing before 

an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. § 8124.

OWCP’s regulations provide that a hearing request must 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.8 As appellant’s request was postmarked May 22, 2019, more than 30 days after 

OWCP’s November 8, 2018 decision, it was untimely filed and he was not entitled to an oral 

hearing as a matter of right.

9

Although appellant’s May 22, 2019 request for a hearing was untimely, OWCP has the 

discretionary authority to grant the request and it must exercise such discretion.10 The Board finds 

that, in the June 20, 2019 decision, OWCP’s hearing representative properly exercised discretion 

by determining that the issue in the case could be equally well addressed by a request for 

reconsideration before OWCP along with the submission of new evidence relevant to the issue at 

hand.

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, a clearly unreasonable 

exercise of judgment, or actions taken which are contrary to both logic and probable deductions 

from established facts.11 In this case, the evidence of record does not indicate that OWCP abused 

its discretion by denying appellant’s request for a telephonic hearing. Accordingly, the Board 

finds that OWCP properly denied his oral hearing request.12

On appeal appellant raises arguments relevant to the merits of this claim. The only issue 

before the Board, however, is whether OWCP properly denied his request for an oral hearing as 

untimely filed. As the Board lacks jurisdiction to review the underlying merits of appellant’s 

 

6

Id. at § 10.616(a).

7 P.C., Docket No. 19-1003 (issued December 4, 2019); M.G., Docket No. 17-1831 (issued February 6, 

2018); Eddie Franklin, 51 ECAB 223 (1999).

8 Supra note 6.

9 Supra note 7.

10 Id.

11 P.C., supra note 7; M.G., supra note 7; Samuel R. Johnson, 51 ECAB 612 (2000).

12 See J.O., Docket No. 17-0789 (issued May 15, 2018).
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claim, it cannot review his arguments regarding the November 8, 2018 loss of wage-earning 

capacity determination.13

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for an oral hearing before 

an OWCP hearing representative as untimely filed under 5 U.S.C. § 8124(b).

ORDER

IT IS HEREBY ORDERED THAT the June 20, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 20, 2020

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees' Compensation Appeals Board

Janice B. Askin, Judge

Employees' Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees' Compensation Appeals Board

 

13 See G.S., Docket No. 18-0388 (issued July 19, 2018).