United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

San Antonio, TX, Employer

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Docket No. 22-0361

Issued: July 8, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 12, 2022 appellant filed a timely appeal from an October 27, 2021 merit 

decision and a December 14, 2021 nonmerit decision of the Office of Workers’ Compensation 

Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the October 27, 2021 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 met her burden of proof to establish eligibility 

for continuation of pay (COP); and (2) whether OWCP properly denied appellant’s request for an 

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

FACTUAL HISTORY

On September 20, 2021 appellant, then a 24-year-old postal collect and delivery employee, 

filed a traumatic injury claim (Form CA-1) alleging that she sustained a concussion, spinal sprain, 

and right elbow sprain on August 2, 2021 during a motor vehicle accident while in the performance 

of duty. She stopped work on the date of injury. On the reverse side of the claim form, appellant’s 

supervisor, A.P., controverted her request for COP because notice of the injury had not been 

reported within 30 days, noting that the claim was not received until September 20, 2021. 

Appellant submitted medical evidence in support of her claim.

OWCP, by development letter dated September 21, 2021, informed appellant of the 

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

establish her claim and provided a questionnaire for her completion. In a separate development 

letter of even date, OWCP requested that the employing establishment submit a copy of an accident 

report or a police report and comment on whether it agreed with appellant’s statements. It afforded 

both parties 30 days to respond.

In a response memorandum dated September 27, 2021, appellant explained that her claim 

was untimely filed because her supervisor would not submit her paperwork. She further explained 

that her supervisor had just informed her about entitlement to compensation benefits due to an “onthe-clock” work injury.

Appellant submitted a police report regarding the August 2, 2021 employment incident. 

She also submitted additional medical evidence. 

By decision dated October 27, 2021, OWCP accepted appellant’s claim for thoracic spine

ligament sprain, and right elbow contusion.

In a separate decision also dated October 27, 2021, OWCP denied appellant’s claim for 

COP, finding that she had failed to report the August 2, 2021 employment injury on a form 

approved by OWCP within 30 days, as required. It advised her that the denial of COP did not 

affect her entitlement to compensation, and that she could, therefore, file a claim for compensation 

(Form CA-7) for lost wages due to her accepted employment injury.

OWCP continued to receive medical and factual evidence.

On November 28, 2021 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review regarding the October 27, 2021 decision denying her 

claim for COP. 
3

OWCP thereafter received additional medical evidence.

By decision dated December 14, 2021, OWCP denied appellant’s request for an oral 

hearing as untimely filed, finding that her request was not made within 30 days of the October 27, 

2021 decision as it was not requested until November 28, 2021. It further exercised discretion and 

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

reconsideration before OWCP along with the submission of new evidence.

LEGAL PRECEDENT -- ISSUE 1

Section 8118 of FECA3 provides for payment of continuation of pay, not to exceed 45 days, 

to an employee who has filed a claim for a period of wage loss due to traumatic injury with his or 

her immediate supervisor on a form approved by the Secretary of Labor within the time specified 

in section 8122(a)(2) of this title. Section 8122(a)(2) provides that written notice of injury must 

be given as specified in section 8119. The latter section provides in part that notice of injury shall 

be given in writing within 30 days after the injury.4 The context of section 8122 makes clear that 

this means within 30 days of the injury.5

OWCP’s regulations provide, in pertinent part, that to be eligible for COP, an employee 

must: (1) have a traumatic injury which is job related and the cause of the disability and/or the 

cause of lost time due to the need for medical examination and treatment; (2) file Form CA-1 

within 30 days of the date of the injury; and (3) begin losing time from work due to the traumatic 

injury within 45 days of the injury.6

The employee must provide a written report on a Form CA-1 to the employing 

establishment within 30 days of the injury.7 OWCP’s procedures provide that another OWCPapproved form, such as CA-2, CA-2a, or CA-7 forms, which contain words of claim, can be used 

to satisfy timely filing requirements.8

3

Id. at § 8118.

4

Id. at § 8119(a), (c). See also Gwen Cohen-Wise, 54 ECAB 732 (2003).

5 T.N., Docket No. 21-0402 (issued January 31, 2022); E.M., Docket No. 20-0837 (issued January 27, 2021); J.S., 

Docket No. 18-1086 (issued January 17, 2019); Robert M. Kimzey, 40 ECAB 762, 763-64 (1989); Myra Lenburg, 36 

ECAB 487, 489 (1985).

6

20 C.F.R. § 10.205(a)(1-3);see also J.M., Docket No. 09-1563 (issued February 26, 2010); Dodge Osborne, 44 

ECAB 849, 855 (1993); WilliamE. Ostertag, 33 ECAB 1925(1982). .

7

Id. at § 10.210(a).

8 Federal (FECA) Procedure Manual, Part 2 --Claims, Continuation of Pay and Initial Payments, Chapter 2.807.5 

(June 2012).
4

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish eligibility for 

COP.

Appellant filed written notice of her traumatic injury on September 20, 2021, which was 

more than 30 days after her August 2, 2021 employment injury. Because she filed her claim on 

September 20, 2021, the Board finds that it was not filed within 30 days of the injury, as specified 

in sections 8118(a) and 8122(a)(2) of FECA.9 In her September 27, 2021 response to OWCP’s 

September 21, 2021 development letter, appellant reported that her supervisor refused to submit 

her paperwork and delayed telling her that she was entitled to compensation benefits for a workrelated injury. The Board finds that OWCP properly denied COP as appellant did not file her 

claim within the requisite 30 days from the date of injury.10

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 requestmade 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.”

11

 

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.12 A claimantis entitled to a hearingor 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. 13 

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.14

ANALYSIS -- ISSUE 2

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

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

9

5 U.S.C. §§ 8118(a), 8122(a)(2).

10 20 C.F.R. § 10.210(a); T.N.,supranote 5; J.S., Docket No. 18-1086 (issued January 17, 2019).

11 5 U.S.C. § 8124(b)(1).

12 20 C.F.R. §§ 10.616, 10.617.

13 Id. at § 10.616(a).

14 M.F.,Docket No. 21-0878 (issued January6, 2022); 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 February 6, 2018); Eddie 

Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).
5

OWCP’s regulations provide that the request for an oral hearing must be made within 30 

days of the date of the decision for which review is sought.15 Because appellant requested a hearing

on November 28, 2021, it postdated OWCP’s October 27, 2021 decision by more than 30 days 

and, therefore, is untimely. Appellant was, therefore, not entitled to an oral hearing as a matter of 

right.16

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

such discretion.17 The Board finds that, in the December 14, 2021 decision, OWCP properly 

exercised its discretion by determining that the issue in the case could be equally well addressed 

through a request for reconsideration before OWCP, 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.18 In this case, the evidence of record does not indicate that OWCP abused 

its discretion by denying appellant’s request for an oral hearing. Accordingly, the Board finds that 

OWCP properly denied her request for an oral hearing pursuant to 5 U.S.C. § 8124(b) as untimely 

filed.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish eligibility for 

COP. The Board further finds that OWCP properly denied appellant’s request for an oral hearing 

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

15 Supra note 7; Federal (FECA) Procedure Manual, Part 2 --Claims, Hearings and Reviews of the Written Record, 

Chapter 2.1601.4a (September 2020).

16 See D.S.,Docket No. 21-1296 (issuedMarch23, 2022); P.C.,Docket No. 19-1003 (issued December 4, 2019).

17 Id.

18 Id.
6

ORDER

IT IS HEREBY ORDERED THAT the October 27 and December 14, 2021 decisions of 

the Office of Workers’ Compensation Programs are affirmed.

Issued: July 8, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board