United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.S., Appellant

and

DEPARTMENT OF THE NAVY, MARINE 

CORPS LOGISTICS BASE, Barstow, CA, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 23-1022

Issued: January 29, 2024

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

JANICE B. ASKIN, Judge

JURISDICTION

On July 27, 2023 appellant filed a timely appeal from an April 10, 2023 nonmerit decision 

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

from the last merit decision dated October 13, 2022 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).

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On August 4, 2022 appellant, then a 62-year-old heavy mobile equipment mechanic, filed 

an occupational disease claim (Form CA-2) alleging that he developed hearing loss due to factors 

of his federal employment, including working in the transmission/engine shop in the proximity of 

running engine dynamometers. He noted that he first became aware of his condition and realized 

its relation to his federal employment on February 6, 2006. Appellant did not stop work.

OWCP received employing establishment audiograms dated February 6, 2006 through 

August 24, 2016, which revealed asymmetric high and low frequency hearing loss and tinnitus.

In a development letter dated August 10, 2022, OWCP informed appellant of the 

deficiencies of his claim. It explained the type of additional evidence required and provided a 

questionnaire for his completion. OWCP provided appellant 30 days to respond.

By decision dated October 13, 2022, OWCP denied appellant’s occupational disease claim, 

finding that it was untimely filed pursuant to 5 U.S.C. § 8122. It determined that the evidence of 

record did not support that he filed his claim within three years of the date of injury or date of last 

exposure, or that his supervisor had actual knowledge of the claimed condition within 30 days of 

the date of injury.

In an appeal request form postmarked March 13, 2023, appellant requested a review of the 

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

OWCP received audiograms performed as part of the employing establishment’s hearing

conservation program dated May 5, 1983 through March 1, 2023, which revealed progressive 

bilateral hearing loss and tinnitus.

Appellant submitted a copy of the August 10, 2022 OWCP development letter. He did not 

respond to the provided questionnaire. 

In a statement dated March 6, 2023, appellant indicated that he began working for the 

employing establishment in May 1983 in the transmission and engine shop, which built 

transmissions, drive trains, and engines. From 1986 through 2008, he worked with engine and 

transmission dynamometers. Appellant indicated that, in 2001, his base line hearing changed and 

in 2006 the employing establishment required double hearing protection (earplugs and earmuffs). 

He noted that, in August 2008, he was transferred out of the transmission and engine shop, but

maintained that during his employment at that location he sustained permanent hearing loss and 

tinnitus. Appellant was prescribed hearing aids in 2019.

By decision dated April 10, 2023, OWCP’s hearing representative denied appellant’s 

request for a review of the written record, finding that it was untimely filed. It further exercised 

its discretion and determined that the issue in this case could equally well be addressed by 

requesting reconsideration before OWCP, along with the submission of new evidence.
3

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.”

2

 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.3 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 reconsideration. 4 

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.5

ANALYSIS

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).

As noted above, a request for a review of the written record must be made within 30 days 

after the date of the issuance of an OWCP final decision. Appellant, on March 13, 2023, requested 

a review of the written record. As the request was submitted more than 30 days following issuance 

of OWCP’s October 13, 2022 decision, the Board finds that it was untimely filed. Appellant was, 

therefore, not entitled to a review of the written record as a matter of right. 6 Section 8124(b)(1) is 

unequivocal on the time limitation for requesting a review of the written record. 7

Although appellant’s request for a review of the written record was untimely filed, OWCP 

has the discretionary authority to grant the request and it must exercise such discretion.8 The Board 

finds that, in the April 10, 2023 decision, OWCP properly exercised 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 th e only 

2

Id. at § 8124(b).

3

20 C.F.R. §§ 10.616, 10.617.

4

Id. at § 10.616(a).

5 M.F., Docket No. 21-0878 (issued January 6, 2022); W.H., Docket No. 20-0562 (issued August6, 2020); P.C., 

Docket No. 19-1003 (issued December 4, 2019); Eddie Franklin, 51 ECAB 223 (1999); DelmontL. Thompson, 51 

ECAB 155 (1999).

6

See K.B., Docket No. 21-1038 (issued February 28, 2022); M.F., Docket No. 21-0878 (issued January 6, 2022);

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

7

Supra note 5. See also L.S., Docket No. 18-0264 (issued January 28, 2020).

8

Supra note 6.
4

limitation on OWCP’s authority is reasonableness.9 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.10 In this case, the 

evidence of record does not indicate that OWCP abused its discretion by denying 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 requests for a review of the written 

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

ORDER

IT IS HEREBY ORDERED THAT the April 10, 2023 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 29, 2024

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

9 A.M., Docket No. 20-1575 (issued May 24, 2021); R.M., Docket No. 19-1088 (issued November 17, 2020). See 

also E.S., Docket No. 18-1750 (issued March 11, 2019).

10 A.M., id.