United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.O., Appellant

and

U.S. POSTAL SERVICE, PENSACOLA 

PROCESSING & DISTRIBUTION CENTER, 

Pensacola, FL, Employer

__________________________________________

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Docket No. 23-0807

Issued: October 30, 2023

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 26, 2023 appellantfiled a timely appealfroma March 16, 2023 nonmerit decision

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

from OWCP’s last merit decision, dated September 30, 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.

2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the March16, 2023 nonmerit decision, OWCP and the Board received additional 

evidence. The Board’s Rules of Procedureprovides: “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 review of the written 

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

FACTUAL HISTORY

On July 6, 2018 appellant, then a 59-year-old mail processing clerk, filed a traumatic injury 

claim (Form CA-1) alleging that on July 4, 2018 she strained her back when she pushed a rack to 

the feederwhile in the performance of duty. She did not stop work. On November 5, 2018 OWCP 

accepted the claim for sprain of ligaments of the thoracic spine. It thereafter expanded acceptance 

of the claim to include spondylosis of the thoracic region on the right from T7 to T10. 

On August 2, 2022 appellant filed a claim for a schedule award (Form CA-7). In support 

of her claim, she submitted an April 8, 2020 medical report from Dr. Michael Gilmore, a Boardcertified orthopedic surgeon, who provided physical examination findings and diagnosed thoracic 

kyphosis, scapular dyskinesia, and an unspecific injury of shoulder and upper arm. Dr. Gilmore 

opined that appellant had reached maximum medical improvement and that she had two percent 

permanent impairment. 

On September 21, 2022 OWCP referred the record and a statement of accepted facts to

Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as a district medical adviser 

and requested that he evaluate appellant’s permanent impairment under the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides) and The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth 

Edition (July/August 2009) (The Guides Newsletter).

3

 

In a September 28, 2022 report, Dr. Katz found no ratable impairment. 

By decision dated September 30, 2022, OWCP denied appellant’s schedule award claim. 

On February 16, 2023 appellant requested a review of the written record by a representative 

of OWCP’s Branch of Hearings and Review.

By decision dated March 16, 2023, OWCP 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 the case could equally well be addressed by a request for reconsideration before 

OWCP along with the submission of new evidence supporting her schedule award claim. 

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 

3 A.M.A., Guides (6th ed. 2009).
3

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 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 review of the written 

record by 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 submitted on February 16, 2023 it

postdated OWCP’s September 30, 2022 decision by more than 30 days and, accordingly, was

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 March 16, 2023 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 establish that OWCP 

4

Supra note 1 at § 8124(b)(1).

5

20 C.F.R. §§ 10.616, 10.617.

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 February 6, 2018); Eddie Franklin, 51 ECAB 223 (1999); DelmontL. Thompson, 51 

ECAB 155 (1999).

8

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).

9

Id.

10 Id.
4

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 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 review of the written 

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

ORDER

IT IS HEREBY ORDERED THAT the March 16, 2023 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 30, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board