United States Department of Labor

Employees’ Compensation Appeals Board

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R.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

WEST PALM BEACH VA MEDICAL CENTER, 

West Palm Beach, FL, Employer

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Docket No. 22-0755

Issued: October 28, 2022

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 18, 2022 appellant filed a timely appeal from a March 8, 2022 nonmerit decision 

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

from the last merit decision, dated July 19, 2021, 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 issuance of the March 8, 2022decision, 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

ISSUE

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

pursuant to 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On August 31, 2015 appellant, then a 51-year-old motor vehicle operator, filed a traumatic 

injury claim (Form CA-1) alleging that on February 11, 2015he sustained a left elbow sprain/strain

while in the performance of duty. He noted that the handle on a biohazardous equipment cooler 

that he was removing from his vehicle dislodged and caused him to twist his left elbow in a 

counterclockwise position. On October 13, 2015 OWCP accepted appellant’s claim for left elbow 

sprain.3

By decisions dated October 4, 2016 and April 12, 2018, OWCP subsequently expanded the 

acceptance of appellant’s claim to include unspecified sprain of left elbow, lesion of ulnar nerve, 

right and left upper limb, sprain of elbow and forearm, radial collateral ligament, and aggravation 

of preexisting spondylosis, cervical region.

By decision dated March 15, 2021, OWCP denied expansion of the acceptance of 

appellant’s claim to include bilateral carpal tunnel syndrome (CTS). 

On March 16, 2021 OWCP notified appellant of its proposed termination of his wage-loss 

compensation under 20 C.F.R. § 10.500(a) as he had not accepted an August 20, 2020 offered 

temporary light-duty assignment of transportation administrative assistant within his work 

restrictions. It afforded him 30 days to accept the assignment or provide reasons to justify his 

refusal.

On April 22, 2021 appellant requested reconsideration regarding the March 15, 2021 denial 

of expansion.

By decision dated April 26, 2021, OWCP terminated appellant’s wage-loss compensation, 

effective that date, pursuant to 5 U.S.C. § 10.500(a). However, appellant remained eligible for 

medical benefits. 

OWCP, by decision dated July 19, 2021, vacated the March 15, 2021 decision denying 

expansion, finding that the medical evidence of record was sufficient to establish that appellant 

sustained bilateral CTS causally related to his accepted employment injury. In a separate decision 

of even date, it formally accepted his claim for bilateral CTS.

On July 21, 2021 appellant requested reconsideration of the April 26, 2021 termination 

decision. 

3 By decision dated August 12, 2016, OWCP denied appellant’s request for authorization of left elbow revision 

ulnar nerve surgery. 
3

In an August 11, 2021 decision, OWCP denied appellant’s request for reconsideration of 

the merits of his claim, pursuant to 5 U.S.C. § 8128(a),regarding the termination of his wage-loss 

compensation. 

On February 22, 2022 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review regarding the April 26, 2021 decision.

By decision dated March 8, 2022, OWCP’s Branch of Hearings and Review denied 

appellant’s February 22, 2022 request for an oral hearing, noting that he had previously requested 

reconsideration. It explained that, under 5 U.S.C. § 8124(b)(1), he was not entitled to a hearing 

on the same issue as a matter of right. OWCP also exercised its discretion and considered whether 

to grant a discretionary hearing and found that the issue could be equally-well addressed by 

requesting reconsideration and submitting evidence not previously considered. 

LEGAL PRECEDENT

A claimant dissatisfied with an OWCP decision shall be afforded an opportunity for either 

an oral hearing or a review of the written record.4 Section 8124(b) of FECA, concerning a 

claimant’s entitlement to a hearing, states that: “Before review under section 8128(a) of this title, 

a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request 

made within 30 days after the date of issuance of the decision, to a hearing on his or her claim 

before a representative of the Secretary.”

5

 OWCP’s regulations further explain that the claimant 

must have not previously submitted a reconsideration request (whether or not it was granted) on 

the same decision.

6

 Although a claimant who has previously sought reconsideration is not, as a 

matter of right, entitled to a hearing or review of the written record, the Branch of Hearings and 

Review may exercise its discretion to either grant or deny a hearing following reconsideration.7

ANALYSIS

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

pursuant to 5 U.S.C. § 8124(b).

In its August 11, 2021 decision, OWCP denied his request to reopen his case for further 

merit review under 5 U.S.C. § 8128(a). Subsequently, on February 22, 2022 appellant requested 

an oral hearing before a representative of OWCP’s Branch of Hearings and Review. As he had 

previously requested reconsideration of OWCP’sApril 26, 2021 merit decision under section 8128 

of FECA, he was not entitled to an oral hearing as a matter of right under section 8124(b)(1).8 

4

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.615.

5

Id. at § 8124(b)(1).

6

Id.

7

See H.T., Docket No. 20-1318 (issued April27, 2021); E.S., Docket No. 19-1144 (issued August3, 2020); J.C., 

Docket No. 19-1293 (issued December 16, 2019); T.M., Docket No. 18-1418 (issued February 7, 2019); M.W., Docket 

No. 16-1560 (issued May 8, 2017); D.E., 59 ECAB 438 (2008); Hubert Jones, Jr., 57 ECAB 467 (2006).

8

20 C.F.R. §10.616(a); H.T., id.; J.H., Docket No. 17-1796 (issued February 6, 2018).
4

OWCP properly exercised its discretion and determined that the issue in the case could be equallywell addressed through a request for reconsideration and the submission of new evidence. 9

 

Therefore, the Board finds that OWCP, in its March 8, 2022 decision, properly denied appellant’s 

February 22, 2022 request for an oral hearing.

CONCLUSION

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

pursuant to 5 U.S.C. § 8124(b).

ORDER

IT IS HEREBY ORDERED THAT the March 8, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: October 28, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

9

Id.