A.L. and U.S. Postal Service, Post Office, Portland, ME (Board decision, March 9, 2010)

ECAB final decision. The Board affirmed OWCP’s March 17, 2009 denial of A.L.’s oral hearing request as untimely. It lacked jurisdiction to review the underlying injury claim on the merits. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board specifies another period. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A.L., a postal mail carrier, claimed a lower back strain from lifting an overhead door. OWCP denied his injury claim on December 15, 2008. His undated request for an oral hearing arrived on February 3, 2009, after the 30-day deadline. The Board found that OWCP had considered whether to grant a late hearing and reasonably directed him to the reconsideration process instead. It affirmed the hearing denial and did not decide the underlying injury claim.

Decision snapshot

• Authority: Hearing requests under 5 U.S.C. § 8124(b)(1) and 20 C.F.R. § 10.616(a).
• Outcome: March 17, 2009 hearing denial affirmed; injury claim merits not reviewed.
• Key point: An untimely hearing request did not give A.L. a hearing as of right, and OWCP did not abuse its discretion by denying one.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.L., Appellant
)
)
and ) Docket No. 09-1851
) Issued: March 9, 2010
U.S. POSTAL SERVICE, POST OFFICE,
)
Portland, ME, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION

On July 8, 2009 appellant filed a timely appeal from a March 17, 2009 nonmerit decision denying his request for a hearing. As over 180 days have passed since the last merit decision in this case, dated December 15, 2008, pursuant to 20 C.F.R. § 501.3(e), the Board lacks jurisdiction over the merits of appellant’s claim.

ISSUE

The issue is whether the Office properly denied appellant’s request for an oral hearing as untimely.

FACTUAL HISTORY

On November 7, 2008 appellant, a 58-year-old mail carrier, filed a traumatic injury claim (Form CA-1) in which he alleges he sustained lower back strain on November 3, 2008 while lifting an overhead door. Appellant submitted evidence supporting his claim, and by decision dated December 15, 2008, the Office denied the claim because the evidence of record did not demonstrate that the medically diagnosed injury resulted from the identified employment incident.

Appellant requested an oral hearing. His hearing request was undated. The record does not contain an envelope bearing a postmark or other carrier’s marking. The Office received appellant’s hearing request on February 3, 2009.

By decision dated March 17, 2009, the Office denied appellant’s hearing request because it was untimely filed.

LEGAL PRECEDENT

A claimant dissatisfied with a decision of the Office shall be afforded an opportunity for an oral hearing or, in lieu thereof, a review of the written record.1 A request for either an oral hearing or a review of the written record must be submitted, in writing, within 30 days of the date of the decision for which a hearing is sought. If the request is not made within 30 days or if it is made after a reconsideration request, a claimant is not entitled to a hearing or a review of the written record as a matter of right.2 The Board has held that the Office, in its broad discretionary authority in the administration of the Act has the power to hold hearings in certain circumstances where no legal provision was made for such hearings and that the Office must exercise this discretionary authority in deciding whether to grant a hearing.3 The Office’s procedures, which require the Office to exercise its discretion to grant or deny a hearing when the request is untimely or made after reconsideration, are a proper interpretation of the Act and Board precedent.4

If the claimant is not entitled to a hearing or review (i.e., the request was untimely, the claim was previously reconsidered, etc.), the Branch of Hearings and Review will determine whether a discretionary hearing or review should be granted and, if not, will so advise the claimant, explaining the reasons.5

ANALYSIS

Appellant’s request for an oral hearing before the Branch of Hearings and Review was not dated nor does the record contain its envelope bearing a postmark or other carrier’s marking.6 Appellant’s hearing request was received on February 3, 2009, more than 30 days after the Office’s December 15, 2008 decision. Therefore, his request for an oral hearing was not timely

1
5 U.S.C. § 8124(b)(1).
2
Claudio Vazquez, 52 ECAB 496 (2001).
3
Marilyn F. Wilson, 52 ECAB 347 (2001).
4
Claudio Vazquez, supra note 2.
5
Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).
6
20 C.F.R. § 10.616(a).

2 and he was not entitled to a hearing as a matter of right.7 The Branch of Hearings and Review exercised its discretion in denying appellant’s request for an oral hearing by finding that he could request reconsideration and submit evidence not previously considered that establishes his claim was filed in a timely manner.

The Branch of Hearings and Review, in its March 17, 2009 decision, properly exercised its discretion in determining whether to grant appellant’s hearing request and noted that it had reviewed his claim and found that the issues involved in his claim could be equally addressed through submitting additional evidence and requesting reconsideration or appeal to the Board. Thus, the Board finds that the Branch of Hearings and Review did not abuse its discretionary authority in denying appellant’s untimely request for a hearing.

CONCLUSION

The Board finds the Office properly denied appellant’s request for an oral hearing as untimely.

ORDER

IT IS HEREBY ORDERED THAT the March 17, 2009 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 9, 2010
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7
Id.

3