B.K. and U.S. Postal Service, Mail Recovery Center, Atlanta, GA (Board decision, November 29, 2010)

ECAB final decision on a written review request. The Board affirmed OWCP’s denial of B.K.’s untimely request for review of the written record. It did not decide the underlying injury claim. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. 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).

Plain-English summary

B.K., a postal employee, asked OWCP to review the written record after it denied her claimed emotional injury. Her request was postmarked March 26, 2009, more than 30 days after the February 23 decision. The Board held that she had no right to written review after that deadline. It also found that OWCP reasonably declined to grant a late review in its discretion because she could seek reconsideration with new evidence. The Board affirmed the denial without reaching the injury claim.

Decision snapshot

• Authority: Written review requests under 5 U.S.C. § 8124(b)(1) and 20 C.F.R. § 10.616(a).
• Outcome: August 11, 2009 denial of written record review affirmed; injury claim not reviewed.
• Key point: OWCP considered the late request and reasonably directed B.K. to reconsideration.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.K., Appellant
)
)
and ) Docket No. 10-346
) Issued: November 29, 2010
U.S. POSTAL SERVICE, MAIL RECOVERY
)
CENTER, Atlanta, GA, 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
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On October 30, 2009 appellant filed a timely appeal of an August 11, 2009 decision of the Office of Workers’ Compensation Programs, denying her request for a review of the written record. Since more than 180 days elapsed from issuance of the merit decision of February 23, 2009 to the filing of this appeal, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction to review the merits of this case.1

ISSUE

The issue is whether the Office abused its discretion by denying appellant’s request for a review of the written record.

1
For Office decisions issued prior to November 19, 2008, the Board’s regulations provided up to one year to file an appeal. 20 C.F.R. § 5013(d)(2). For Office decisions issued on and after November 19, 2008, a claimant has 180 days to appeal. 20 C.F.R. § 501.3(e). FACTUAL HISTORY

On January 9, 2009 appellant filed a traumatic injury claim (Form CA-1) alleging that she sustained an emotional condition on November 12, 2008 as a result of harassment by her manager.2

In a February 23, 2009 decision, the Office denied appellant’s claim. It found that she did not establish the traumatic incident of November 12, 2008 as alleged and that the medical evidence was not sufficient to support her claim of injury.3

By letter postmarked March 26, 2009, appellant requested a review of the written record.

In a decision dated August 11, 2009, the Office denied appellant’s request, finding that it was untimely filed. It considered her request in its discretion and determined that the issue in her case could equally well be addressed by requesting reconsideration by the district Office and submitting evidence not previously considered.

LEGAL PRECEDENT

Section 8124(b)(1) of the Federal Employees’ Compensation Act 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 claim before a representative of the Secretary.”4 Section 10.615 of the federal regulations implementing this section of the Act provides that a claimant shall be afforded a choice of an oral hearing or a review of the written record.5 The request “must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the date of the decision for which a hearing is sought.”6 A claimant is entitled to a hearing or review of the written record as a matter of right if the request is filed within 30 days.7

While a claimant may not be entitled to a hearing or review of the written record as a matter of right if the request is untimely, the Office has the discretionary authority to grant the request and must properly exercise such discretion.8

2
The employer controverted the claim, noting that appellant was given an interview for disruptive conduct on the workroom floor. Appellant was placed on emergency placement. 3 On January 13, 2009 the Office apprised appellant of the need to submit additional factual and medical evidence in support of her claim.
4
5 U.S.C. § 8124(b)(1).
5
20 C.F.R. § 10.615.
6
Id. at § 10.616(a).
7
Leona B. Jacobs, 55 ECAB 753 (2004).
8
See id.; Cora L. Falcon, 43 ECAB 915 (1992); Mary B. Moss; 40 ECAB 640 (1989); Rudolph Bermann, 26 ECAB 354 (1975).

2
 ANALYSIS

The Office denied appellant’s traumatic emotional condition claim in a February 23, 2009 decision. It found that she failed to establish the November 12, 2008 incident at work and that the medical evidence was not sufficient to support her claim of injury.

Appellant filed her request for a review of the written record by an Office hearing representative in a letter postmarked on March 26, 2009, received by the Office on April 3, 2009. As her request was not filed within 30 days of the February 23, 2009 decision denying her claim, she was not entitled to a review of the record as a matter of right.

The Office exercised its discretionary authority with regard to appellant’s request. It notified her that the issue in her claim could be equally well addressed by requesting reconsideration by the district Office and submitted evidence not previously considered. The only limitation on the Office’s discretionary authority is reasonableness.9 There is no evidence that it abused its discretion by denying appellant’s request for a hearing under these circumstances.10 The Board has held that this is a reasonable exercise of the Office’s discretionary authority.11

CONCLUSION

The Board finds the Office did not abuse its discretion in denying appellant’s untimely request for review of the written record.

9
See Hubert Jones, Jr., 57 ECAB 467, 473 (2006).
10
See André Thyratron, 54 ECAB 257 (2002).
11
See G.W., 61 ECAB ___ (Docket No. 10-782, issued April 23, 2010); D.M., 60 ECAB ___ (Docket No. 08- 1814, issued January 16, 2009); Steven A. Andersen, 53 ECAB 367 (2002).

3
 ORDER

IT IS HEREBY ORDERED THAT the August 11, 2009 decision of the Office of Workers’ Compensation Programs be affirmed.

Issued: November 29, 2010
Washington, DC

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

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

4