G.W. and Department of the Treasury, Internal Revenue Service, Atlanta, GA (Board decision, April 23, 2010)

ECAB final decision. The Board affirmed OWCP’s refusal to grant an oral hearing; it did not review the injury claim’s 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

G.W., an IRS insolvency specialist, sought a hearing after OWCP denied her claim for a hip injury from a workplace fall. Her hearing request was postmarked after the 30-day deadline. The Board found that she had no hearing right at that point and that OWCP reasonably declined a discretionary hearing because she could seek reconsideration. The Board lacked jurisdiction to review the earlier injury denial on this appeal. It affirmed only the hearing decision.

Decision snapshot

• Authority: FECA hearing right, 5 U.S.C. § 8124(b)(1); hearing deadline, 20 C.F.R. § 10.616(a).
• Outcome: August 20, 2009 denial of an oral hearing affirmed.
• Key point: The late request could be denied when reconsideration remained an available route.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
G.W., Appellant
)
)
and ) Docket No. 10-782
) Issued: April 23, 2010
DEPARTMENT OF THE TREASURY,
)
INTERNAL REVENUE SERVICE,
)
Atlanta, GA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On January 27, 2010 appellant filed a timely appeal from the August 20, 2009 decision of the Office of Workers’ Compensation Programs, which denied a request for an oral hearing before an Office hearing representative. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board only has jurisdiction to review this nonmerit decision.1

ISSUE

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

1
Appellant also identified a June 23, 2009 merit decision of the Office, which denied her claim that she sustained an injury in the performance of duty on April 29, 2009. The Board notes that any notice of appeal from Office decisions issued on and after November 19, 2008 must be filed within 180 days from the date of issuance of that decision. The deadline for appealing the Office’s June 23, 2009 decision was December 21, 2009. The Board has no jurisdiction to review the June 23, 2009 decision. See 20 C.F.R. § 501.3(e). FACTUAL HISTORY

On May 7, 2009 appellant, then a 54-year-old insolvency specialist, filed a claim alleging that she sustained a right hip injury in the performance of duty on April 29, 2009: “Employee went to sit in her desk chair, chair rolled backwards and she fell to the floor.”

In a June 23, 2009 decision, the Office denied appellant’s claim. In an attached statement of appeal rights, the Office notified appellant that any hearing request must be made in writing within 30-calendar days after the date of the decision, as determined by the postmark of her letter.

In a letter postmarked August 4, 2009, appellant requested an oral hearing before an Office hearing representative.

In a decision dated August 20, 2009, the Office found that appellant’s request was untimely and that she was not entitled to a hearing as a matter of right. It considered her request and denied a discretionary hearing on the grounds that she could equally well address any issues in her case by requesting reconsideration before the Office and submitting evidence not previously considered which established that she sustained an injury in the performance of duty, as alleged.

LEGAL PRECEDENT

Section 8124(b)(1) of the Federal Employees’ Compensation Act provides:

“Before review under section 8128(a) of this title [relating to reconsideration], a claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of this section is entitled, on request made within 30 days after the date of the issuance of the decision, to a hearing on [her] claim before a representative of the Secretary.”2

The hearing 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.3 The Office has discretion, however, to grant or deny a request that is made after this 30-day period.4 In such a case, it will determine whether to grant a discretionary hearing and, if not, will so advise the claimant with reasons.5

ANALYSIS

Appellant had 30-calendar days from the Office’s June 23, 2009 decision, or until July 23, 2009, to request an oral hearing before an Office hearing representative. Because her

2
5 U.S.C. § 8124(b)(1).
3
20 C.F.R. § 10.616(a).
4
Herbert C. Holley, 33 ECAB 140 (1981).
5
Rudolph Bermann, 26 ECAB 354 (1975).

2 request was postmarked August 4, 2009, her request was untimely. Appellant was not entitled to an oral hearing as a matter of right under section 8124(b)(1) of the Act. Exercising its discretion to grant a discretionary hearing, the Office denied appellant’s request on the grounds that she could equally well address any issues in her case by requesting reconsideration. Because reconsideration exists as an alternative appeal right to address the issues raised by the Office’s June 23, 2009 decision, the Board finds that the Office did not abuse its discretion in denying appellant’s untimely request for an oral hearing.6

CONCLUSION

The Board finds that the Office properly denied appellant’s request for an oral hearing before an Office hearing representative.

ORDER

IT IS HEREBY ORDERED THAT the August 20, 2009 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: April 23, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6
The Board has held that the denial of a hearing on these grounds is a proper exercise of the Office’s discretion.
E.g., Jeff Micono, 39 ECAB 617 (1988). Appellant has one year to make a timely request for reconsideration of the Office’s June 23, 2009 merit decision. See 20 C.F.R. § 10.607.

3