G.G. and U.S. Postal Service, Post Office, Hartford, CT (Board decision, January 25, 2013)

ECAB final decision on a hearing request. The Board affirmed OWCP’s June 9, 2011 denial of G.G.’s hearing request and denied oral argument before the Board. It did not decide the underlying occupational disease claim on the merits. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

G.G. asked OWCP for an oral hearing after she had already requested and received reconsideration of an occupational disease denial. The Board held that the earlier reconsideration ended her hearing entitlement as of right and that OWCP had not abused its discretion in denying a hearing. It also denied her request for Board oral argument because she had shown no need for it.

Decision snapshot

• Authority: Hearing entitlement under 5 U.S.C. § 8124(b)(1) and Board oral argument under 20 C.F.R. § 501.5(a).
• Outcome: June 9, 2011 hearing denial affirmed; Board oral argument denied.
• Key point: Prior OWCP reconsideration barred a hearing as of right.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
G.G., Appellant
)
)
and ) Docket No. 12-346
) Issued: January 25, 2013
U.S. POSTAL SERVICE, POST OFFICE,
)
Hartford, CT, Employer
)
__________ )

Appearances: Case Submitted on the Record
Lynne A. Ustach, Esq., for the appellant
Office of Solicitor, for the Director

ORDER AFFIRMING CASE AND DENYING REQUEST FOR ORAL ARGUMENT

Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On December 6, 2011 appellant, through her attorney, filed a timely appeal from a June 9, 2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for a hearing before the Branch of Hearings and Review. The appeal was docketed as number 12-346.

By decision dated July 22, 2009, OWCP denied appellant’s occupational disease claim for failing to establish fact of injury. On September 24, 2009 appellant requested reconsideration of OWCP’s decision and submitted additional medical evidence in support of her claim.

By decision dated December 17, 2009, OWCP modified its July 22, 2009 decision finding that the evidence of record established fact of injury. It denied appellant’s claim, however, on the grounds that the evidence did not establish that her medical condition was related to factors of her federal employment.

By letter dated April 14, 2011, appellant, through counsel, requested a hearing. By decision dated June 9, 2011, the Branch of Hearings and Review denied her request for an oral hearing on the grounds that she was not entitled to a hearing as a matter of right because she had previously requested reconsideration. It exercised its discretion and further determined that the issue in the case could equally well be addressed by requesting reconsideration from OWCP and submitting evidence not previously considered which establishes that her condition was causally related to factors of her federal employment.

On December 6, 2011 appellant, through counsel, filed a notice of appeal to the Board and submitted a timely request for oral argument, asserting that OWCP improperly denied her claim for compensation.

The Board has duly considered the matter and finds that OWCP properly found in its June 9, 2011 decision that appellant was not entitled to an oral hearing or examination of the written record as a matter of right. Section 8124(b)(1) of the Federal Employees’ Compensation Act (FECA) provides that a claimant for compensation who is 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 and before review under section 8128(a), to a hearing on her claim before a representative of the Secretary.1 As appellant had previously requested reconsideration on September 24, 2009 and OWCP issued its reconsideration decision on December 17, 2009, she was not entitled to a hearing as a matter of right under section 8124(b)(1) of FECA.2

OWCP then exercised its discretion and determined that appellant’s hearing request could equally well be addressed by requesting reconsideration and submitting additional evidence to address the issue in this case. The Board finds that there is no evidence of record that OWCP abused its discretion in denying appellant’s hearing request.3 Thus, the Board finds that OWCP’s June 9, 2011 decision denying appellant’s request for an oral hearing was proper under the law and facts of this case.4

The Board further finds that appellant’s request for oral argument before the Board should be denied. Pursuant to 20 C.F.R. § 501.5(a), oral argument may be held in the discretion of the Board.5 Although her request was timely filed, appellant failed to provide a need for further oral argument before the Board. OWCP’s June 9, 2011 nonmerit decision determined that appellant was not entitled to a hearing as a matter of right because she had previously requested reconsideration. In the opinion of the Board, oral argument in this appeal would further delay issuance of a Board decision and not serve a useful purpose. For these reasons, oral argument is denied.

1
5 U.S.C. § 8124(b)(1); Peggy R. Lee, 46 ECAB 527 (1995).
2
Id.
3
Daniel J. Perea, 42 ECAB 214, 221 (1990).
4
Appellant must file her reconsideration request within one year of OWCP’s December 17, 2009 merit decision.
OWCP regulations and procedure provide that OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on the part of OWCP. Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d (January 2004). 5 20 C.F.R. § 501.5(a).

2
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ decision dated June 9, 2011 is affirmed and appellant’s request for oral argument before the Board is denied.

Issued: January 25, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3