R.S. and U.S. Postal Service, Post Office, Oak Lawn, TX (Board decision, August 13, 2012)

ECAB remand decision. The Board set aside OWCP's hearing denial and remanded for an actual exercise of discretion. Whether R.S. will receive a hearing remains unresolved. 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

R.S., a postal employee, requested an oral hearing after the deadline for a hearing as a matter of right. In an earlier appeal, the Board had told OWCP to consider whether to grant a hearing in its discretion. OWCP again denied the request, reasoning that a change to its procedures removed any duty to offer a discretionary hearing. The Board held that OWCP's discretionary authority comes from the compensation law and its precedent, rather than the removed procedure. It sent the case back for OWCP to decide whether to grant a hearing and to give reasons if it declines.

Decision snapshot

• Authority: Hearing regulation, 20 C.F.R. § 10.616(a), and the Board precedent discussed in the order.
• Outcome: November 3, 2011 hearing denial set aside; case remanded.
• Key point: An untimely request does not guarantee a hearing, but OWCP still must exercise its discretion.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.S., Appellant
)
)
and ) Docket No. 12-710
) Issued: August 13, 2012
U.S. POSTAL SERVICE, POST OFFICE,
)
Oak Lawn, TX, Employer
)
__________ )

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

ORDER REMANDING CASE

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

On February 13, 2012 appellant filed a timely request for review from a November 3, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) denying appellant’s request for an oral hearing as untimely.

The Board, having duly reviewed the matter, notes that it issued a Decision and Order on October 14, 2011 finding that appellant’s request for a hearing before an OWCP hearing representative was untimely, and that he was, therefore, not entitled to a hearing as a matter of right. The Board found, however, that OWCP had discretion, nonetheless, to grant appellant’s request. Because OWCP did not exercise its discretion, the Board set aside the December 28, 2010 decision denying appellant’s request and remanded the case for a proper exercise of discretion and an appropriate final decision.1

In a November 3, 2011 decision, OWCP found that because appellant’s hearing request was not made within 30 days, he was not as a matter of right entitled to an oral hearing or a

1
Docket No. 11-879 (issued October 14, 2011). The Board’s decision may also be found under OWCP File No. xxxxxx517 (master file). review of the written record. Citing its procedure manual2 and its regulations,3 OWCP found that the requirement for OWCP to offer a discretionary hearing is no longer mandated and therefore the legal precedent cited by previous Board decisions is no longer valid. “Therefore a discretionary hearing is denied for above-stated reasons.”

The Board finds that OWCP has again failed to exercise its discretion. The Board has held that OWCP, in its broad discretionary authority to administer the Federal Employees’ Compensation Act (FECA), has the power to hold hearings in circumstances where no legal provision is made for such hearings and has further held that OWCP must exercise its discretionary authority.4 This power to hold hearings did not derive from an OWCP procedure or regulation. Indeed, OWCP had this authority prior to the 1966 amendments that provided a right to a hearing. The Board held that there was nothing in the legislative history of the 1966 amendments to indicate that Congress was revoking OWCP’s discretionary authority to hold a hearing even if the request was not timely made.5

When OWCP procedures later required the exercise of discretion if a hearing request was untimely or made after reconsideration, the Board found that the procedure was a proper interpretation of both FECA and Board precedent.6 That the procedure no longer addresses the matter in no way diminishes OWCP’s power to hold discretionary hearings.

On remand, OWCP shall exercise its discretion whether to grant appellant’s untimely request, and if not, shall so advise appellant with reasons.

2
Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4.a (October 2011).
3
20 C.F.R. § 10.616(a).
4
Mary B. Moss, 40 ECAB 640 (1989) (untimely request for hearing); Shirley A. Jackson, 39 ECAB 540 (1988) (hearing request made after request for reconsideration); Johnny S. Henderson, 34 ECAB 216 (1982) (request for a second hearing); Rudolph Bermann, 26 ECAB 354 (1975) (injury occurring prior to effective date of the statutory amendments providing right to hearing). 5 Herbert C. Holley, 33 ECAB 140 (1981).
6
Jeff Micono, 39 ECAB 617 (1988).

2
 IT IS HEREBY ORDERED THAT the November 3, 2011 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action consistent with this order of the Board.

Issued: August 13, 2012
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