M.M. and Department of Veterans Affairs, Veterans Administration Medical Center, Los Angeles, CA (Board decision, February 15, 2013)

ECAB final decision on a hearing denial. The Board affirmed OWCP's May 10, 2012 denial of a request for an OWCP hearing. The underlying compensation termination was outside this appeal. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

M.M., a VA employee, sought an OWCP hearing after the Board had already upheld the termination of his compensation. OWCP denied the hearing request. The Board explained that an OWCP hearing office could not review its earlier final decision, and OWCP had issued no later final decision that could be heard. It affirmed the hearing denial without revisiting whether M.M.'s benefits should have ended.

Decision snapshot

• Authority: OWCP hearing rights under 5 U.S.C. § 8124(b)(1); Board decision finality under 5 U.S.C. § 8149.
• Outcome: May 10, 2012 hearing denial affirmed.
• Key point: There was no unreviewed OWCP decision available for an OWCP hearing.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.M., Appellant
)
)
and ) Docket No. 12-1674
) Issued: February 15, 2013
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Los Angeles, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Fidela Mejia, for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

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

JURISDICTION

On May 15, 2012 appellant filed a timely appeal of a May 10, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), denying his request for a hearing. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the May 10, 2012 nonmerit decision. Since more than 180 days has elapsed between the last OWCP merit decision on August 26, 2010 and the filing of this appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to 20 C.F.R.
§ 501.3(e).

ISSUE

The issue is whether OWCP properly denied appellant’s request for a hearing.

1
5 U.S.C. § 8101 et seq.
FACTUAL HISTORY

The case was before the Board on two prior appeals. By decision dated November 25, 2008, the Board found appellant’s fall at work on April 25, 2006 was in the performance of duty, as it was an unexplained fall.2 By decision dated July 13, 2011, the Board affirmed the termination of compensation effective February 22, 2010 based on the medical evidence of record.3 The history of the case as provided in the prior Board decisions is incorporated herein by reference.

On April 25, 2012 OWCP’s Branch of Hearings and Review received an April 13, 2012 letter from appellant’s spouse stating that appellant wished to request an oral hearing. Appellant’s spouse stated that the April 25, 2006 injury was not a temporary aggravation.4

By decision dated May 10, 2012, OWCP’s Branch of Hearings and Review found that appellant was not entitled to a hearing, noting the July 13, 2011 Board decision. OWCP’s Branch of Hearings and Review also indicated that it had exercised its discretion and denied the request for a hearing on the grounds that the issue in the case could equally well be addressed through the reconsideration process.

LEGAL PRECEDENT

Section 8124(b)(1) of FECA provides in pertinent part:

“Before review under section 8128(a) of this title, a claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of this title 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.”5

OWCP regulations provide, with respect to a request for a hearing, “The claimant must not have previously submitted a reconsideration request (whether or not it was granted) on the same decision.”6 With respect to Board decisions, the regulations provide that Board decisions are final as to the subject matter appealed and such decisions are not subject to review except by the Board.7

2
Docket No. 08-1510 (issued November 25, 2008).
3
Docket No. 10-2326 (issued July 13, 2011); petition for recon. denied (issued February 14, 2012).
4
The Board notes that OWCP accepted the claim for syncope and collapse, disorder of shoulder bursae and tendons and spondylolisthesis.
5
5 U.S.C. § 8124(b)(1).
6
20 C.F.R. § 10.616(a); see also 20 C.F.R. § 10.609(c), which provides that an employee receiving a merit decision following an application for reconsideration “may not request a hearing on this decision.” 7 20 C.F.R. § 501.6(d).

2
The Board has clarified that OWCP does not have discretionary authority to grant a request for a hearing immediately following a Board decision. OWCP’s Branch of Hearings and Review may not assume jurisdiction in the claims process absent a final adverse decision by the Director of OWCP, which has not previously been reviewed.8

ANALYSIS

In the present case, appellant requested a hearing before an OWCP hearing representative by letter dated April 13, 2012. The procedural history of the case indicates that OWCP terminated appellant’s compensation for wage-loss and medical benefits effective February 22, 2010. Appellant exercised his appeal rights by requesting reconsideration and OWCP issued an August 26, 2010 merit decision. By decision dated July 13, 2011, the Board affirmed the termination of compensation effective February 22, 2010.

OWCP properly found that the Branch of Hearings and Review did not have jurisdiction to review a decision of the Board. Section 8149 of FECA and its implementing regulations provide that decisions of the Board, on appeals taken from claims of employees, are final as to the subject matter appealed and such decision shall not be subject to review, except by the Board.9 In this case, the Board issued a final decision regarding the termination of appellant’s compensation benefits on July 13, 2011. OWCP did not subsequently issue a final decision. Appellant had no right to request an oral hearing or a review of the written record following the issuance of the Board’s July 13, 2011 decision. Because the record contains no final and unreviewed OWCP decision over which OWCP’s Branch of Hearings and Review could assume jurisdiction, the Board finds that OWCP properly denied appellant’s request for a hearing.10

On appeal, appellant’s representative argues that there were errors in the July 13, 2011 Board decision and she discusses the termination of compensation issue. Appellant filed a petition for reconsideration of the July 13, 2011 decision and the Board issued an order dated February 14, 2012 denying the petition. The only issue before the Board on appeal is the May 10, 2012 denial of a hearing request before an OWCP hearing representative.

CONCLUSION

The Board finds that OWCP properly denied the request for a hearing pursuant to 5 U.S.C. § 8124(b)(1).

8
See Robert N. Thomas, 51 ECAB 180 (1999); Eileen A. Nelson, 46 ECAB 377 (1994).
9
5 U.S.C. § 8149; 20 C.F.R. § 501.6(c).
10
See also J.H., Docket No. 09-1406 (issued January 14, 2010); M.H., Docket No. 12-651 (issued August 8, 2012).

3
ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated May 10, 2012 is affirmed.

Issued: February 15, 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

4