B.W. and U.S. Postal Service, Wexford Post Office, Wexford, PA (Board decision, June 26, 2014)

ECAB final decision and order. The Board affirmed OWCP’s January 16, 2014 refusal to hold an oral hearing about B.W.’s schedule award denial. The hearing request was mailed well beyond the 30-day deadline, and OWCP reasonably found that medical evidence could be submitted through reconsideration. The Board did not review the merits of the schedule award claim. Under 20 C.F.R. § 501.6(d), this Board order becomes final 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this order 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

B.W., a rural postal carrier, sought a schedule award after an accepted low back injury. OWCP denied the award in January 2013 for lack of medical evidence of permanent impairment and maximum medical improvement. B.W. later sent a hearing request that he had dated February 2013, but its envelope was postmarked in December 2013. The Board held that the postmark made the request untimely and that OWCP reasonably declined a discretionary hearing because reconsideration could address the medical issue. It affirmed the hearing refusal without deciding whether B.W. qualified for a schedule award.

Decision snapshot

• Authority: FECA hearing rights, 5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).
• Outcome: Refusal of untimely oral hearing request affirmed; schedule award merits not reviewed.
• Key point: The date written on the request did not overcome its December 2013 postmark.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.W., Appellant
)
)
and ) Docket No. 14-679
) Issued: June 26, 2014
U.S. POSTAL SERVICE, WEXFORD POST
)
OFFICE, Wexford, PA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On February 6, 2014 appellant filed a timely appeal from a January 16, 2014 decision of the Office of Workers’ Compensation Programs (OWCP). Because over 180 days elapsed from the most recent merit decision of January 17, 2013 to the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s case, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.

ISSUE

The issue is whether OWCP’s Branch of Hearings and Review properly denied appellant’s request for an oral hearing.

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

On February 14, 2001 appellant, then a 49-year-old rural carrier, injured his low back in a motor vehicle accident while in the performance of duty. OWCP accepted his claim for lumbosacral neuritis on April 9, 2001. It also accepted a sprain of the lumbar spine.

On November 16, 2012 appellant requested a schedule award. By decision dated January 17, 2013, OWCP denied his claim for a schedule award. It found that the medical evidence failed to establish permanent impairment or support that he had reached maximum medical improvement due to the effects of his accepted work-related injury.

In a letter dated December 14, 2013, appellant stated that he had requested an oral hearing on February 4, 2013. He submitted an appeal form, requesting an oral hearing dated February 4, 2013 and stamped as received by the Branch of Hearings and Review on December 20, 2013. The postmark on the accompanying envelope was December 17, 2013.

In a January 16, 2014 decision, the Branch of Hearings and Review found that appellant’s request for an oral hearing was not made within 30 days of the January 17, 2013 decision. Appellant was not, as a matter of right, entitled to an oral hearing. The Branch of Hearings and Review further considered his request for an oral hearing and determined that the issue in the case could equally well be addressed through the reconsideration process.

LEGAL PRECEDENT

Section 8124(b)(1) of FECA provides:

“Before review under section 8128(a) of this title [relating to reconsiderations], 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 [his or her] claim before a representative of the Secretary.”2

Initially, the claimant can choose between an oral hearing or a review of the written record.3 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.4 OWCP has discretion, however, to grant or deny a request that is made after this 30-day period.5 In such a case, it will determine whether a discretionary hearing should be granted or, if not, will so advise the claimant with reasons.6

2
Id. at § 8124(b)(1).
3
20 C.F.R. § 10.615.
4
Id. at § 10.616(a).
5
L.D., Docket No.14-319 (issued April 24, 2014); Herbert C. Holley, 33 ECAB 140 (1981).
6
L.D., id.; Rudolph Bermann, 26 ECAB 354 (1975).

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 ANALYSIS

The Board finds that OWCP properly determined that appellant’s December 14, 2013 request for a hearing was not timely filed. Appellant’s request was made more than 30 days after the issuance of the January 17, 2013 decision and not postmarked until December 12, 2013. OWCP, therefore, properly denied his hearing as a matter of right.

OWCP proceeded to exercise its discretion in accordance with Board precedent to determine whether to grant a hearing in this case. It determined that a hearing was not necessary as the issue in the case was medical in nature and could be resolved through the submission of medical evidence in the reconsideration process. The Board finds that OWCP properly denied appellant’s request for a hearing as untimely and properly exercised its discretion in determining to deny his request for a hearing as he had other review options available.

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for an oral hearing as untimely.

ORDER

IT IS HEREBY ORDERED THAT the January 16, 2014 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: June 26, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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