K.K. and U.S. Postal Service, Post Office, Buffalo, NY (Board decision, November 5, 2014)

ECAB final decision. The Board affirmed OWCP’s June 11, 2014 denial of K.K.’s request for review of the written record. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless the decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

K.K., a Postal Service mail handler with an accepted lumbar injury, sought review of OWCP’s denial of requested medical procedures. He mailed his request for a written record review more than a year after OWCP’s April 15, 2013 decision. The Board held that the request was outside the 30-day period for review as a matter of right. It also found no abuse of discretion in OWCP’s decision to deny a late review, because K.K. could seek reconsideration with new evidence. The Board did not decide whether the medical procedures were needed for his accepted injury.

Decision snapshot

• Authority: 5 U.S.C. § 8124 and 20 C.F.R. § 10.616, hearing and written review requests.
• Outcome: OWCP’s June 11, 2014 denial of written record review affirmed.
• Key point: The review request was mailed after the 30-day deadline, and OWCP reasonably declined discretionary review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.K., Appellant
)
)
and ) Docket No. 14-1527
) Issued: November 5, 2014
U.S. POSTAL SERVICE, POST OFFICE,
)
Buffalo, NY, Employer
)
__________ )

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

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On June 25, 2014 appellant filed a timely appeal from the June 11, 2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit decision. The last merit decision of record was the April 15, 2013 decision of OWCP. Because more than 180 days elapsed from issuance of the last merit decision to the filing of this appeal on June 25, 2014, the Board lacks jurisdiction to review the merits of this claim.2

ISSUE

The issue is whether OWCP properly denied appellant’s request for a review of the written record as untimely.

1
5 U.S.C. §§ 8101-8193.
2
See 20 C.F.R. §§ 501.2(c) and 501.3.
 FACTUAL HISTORY

OWCP accepted that on October 24, 2004 appellant, then a 47-year-old mail handler, sustained a lumbar sprain/strain due to moving an all-purpose container filled with mail. Appellant stopped work on October 24, 2004 and returned to his regular work the next day.

Appellant claimed that he sustained disability from October 27, 2004 to April 15, 2005 due to his October 24, 2004 work injury. OWCP denied his claim in decisions dated February 3, 2006, May 15, 2008 and August 4, 2009. The Board affirmed its denial of appellant’s disability claim in decisions dated January 15, 20093 and May 18, 2010.4

In late March 2012, appellant requested authorization from OWCP for several medical procedures, including epidural steroid injection of his cervical, thoracic and lumbosacral spines and destruction by neurolytic agent injection of the facet joints of his lumbosacral spine.

In an April 15, 2013 decision, OWCP denied appellant’s March 2012 request for authorization of the medical procedures. It found that the medical evidence did not establish that the procedures were necessary to treat his October 24, 2004 work injury.

In a letter dated June 1, 2014 and postmarked June 2, 2014, appellant requested a review of the written record by an OWCP hearing representative.5

In a June 11, 2014 decision, OWCP denied appellant’s request for a review of the written record. It found that his request was untimely because OWCP’s last merit decision was issued on April 15, 2013 and his request for a review of the written record was postmarked on June 2, 2014. Since appellant’s request was after 30 days, he was not, as a matter of right, entitled to a review of the written record. OWCP considered his request for a review of the written record, and exercising its discretion, determined that the issue in this case could equally well be addressed by requesting reconsideration from the district office and submitting evidence not previously considered addressing the causal relation between the requested medical procedures and a work-related condition.

LEGAL PRECEDENT

Section 8124 of FECA provides that a claimant is entitled to a hearing before an OWCP representative when a request is made within 30 days after issuance of an OWCP final decision.6 OWCP’s regulations have expanded section 8124 to provide the opportunity for a “review of the written record” before an OWCP hearing representative in lieu of an “oral hearing.”7 It has 3 Docket No. 08-1829 (issued January 15, 2009).
4
Docket No. 09-2206 (issued May 18, 2010).
5
Appellant did not identify a particular OWCP decision, but the April 15, 2013 decision was the last decision issued by OWCP at the time of his request.
6
5 U.S.C. § 8124.
7
20 C.F.R. §§ 10.616, 10.618. The date of the request is determined by the postmark or other carrier’s date marking. Id. at § 10.616(a).

2 provided that such review of the written record is also subject to the same requirement that the request be made within 30 days of OWCP’s final decision.8

The Board has held that OWCP, in its broad discretionary authority in the administration of FECA, has the power to hold hearings in certain circumstances where no legal provision was made for such hearings and that OWCP must exercise this discretionary authority in deciding whether to grant a hearing.9 The principles underlying OWCP’s authority to grant or deny a written review of the record are analogous to the principles underlying its authority to grant or deny a hearing. OWCP’s procedures, which require OWCP to exercise its discretion to grant or deny a request for a review of the written record when such a request is untimely or made after reconsideration or an oral hearing, are a proper interpretation of FECA and Board precedent.10

ANALYSIS

Appellant’s June 2, 2014 request for a review of the written record was made more than 30 days after the date of issuance of OWCP’s prior decision dated April 15, 2013. Thus, he was not entitled to a review of the written record as a matter of right.11 OWCP properly found its June 11, 2014 decision that appellant was not entitled to a review of the written record as a matter of right because his request was not made within 30 days of the April 15, 2013 decision.

OWCP also has the discretionary power to grant a review of the written record when a claimant is not entitled to a review of the written record as a matter of right. In its June 11, 2014 decision, it considered appellant’s request for a review of the written record. OWCP determined that the issue in this case could equally well be addressed by requesting reconsideration from the district office and submitting evidence not previously considered which addressed the causal relation between the requested medical procedures and a work-related condition. The Board has held that as the only limitation on OWCP’s authority is reasonableness, abuse of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic and probable deduction from established facts.12 In the present case, the evidence of record does not establish that OWCP abused its discretion by denying appellant’s request for a review of the written record.13

8
See Michael J. Welsh, 40 ECAB 994 (1989).
9
Henry Moreno, 39 ECAB 475 (1988).
10
See supra note 8.
11
Appellant requested a review of the written record in a document postmarked June 2, 2014 and, therefore, his request was made on June 2, 2014. See supra note 7.
12
Daniel J. Perea, 42 ECAB 214, 221 (1990).
13
On appeal, appellant argued that OWCP did not adequately pay for medical treatment of his back condition.
However, the merits of his claim are not currently before the Board and he did not show that his request for review of the written record was timely filed.

3
 CONCLUSION

The Board finds that OWCP properly denied appellant’s request for a review of the written record as untimely.

ORDER

IT IS HEREBY ORDERED THAT the June 11, 2014 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: November 5, 2014
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4