J.H. and U.S. Postal Service, Post Office, Los Angeles, CA (Board decision, November 6, 2015)

ECAB final decision on a hearing request. The Board affirmed OWCP’s May 21, 2015 denial of J.H.’s late oral hearing request. It did not review the amount of her schedule award. 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 of issuance unless this decision 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

J.H., a postal mail handler, received a schedule award for five percent impairment of her left leg. She requested an oral hearing 32 days after OWCP issued the award decision. The Board held that the request missed the 30 day deadline for a hearing as of right. It found that OWCP also reasonably declined to grant a late hearing in its discretion because J.H. could submit medical evidence through reconsideration. The Board affirmed the hearing denial without reviewing the award’s merits.

Decision snapshot

• Authority: 5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).
• Outcome: May 21, 2015 denial of the late hearing request affirmed.
• Key point: The late request was considered in OWCP’s discretion after the hearing deadline expired.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.H., Appellant
)
)
and ) Docket No. 15-1554
) Issued: November 6, 2015
U.S. POSTAL SERVICE, POST OFFICE,
)
Los Angeles, CA, 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
PATRICIA H. FITZGERALD, Deputy Chief Judge COLLEEN DUFFY KIKO, Judge

JURISDICTION

On July 13, 2015 appellant filed a timely appeal of a May 21, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from the last merit decision, dated November 21, 2014, and the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 the Board lacks jurisdiction to review the merits of the claim.

ISSUE

The issue is whether OWCP’s Branch of Hearings and Review properly denied appellant’s request for an oral hearing as that it was not timely filed.

FACTUAL HISTORY

On January 5, 2005 appellant, then a 44-year-old mail handler, filed a traumatic injury claim (Form CA-1) alleging that she injured her left knee in the performance of duty on

1
5 U.S.C. § 8101 et seq.
December 28, 2004 when she fell in a hole in the ground at the employing establishment, landing on her knees. Her attending physician, Dr. Jin Xiao, Board-certified in occupational medicine, examined her on April 22, 2005 and diagnosed an irregular tear of the posterolateral aspect of the medial meniscus as demonstrated on a magnetic resonance imaging (MRI) scan. He also found degenerative changes in the left knee which were aggravated by appellant’s December 28, 2004 work injury. Appellant returned to limited-duty work on July 22, 2005.

Appellant underwent a second MRI scan on March 1, 2010 which demonstrated a tear of the posterior horn of the medial meniscus of the left knee. On June 26, 2012 Dr. Ronald A. Navarro, a Board-certified orthopedic surgeon, performed a left knee arthroscopy with left partial medial meniscectomy.

OWCP accepted appellant’s claim for contusion of the knee, left knee internal derangement, tear of the medial meniscus, and temporary aggravation of osteoathrosis of the left knee.

Appellant filed CA-7 forms requesting a schedule award on July 30 and September 29, 2014.

On June 19, 2014 OWCP referred appellant for a second opinion evaluation with Dr. Mark Bernhard, an osteopath, Board-certified in physical medicine and rehabilitation, to determine her permanent impairment for schedule award purposes. In a report dated August 14, 2014, Dr. Bernhard determined that appellant had reached maximum medical improvement and that she had five percent impairment of her left lower extremity in accordance with the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2

OWCP referred appellant’s claim to an OWCP medical consultant who concurred with Dr. Bernhard’s impairment rating of five percent of the left lower extremity.

By decision dated November 21, 2014, OWCP granted appellant a schedule award for five percent impairment of the left lower extremity. Appellant submitted a request for an oral hearing on December 23, 2014 which was postmarked that same date.

OWCP’s Branch of Hearings and Review issued a decision on May 21, 2015 denying appellant’s request for an oral hearing because her request was not made within 30 days of the November 21, 2014 merit decision. It further found that the issue in appellant’s claim could be addressed through the submission of evidence in the reconsideration process.

LEGAL PRECEDENT

Section 8124(b) of FECA3 concerning a claimant’s entitlement to a hearing before an OWCP representative, states: “Before review under section 8128(a) of this title, a claimant ... not satisfied with a decision of the Secretary ... is entitled, on request made within 30 days after

2
A.M.A., Guides, 6th ed. (2009).
3
5 U.S.C. §§ 8101-8193.

2 the date of issuance of the decision, to a hearing on [her] claim before a representative of the Secretary.”4 Section 10.615 of OWCP’s regulations implementing this section of FECA provides that a claimant shall be afforded a choice of an oral hearing or a review of the written record.5 OWCP regulations provide that the request must be sent within 30 days of the date of the decision for which a hearing is sought and also that the claimant must not have previously submitted a reconsideration request (whether or not it was granted) on the same decision.6

The Board has held that OWCP, in its broad discretionary authority in the administration of FECA,7 has the power to hold hearings and reviews of the written record in certain circumstances where no legal provision was made for such reviews and that OWCP must exercise this discretionary authority in deciding whether to grant a hearing or review of the written record.8 OWCP procedures, which require OWCP to exercise its discretion to grant or deny a hearing or review of the written record when the request is untimely or made after reconsideration, are a proper interpretation of FECA and Board precedent.9

ANALYSIS

In the instant case, OWCP properly determined appellant’s December 23, 2014 request for an oral hearing was untimely filed as it was made more than 30 days after the issuance of its November 21, 2014 decision. It, therefore, properly denied appellant’s hearing as a matter of right.

OWCP then 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 and could be resolved through the submission of medical evidence in the reconsideration process. Therefore, OWCP properly denied appellant’s request for a hearing as untimely and properly exercised its discretion in determining to deny her request for a hearing as she had other review options available.

CONCLUSION

The Board finds that OWCP’s Branch of Hearings and Review properly denied appellant’s request for an oral hearing on the basis that the request was untimely and could be addressed through the reconsideration process.

4
Id. at § 8124(b)(1).
5
20 C.F.R. § 10.615.
6
Id. at § 10.616(a).
7
5 U.S.C. §§ 8101-8193.
8
Marilyn F. Wilson, 52 ECAB 347 (2001).
9
Daniel J. Perea, 42 ECAB 214, 221 (1990).

3
 ORDER

IT IS HEREBY ORDERED THAT the May 21, 2015 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: November 6, 2015
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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