R.P. and Department of the Air Force, Air Force National Guard, Sioux Falls, SD (Board decision, April 18, 2016)

ECAB final decision. The Board affirmed OWCP’s January 5, 2016 denial of R.P.’s request for an oral hearing. 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 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

R.P., an Air Force National Guard aircraft mechanic, requested a hearing after OWCP denied his claim following a reported chemical exposure. His hearing request was postmarked more than 30 days after OWCP’s merits decision. The Board held that the late filing ended his right to a hearing and that OWCP reasonably declined to grant one as a matter of discretion. It affirmed the hearing denial without reviewing the underlying injury claim.

Decision snapshot

• Authority: 5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).
• Outcome: January 5, 2016 denial of an oral hearing affirmed.
• Key point: The postmark fell outside the 30-day period for a hearing as of right.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.P., Appellant
)
) Docket No. 16-0477
and ) Issued: April 18, 2016
)
DEPARTMENT OF THE AIR FORCE,
)
AIR FORCE NATIONAL GUARD,
)
Sioux Falls, SD, 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
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 13, 2016 appellant filed a timely appeal from a January 5, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from May 7, 2015, the most recent OWCP merit decision, to 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 this case.2

ISSUE

The issue is whether OWCP properly denied appellant’s request for an oral hearing as untimely filed pursuant to 5 U.S.C. § 8124.

1
5 U.S.C. § 8101 et seq.
2
On appeal, appellant submitted new evidence. The Board, however, is precluded from reviewing evidence which was not before OWCP at the time it issued its final decision. 20 C.F.R. § 501.2(c)(1). On appeal, appellant contends that he sustained a work-related injury on March 18, 2015 due to his exposure to a hazardous substance.

FACTUAL HISTORY

On March 19, 2015 appellant, then a 40-year-old aircraft mechanic, filed a traumatic injury claim (Form CA-1) alleging that on March 18, 2015 he inhaled hydrazine at work. A coworker stated that he witnessed the incident.

By letter dated March 26, 2015, OWCP notified appellant of the deficiencies of his claim and requested factual and medical evidence. It also requested that the employing establishment submit medical evidence, if appellant had been treated at its medical facility.

In a March 18, 2015 medical report, Dr. Terry D. Yeager, a Board-certified radiologist, found that appellant’s chest x-ray was normal.

An unsigned nurse interview note dated March 25, 2015 revealed that appellant had been seen for a follow-up visit for his hydrazine exposure. The note provided a history of his medical, social, and family background and indicated that his vitals were taken.

A progress note dated March 25, 2015 of Dr. Darren D.W. Chester, a Board-certified family practitioner, provided appellant’s history of injury and medical, family, and social background. It found that appellant had no symptoms. Appellant’s vitals were noted and his laboratory test results were reviewed. He was diagnosed with exposure to a toxic substance.

In a May 7, 2015 decision, OWCP accepted that the March 18, 2015 incident occurred as alleged. However, it found that the medical evidence failed to establish a medical condition causally related to the accepted employment incident.

In an appeal request form dated May 21, 2015, postmarked on June 12, 2015, and received by OWCP’s Branch of Hearings and Review on June 16, 2015, appellant requested a telephone hearing with an OWCP hearing representative.

By decision dated January 5, 2016, the Branch of Hearings and Review denied appellant’s request for a telephone hearing as it was untimely filed. It found that the request was not postmarked within 30 days of the issuance of the May 7, 2015 OWCP merit decision. After exercising its discretion, the Branch of Hearings and Review further found that the issue in the case could be equally well addressed through the reconsideration process.

LEGAL PRECEDENT

Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with a decision of the Secretary 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.3 Sections 10.617 and 10.618 of the federal regulations implementing this section of

3
5 U.S.C. § 8124(b)(1).

2
FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a representative of the Secretary.4 A claimant is entitled to a hearing or review of the written record as a matter of right only if the request is filed within the requisite 30 days as determined by postmark or other carrier’s date marking and before the claimant has requested reconsideration.5 Although there is no right to a review of the written record or an oral hearing if not requested within the 30-day time period, OWCP may within its discretionary powers grant or deny appellant’s request and must exercise its discretion.6 Its procedures require that it exercise its discretion to grant or deny a hearing when the request is untimely or made after reconsideration under section 8128(a).7

ANALYSIS

The Board finds that OWCP properly determined that appellant’s request for an oral hearing was untimely as it was filed more than 30 days after the issuance of OWCP’s May 7, 2015 merit decision. The May 21, 2015 form, on which appellant requested the hearing, was postmarked on June 12, 2015. Because the postmark date was more than 30 days after the date of OWCP’s May 7, 2015 decision, he was not entitled to a hearing as a matter of right.8 OWCP, therefore, properly denied appellant’s hearing as a matter of right.

Although appellant’s request for a hearing was untimely, OWCP has the discretionary authority to grant the request and it must exercise such discretion. In its January 5, 2016 decision, it properly exercised its discretion by notifying appellant that it had considered the matter in relation to the issue involved and that additional argument and evidence could be submitted with a request for reconsideration. The Board has held that the only limitation on OWCP’s authority is reasonableness. An abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable deductions from established facts.9 In this case, there is no evidence of record that OWCP abused its discretion by denying appellant’s hearing request. Accordingly, the Board finds that OWCP properly denied appellant’s request for an oral hearing.

On appeal, appellant contends that he sustained a work-related injury on March 18, 2015 due to his exposure to a hazardous substance. As explained, however, the Board does not have jurisdiction to review the merits of the May 7, 2015 denial. The only decision properly before the Board on this appeal is the January 5, 2016 nonmerit decision which denied appellant’s request for an oral hearing as untimely filed.

4
20 C.F.R. §§ 10.616, 10.617.
5
Id. at § 10.616(a).
6
Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).
7
See R.T., Docket No. 08-408 (issued December 16, 2008).
8
The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB 90 (1989). 9 Samuel R. Johnson, 51 ECAB 612 (2000).

3
 CONCLUSION

The Board finds that OWCP properly denied appellant’s request for an oral hearing as untimely filed pursuant to 5 U.S.C. § 8124.

ORDER

IT IS HEREBY ORDERED THAT the January 5, 2016 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: April 18, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

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