M.G. and U.S. Postal Service, Post Office, Uniontown, OH (Board decision, September 13, 2016)

ECAB final decision. The Board affirmed OWCP’s December 18, 2015 denial of M.G.’s late request for review of the written record. It did not review her claim on the merits. 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).

Plain-English summary

M.G., a postal employee, requested review of an OWCP decision after the 30-day period for that review had passed. OWCP denied review as a matter of right and declined to grant it in its discretion. The Board found that the request was late and that OWCP could reasonably direct her to the reconsideration process. It affirmed the denial without reaching the underlying claim.

Decision snapshot

• Authority: FECA hearing request provision, 5 U.S.C. § 8124(b).
• Outcome: December 18, 2015 written record review denial affirmed.
• Key point: The request missed the 30-day deadline, and OWCP did not abuse its discretion in declining review.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.G., Appellant
)
)
and ) Docket No. 16-0948
) Issued: September 13, 2016
U.S. POSTAL SERVICE, POST OFFICE,
)
Uniontown, OH, 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 VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 4, 2016 appellant filed a timely appeal from a December 18, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed since the last merit decision dated April 7, 2015, 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 over the merits of this case.2

ISSUE

The issue is whether OWCP properly denied appellant’s request for a review of the written record as untimely under 5 U.S.C. § 8124(b).

1
5 U.S.C. § 8101 et seq.
2
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. Appellant submitted new medical evidence with her appeal. The Board has no jurisdiction to review this new evidence on appeal; see 20 C.F.R. § 501.2(c)(1). See Steven S. Saleh, 55 ECAB 169 (2003). FACTUAL HISTORY

On January 15, 2015 appellant, then a 49-year-old rural carrier, filed a traumatic injury claim (Form CA-1) alleging that on January 15, 2015 she sustained a headache, sore back, and sore neck after being rear ended by a vehicle. Appellant did not stop work.

In a January 15, 2015 report, Dr. Ronald Weisel, a chiropractor, advised that appellant sustained a work injury when she was rear ended while driving a postal vehicle. He assessed cervical, thoracic, and lumbar strain/sprain and noted that appellant’s description of the injury was consistent with the clinical findings.

By letter dated March 4, 2015, OWCP notified appellant that the evidence of record was insufficient to establish her claim. Appellant was advised to submit medical evidence from her attending physician with a diagnosis and an opinion on causal relationship supported by medical rationale. OWCP also noted that chiropractors were only considered physicians under FECA if they diagnosed spinal subluxation as demonstrated by x-ray to exist.

By decision dated April 7, 2015, OWCP found that the January 15, 2015 incident occurred, but denied appellant’s claim for failure to establish the medical component of fact of injury. It noted that the medical evidence of record was from a chiropractor and that he was not considered a physician under FECA as he had not diagnosed spinal subluxation as demonstrated by an x-ray.

On August 10, 2015 appellant submitted a request for review of the written record by a hearing representative of OWCP’s Branch of Hearings and Review, which it received on August 17, 2015. She submitted additional chiropractic reports from Dr. Weisel.

By decision dated December 18, 2015, OWCP denied appellant’s request for review of the written record as untimely. It exercised its discretion and further denied the request for the reason that the relevant issue of the case could be addressed by requesting reconsideration and submitting evidence not previously considered by OWCP.

On appeal appellant argues that she was unaware that she had to see her primary care physician. She contends that she did not know the protocol for filing a claim and that she was not made aware of the protocol.

LEGAL PRECEDENT

Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title [relating to reconsideration], 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.”3

3
5 U.S.C. § 8124(b)(1).

2
 Section 10.615 of Title 20 of the Code of Federal Regulations provides that a hearing is a review of an adverse decision by a hearing representative. Initially, the claimant can choose between two formats: an oral hearing or a review of the written record.4 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.5 OWCP has discretion, however, to grant or deny a request that is made after this 30-day period.6 In such a case, it will determine whether to grant a discretionary hearing or review of the written record and, if not, will so advise the claimant with reasons.7

ANALYSIS

The Board finds that OWCP properly determined that appellant’s August 10, 2015 request for review of the written record received on August 17, 2015 was untimely filed. Appellant’s request was made more than 30 days after the issuance of the April 7, 2015 decision. Section 8124(b)(1) is unequivocal on the time limitation for requesting a hearing.8 For this reason, OWCP properly denied her request as a matter of right.

OWCP proceeded to exercise its discretion in accordance with Board precedent to determine whether to grant review of the written record in this case. It denied appellant’s request as any issues could be equally well addressed in her case by submitting evidence not previously considered by OWCP and requesting reconsideration. Because reconsideration exists as an alternative appeal right to address the issues raised by OWCP’s April 7, 2015 decision, the Board finds that OWCP did not abuse its discretion in denying appellant’s untimely request for review of the written record.9

On appeal appellant argues that she was unaware of the protocol for filing a claim and unaware that she had to submit a medical report from her primary care physician. As explained, the Board does not have jurisdiction over the merits of the claim.

CONCLUSION

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

4
20 CFR § 10.615.
5
Id. at § 10.616.
6
See G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981).
7
Id. See also Rudolph Bermann, 26 ECAB 354 (1975).
8
See William F. Osborne, 46 ECAB 198 (1994).
9
See Gerard F. Workinger, 56 ECAB 259 (2005).

3
 ORDER

IT IS HEREBY ORDERED THAT the December 18, 2015 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: September 13, 2016
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

4