L.S. and U.S. Postal Service, Post Office, Tampa, FL (Board decision, May 10, 2018)

ECAB final decision. The Board affirmed OWCP’s September 12, 2017 denial of L.S.’s telephone hearing request without reaching the underlying claim merits. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance. 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).

Plain-English summary

L.S., a postal worker, requested a telephone hearing after previously seeking reconsideration of his claim. The Board held that he no longer had a hearing right after the reconsideration request. OWCP reasonably denied a discretionary hearing because he could submit new evidence through reconsideration. It affirmed the denial.

Decision snapshot

• Authority: 5 U.S.C. § 8124(b).
• Outcome: September 12, 2017 telephone hearing denial affirmed.
• Key point: A prior reconsideration request ended the hearing right, and discretionary denial was reasonable.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.S., Appellant
)
)
and ) Docket No. 18-0115
) Issued: May 10, 2018
U.S. POSTAL SERVICE, POST OFFICE,
)
Tampa, FL, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J, Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On October 20, 2017 appellant, through counsel, filed a timely appeal from a September 12, 2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3(c) the Board has jurisdiction to review this nonmerit decision.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 5 U.S.C. § 8101 et seq.
 ISSUE

The issue is whether OWCP abused its discretion in denying appellant’s request for a telephonic hearing before an OWCP hearing representative pursuant to 5 U.S.C. § 8124.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts of the case as presented in the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.

On June 5, 2014 appellant, then a 42-year-old mail handler, filed an occupational disease claim (Form CA-2) alleging that he sustained bilateral degenerative knee conditions due to prolonged walking and standing while in the performance of duty. He stopped work on May 17, 2014.

OWCP denied the claim by decision dated September 16, 2014. It accepted that the identified work factors occurred as alleged, but denied the claim as the medical evidence of record contained insufficient medical rationale to establish causal relationship between those events and the claimed bilateral knee conditions.

On October 14, 2014 appellant timely requested a telephonic hearing before an OWCP hearing representative. Following the telephonic hearing held on May 4, 2015, the hearing representative affirmed the denial of his claim by decision issued July 6, 2015. The hearing representative found that the medical evidence of record was either insufficiently rationalized or factually inaccurate.

Appellant, through counsel, appealed to the Board on December 2, 2015. By order issued June 20, 2016, the Board dismissed the appeal at counsel’s request.4

On June 21, 2016 appellant, through counsel, requested reconsideration of the merits of his claim. By nonmerit decision dated September 16, 2016, OWCP denied reconsideration, finding that additional medical reports from Dr. Robert Reppy, an attending osteopath Board-certified in family practice, were cumulative and repetitious, and therefore did not warrant a review of the merits of the claim.

Appellant, through counsel, appealed to the Board on November 8, 2016. During the pendency of that appeal, appellant submitted reports dated August 24, 2016 to March 15, 2017 by Dr. Reppy, who diagnosed chondromalacia of the right patella, bilateral medial meniscus tears, and bilateral knee osteoarthritis. Dr. Reppy prescribed physical therapy and noted work restrictions.

3
Docket No. 17-0203 (issued April 5, 2017); Order Dismissing Appeal, Docket No. 16-0285 (issued June 20, 2016).
4
Order Dismissing Appeal, Docket No. 16-0285 (issued June 20, 2016).

2
 By decision dated April 5, 2017, the Board set aside OWCP’s September 16, 2016 decision and remanded the case for a merit review.5

On remand, appellant submitted additional reports from Dr. Reppy dated from April 5 to July 12, 2017, which reiterated previous diagnoses.

By decision dated August 3, 2017, OWCP denied modification of its July 6, 2015 decision as the medical evidence of record contained insufficient medical rationale to establish causal relationship between the accepted employment factors and the claimed bilateral knee conditions.

In a letter dated August 11, 2017 and received by OWCP on August 14, 2017, appellant, through counsel, requested a telephonic hearing before an OWCP hearing representative. He submitted reports dated August 17, 2017 from Dr. Reppy.

By decision dated September 12, 2017, a representative of OWCP’s Branch of Hearings and Review denied appellant’s request for a telephonic hearing as he had previously requested reconsideration. After exercising her discretion, the hearing representative further denied the request, finding that the issue could be equally well addressed through a request for reconsideration before OWCP’s district office.

LEGAL PRECEDENT

Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an OWCP hearing representative, states: Before review under section 8128(a) of this title, 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 claim before a representative of the Secretary.6 A hearing is a review of an adverse decision by an OWCP hearing representative. Initially, the claimant can choose between two formats: an oral hearing or a review of the written record. In addition to the evidence of record, the claimant may submit new evidence to the hearing representative.7

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 carriers’ date marking and before the claimant has requested reconsideration (whether or not reconsideration was granted).8 Although there is no right to a review of the written record or an oral hearing as a matter of right if claimant has previously sought reconsideration, OWCP may within its

5
Docket No. 17-0203 (issued April 5, 2017).
6
5 U.S.C. § 8124(b)(1).
7
20 C.F.R. § 10.615.
8
Id. at § 10.616(a); S.F., Docket No. 17-0463 (issued September 8, 2017); C.M., Docket No. 17-0596 (issued June 5, 2017); Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

3 discretionary powers grant or deny a hearing when the request is untimely or made after reconsideration under section 8128(a).9

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for a telephonic oral hearing.

Because appellant previously requested reconsideration on June 21, 2016, he was not entitled to a hearing as a matter of right under section 8124(b)(1) of FECA.10

The Board further finds that OWCP’s hearing representative did not abuse her discretion in denying appellant’s request for an oral hearing in her September 12, 2017 decision.11 OWCP properly determined that the issue in this case could be addressed equally as well through a request for reconsideration and submission of new evidence relevant to the issue at hand.12 The Board has held that the only limitation on OWCP’s discretionary 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 logic and probable deduction from established facts.13 In this case, the evidence of record does not indicate that OWCP’s hearing representative abused her discretion in denying appellant’s request for a hearing under these circumstances. Accordingly, the Board finds that OWCP properly denied his request for a hearing.

On appeal, counsel contends that OWCP’s September 12, 2017 decision was contrary to fact and law. As set forth above, OWCP properly denied appellant’s request for a hearing.

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for a telephonic hearing under 5 U.S.C. § 8124 as he had previously requested reconsideration.

9
Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter 2.1601.2(a) (October 2011).
10
S.F., supra note 8; J.M., 16-0669 (issued October 24, 2016); Marilyn F. Wilson, 52 ECAB 347 (2001).
11
S.F., supra note 8; J.D., Docket No. 15-1679 (issued December 14, 2015).
12
D.P., Docket No. 14-0308 (issued April 21, 2014); D.J., Docket No. 12-1332 (issued June 21, 2013); Mary B.
Moss, 40 ECAB 640, 647 (1989).
13
See R.G., Docket No. 16-0994 (issued September 9, 2016); Teresa M. Valle, 57 ECAB 542 (2006); Daniel J.
Perea, 42 ECAB 214 (1990).

4
 ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated September 12, 2017 is affirmed.

Issued: May 10, 2018
Washington, DC

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

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

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

5