G.V. and U.S. Postal Service, Riverside Post Office (Board decision, March 14, 2024)

ECAB final decision. The Board affirmed OWCP’s decision. A party may petition the Board for reconsideration within 30 days of issuance unless this order 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

A postal worker claimed several medical conditions from her assigned work. The Board found that a second opinion physician gave a reasoned explanation against a causal link and that the other reports did not establish one. It affirmed OWCP’s denial of the occupational disease claim. The Board also affirmed denial of her written-record review request because it was filed after the 30-day deadline and OWCP reasonably exercised its discretion.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: Occupational disease denial and untimely record-review denial affirmed.
• Key point: The medical evidence did not establish causation, and the record-review request was late.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
G.V., Appellant
)
)
and ) Docket No. 22-1257
) Issued: March 14, 2024
U.S. POSTAL SERVICE, RIVERSIDE POST
)
OFFICE, Riverside, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge

JURISDICTION

On August 24, 2022 appellant, through counsel, filed a timely appeal from a March 9, 2022 merit decision and a May 5, 2022 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, the Board lacks jurisdiction over the merits of this case.

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.
 ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish a medical condition causally related to the accepted factors of her federal employment; and (2) whether OWCP properly denied appellant’s request for review of the written record as untimely filed, pursuant to 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On April 27, 2020 appellant, then a 62-year-old work unit supervisor, filed an occupational disease claim (Form CA-2) alleging that she developed arthritis from a left foot fusion and “uncontrolled symptoms spondylosis,” radiculitis, and left foot arthritis due to factors of her federal employment including hours of standing and walking.3 She noted that she first became aware of her condition on January 30, 2018 and realized its relation to her federal employment on January 30, 2020. Appellant stopped work on October 8, 2018.4

In a narrative statement, appellant indicated that she was assigned work duties, which included increased walking, standing, and reaching. She also described that on January 30, 2018 she conducted inspections at two offices and noticed pain and pressure in both feet. Appellant reported that she did not initially file this claim because she believed that her symptoms were ongoing from her previous May 7, 2005 employment injury.

OWCP received hospital records and operative reports dated July 6 and 7, 2005, which noted that appellant underwent left foot triple arthrodesis surgery on July 6, 2005.

In a duty status report (Form CA-17) dated January 4, 2016, Dr. Robert G. Watkins, Jr., a Board-certified orthopedic surgeon, noted a diagnosis of lumbar spondylosis and stenosis. He indicated that appellant could work full time with restrictions.

A lumbar spine x-ray scan dated January 4, 2016 revealed no significant change from an October 28, 2015 study.

Appellant submitted two diagnostic reports dated September 22, 2016. A lumbar myelogram report revealed postsurgical changes in the lower lumbar spine and otherwise, normal findings. A lumbar spine computerized tomography (CT) scan demonstrated postsurgical changes with pedicular screws from L3 to S1 and interbody fusions at L3-4 and L5-S1, narrowing of the right neural foramen at L5-S1, laminectomies from L3-4 to L5-S1, grade 1 to 2 anterolisthesis of L5-S1, and multilevel facet degenerative changes.

3
OWCP assigned the current claim OWCP File No. xxxxxx134. Appellant has a previously accepted May 7, 2005 traumatic injury claim (Form CA-1) under OWCP File No. xxxxxx712, which was accepted for left ankle sprain, lumbar sprain, left ankle joint pain, left lower extremity nonallopathic lesion, lumbago, congenital spondylolisthesis, sprain of wrist carpal (accepted as resolved), lumbosacral joint sprain, degeneration of lumbar or lumbosacral intervertebral disc, and lumbar radiculopathy. OWCP has administratively combined OWCP File Nos. xxxxxx134 and xxxxxx712, with the latter serving as the master file. 4 OWCP paid wage-loss compensation on the supplemental rolls, effective October 8, 2018, under OWCP File No. xxxxxx712.

2
 In a Form CA-17 dated September 28, 2016, Dr. Watkins noted a diagnosis of lumbar spondylosis and stenosis and indicated that appellant could work with restrictions.

In a report dated July 17, 2017, Dr. Watkins recounted appellant’s complaints of moderate pain in her back, legs, and left wrist after standing and walking. On examination of her lumbar spine, he noted limited range of motion findings and normal toe and heel walk. Dr. Watkins diagnosed lumbar degenerative disc disease. He completed a Form CA-17, which noted a diagnosis of history of post-fusion syndrome and indicated that appellant could work full time with restrictions.

A July 17, 2017 lumbar spine x-ray scan revealed status post interbody and posterior fusion from L3 through S1.

In an after-visit summary dated January 23, 2018, Dr. John M. Stutz, a podiatrist, noted diagnoses of left foot pain and back pain.

In a report dated March 16, 2018, Dr. Joyce Wong Taur, a Board-certified internist, noted diagnoses of congenital lumbosacral spondylolysis, sciatica left side, and lumbosacral radiculitis. She advised that appellant not work.

In an undated statement, appellant indicated that her original date of injury was May 7, 2005 and noted the medical treatment that she received. She explained that she returned to work in the safety program division for 6 to 8 hours per day. Appellant reported that her job required her to travel between stations to conduct safety observations and facility inspections, which was physically demanding. She described the physical requirements of her job as standing and walking at the job site, maintaining records in 3- to 5-inch notebooks, and using heavy cabinet drawers, which were heavy to push and pull. Appellant asserted that she often had to miss work due to flare-ups of pain.

On April 25, 2020 appellant requested expansion of her claim under OWCP File No. xxxxxx712 to include painful left foot secondary to chronic posterior tibial tendon dysfunction resulting in surgery-triple arthrodesis of left foot. She alleged that over the years she had developed more left foot pain exacerbated by her work activities. Appellant described her work activities as carrying mail satchels weighing up to 35 pounds for 8 to 10 hours per day and walking through yards to deliver mail. She also reported specific incidents that where she slipped and fell at work. Appellant provided a witness statement and an aerial photograph of the post office station.

In a development letter dated May 1, 2020, OWCP informed appellant of the deficiencies of her claim. It advised her of the type of factual and medical evidence needed and afforded her 30 days to respond.5

In a report dated April 30, 2020, Dr. Brian S. Doyle, a Board-certified orthopedic surgeon, indicated that appellant was evaluated for follow up of right thumb and left thumb pain. On physical examination, he observed tenderness at the carpometacarpal (CMC) joint and

5
Appellant retired from federal employment, effective March 31, 2020.

3 moderate loss of joint space of the right thumb. Dr. Doyle diagnosed right thumb CMC osteoarthritis.

In a report dated August 12, 2020, Dr. John Ellis, a Board-certified family practitioner, described appellant’s employment duties and recounted her current complaints of pain in her thumbs. He reviewed her history, including her previously accepted conditions. On examination of appellant’s thumbs, Dr. Ellis observed hypertrophy and tenderness of the CMC joint and decreased range of motion. He diagnosed bilateral thumb CMC joint osteoarthritis. Dr. Ellis opined those years of sorting and computer use caused an overuse of the CMC joints of both thumbs causing arthritis in both thumbs.

By decision dated September 8, 2020, OWCP denied appellant’s occupational disease claim under OWCP File No. xxxxxx134, finding that the medical evidence of record was insufficient to establish that her left foot and lumbar conditions were causally related to the accepted factors of her federal employment. Therefore, it concluded that the requirements had not been met to establish an injury as defined by FECA.

On October 7, 2020 appellant requested a hearing before a representative of OWCP’s Branch of Hearings and Review. A hearing was held on January 14, 2021.

Appellant submitted reports dated April 11, 2018 through June 10, 2020 by Dr. Watkins, who noted her complaints of worsening and severe lower back, neck, and leg pain. Dr. Watkins reviewed her history, provided examination findings, and diagnosed post fusion syndrome, lumbar annular tear at L2-3, disc degenerative disease, and radiculitis. In a January 17, 2020 report, he explained that appellant began to experience increasing pain throughout the beginning of 2018 and was taken off work. Dr. Watkins reported that diagnostic imaging and physical examination revealed that she suffered a lumbar annular tear at L2-3. He opined that appellant’s current condition was related to her May 7, 2005 employment injury and subsequent lumbar fusion surgeries. Dr. Watkins explained that the three-level fusion in her back increased the stress and incidences of pain and annular tears at the adjacent levels. He concluded that the annular tear at L2-3 should be considered a consequential back injury.

In a letter dated February 11, 2021, Dr. Watkins indicated that appellant’s back pain was due to an annular tear at L2-3 with post fusion syndrome from L3-S1. He reported that her annular tear was aggravated by her repetitive work duties, which included flexion, extension, lifting, bending, and twisting. Dr. Watkins noted that these duties were known to biomechanically stress the disc, which causes annular tears.

By decision dated February 25 2021, OWCP’s hearing representative set aside the September 8, 2020 decision and remanded the case for further development.

By letter dated March 1, 2021, OWCP requested that the employing establishment provide a clear description of all the job duties that appellant performed for the period January 2016 through January 2018, and the time spent performing them.

OWCP referred appellant, along with a statement of accepted facts (SOAF) and a series of questions, to Dr. Michael J. Einbund, a Board-certified orthopedic surgeon, for a second

4 opinion evaluation regarding whether her diagnosed medical conditions were causally related to the accepted factors of federal employment.

Appellant also submitted form reports, a list of dates indicating when she sought medical treatment, a timesheet printout of absences in 2017, dates and hours of claimed wage-loss compensation from June through October 2018, an employing establishment assignment order dated March 6, 2018, a notification for absence form dated March 16, 2018, various earnings and leave statement from February through August 2018, statements regarding her work duties and time off from work due to her medical conditions, and medical reports dated February 15 through June 6, 2017.

In a report dated September 30, 2021, Dr. Adam Y. Beckler, a podiatrist, indicated that appellant was evaluated for complaints of bilateral diffuse chronic foot pain. He noted that she had a history of bilateral foot surgery. On physical examination, Dr. Beckler observed tenderness to palpation in the left naviculocuneiform joint with range of motion, tenderness to palpation of the dorsal bilateral 2nd and 3rd tarsometatarsal joints, and tenderness to palpation of the left peroneal tendon course. He diagnosed history of foot surgery, bilateral posterior tibial tendon dysfunction, arthritis of the bilateral feet and ankles, and tendinitis of left peroneal tendon.

In an October 1, 2021 statement, F.L., appellant’s manager, indicated that appellant worked as a mail carrier for 13 years and as a supervisor customer service (SCS) for over 20 years. He noted that he was providing a description of her SCS position from November 2015 through March 2018. F.L. noted that appellant was disabled from work from March 14, 2018 through January 15, 2019. He reported that she returned to work at her previous position in a limited-duty capacity. F.L. provided a position description for a supervisor customer services.

In a report dated October 14, 2021, Dr. Einbund, the second-opinion examiner, noted his review of the SOAFs for OWCP File Nos. xxxxxx134 and xxxxxx712 and recounted appellant’s current complaints of mid to low back pain, left ankle and foot pain, and left wrist instability. He discussed her medical treatment following the May 7, 2005 employment injury. On physical examination, Dr. Einbund observed tenderness in appellant’s lumbar spine. Straight leg raise testing was positive at 70 degrees, bilaterally. Examination of appellant’s left ankle and foot revealed tenderness laterally and over the dorsum of the foot. Dr. Einbund reported normal sensory examination of the upper extremities and no evidence of motor weakness. He diagnosed lumbar spondylolisthesis and intervertebral disc degeneration at multiple levels, radiculitis, left foot posterior tibial tendon dysfunction, triangular fibrocartilage of the left wrist, resolved left ankle sprain, and resolved left wrist sprain.
Dr. Einbund opined that the lumbar spondylolisthesis and disc degeneration, lumbar radiculitis, and resolved left ankle and wrist sprains were causally related to the May 7, 2005 employment injury. He further opined that appellant did not sustain a lumbar annular tear due to the May 7, 2005 employment injury. Dr. Einbund noted that she could work modified duty and completed a work capacity evaluation (Form OWCP-5c).

In a January 10, 2022 supplemental report, Dr. Einbund indicated that he had been asked to clarify whether appellant’s current diagnosed conditions were causally related to her claim under OWCP File No. xxxxxx134, with date of injury of January 30, 2018. He reported that the

5 employing establishment had verified that, from January 2016 through January 2018, she was on her feet standing/walking for less than 1 hour as she sat at a retail window. Dr. Einbund indicated that the medical records during the claimed time period that appellant asserted that she claimed a new injury did not substantiate a progression of lumbar symptoms. He indicated that the medical records, which reemerge in April 2018, reveal overall positive physical examination findings, aside from some limited range of motion. Dr. Einbund opined that appellant had no lumbar spine or bilateral feet injuries causally related to her January 2018 occupational disease claim.

On February 8, 2022 OWCP referred the case back to Dr. Einbund, along with an updated SOAF, series of more questions, and additional medical records dated from 2017.

In a February 21, 2022 addendum report, Dr. Einbund indicated that he had reviewed the detailed description of appellant’s employment duties from January 2016 through January 2018. He opined that his review of her employment duties did not change his opinion that her lumbar spine conditions were related to her prior May 7, 2005 employment injury. Dr. Einbund explained that the medical evidence of record did not substantiate any worsening of appellant’s accepted conditions under OWCP File No. xxxxxx712. He also reported that her diagnosed bilateral foot conditions were not related to the January 2018 occupational disease claim. Dr. Einbund noted that, in early 2016, appellant was involved in weight-bearing activities for five to six hours, but by 2017, the weight-bearing activities had decreased to three to six hours per day. He also indicated that the arthritic changes in both feet were not considered exceptional, given her age, body habitus, and long history of tibial tendon dysfunction with resulting fusion in both feet. Dr. Einbund concluded that appellant had no new work-related conditions caused or aggravated by her work activities after January 2016.

By decision dated March 9, 2022, OWCP denied appellant’s occupational disease claim under OWCP File No. xxxxxx134, finding that she had not established that her diagnosed conditions were causally related to the accepted factors of her federal employment. It found that the weight of the medical evidence rested with the October 14, 2021 and February 21, 2022 reports of Dr. Einbund, OWCP second-opinion examiner.

In a statement dated April 14, 2022, appellant, through counsel, requested a review of the written record by a representative of OWCP’s Branch of Hearings and Review. Counsel asserted that OWCP improperly relied on Dr. Einbund’s second opinion reports because his opinion was not based on an accurate SOAF. She also argued that the medical evidence of record was sufficient to establish that appellant’s diagnosed conditions were causally related to her accepted employment factors.

By decision dated May 5, 2022, OWCP denied appellant’s request for a review of the written record, finding that the request was untimely filed.

6
 LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA6 has the burden of proof to establish the essential elements of his or her claim, including that the individual is an employee of the United States within the meaning of FECA, that the claim was timely filed within the applicable time limitation of FECA,7 that an injury was sustained in the performance of duty as alleged, and that any disability or medical condition for which compensation is claimed is causally related to the employment injury.8 These are the essential elements of each and every compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.9

To establish that an injury was sustained in the performance of duty in an occupational disease claim, a claimant must submit: (1) a factual statement identifying employment factors alleged to have caused or contributed to the presence or occurrence of the disease or condition; (2) medical evidence establishing the presence or existence of the disease or condition for which compensation is claimed; and (3) rationalized medical evidence establishing that the diagnosed condition is causally related to the employment factors identified by the claimant.10

Causal relationship is a medical issue, and the medical evidence required to establish causal relationship is rationalized medical opinion evidence.11 The opinion of the physician must be based on a complete factual and medical background of the employee, must be one of reasonable medical certainty, and must be supported by medical rationale explaining the nature of the relationship between the diagnosed condition and specific employment factors identified by the employee.12

In any case where a preexisting condition involving the same part of the body is present and the issue of causal relationship, therefore, involves aggravation, acceleration, or

6
Supra note 2.
7
D.D., Docket No. 19-1715 (issued December 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018);
J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989). 8 Y.G., Docket No. 20-0688 (issued November 13, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988). 9 C.H., Docket No. 19-1781 (issued November 13, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990). 10 T.M., Docket No. 20-0712 (issued November 10, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019);
R.H., 59 ECAB 382 (2008).
11
A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996). 12 M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7 precipitation, the physician must provide a rationalized medical opinion that differentiates between the effects of the work-related injury or disease and the preexisting condition.13

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish a medical condition causally related to the accepted factors of her federal employment.

OWCP referred appellant to Dr. Einbund for a second opinion evaluation regarding her occupational disease claim. In an October 14, 2021 report, Dr. Einbund reviewed her history of injury, including the SOAFs for both her claims. He provided examination findings and diagnosed lumbar spondylolisthesis and intervertebral disc degeneration at multiple levels, radiculitis, left foot posterior tibial tendon dysfunction, triangular fibrocartilage of the left wrist, resolved left ankle sprain, and resolved left wrist sprain. Dr. Einbund determined that appellant did not suffer lumbar annular tears at L2-3. In a February 21, 2022 supplemental report, he discussed her work duties from January 2016 through 2018. Dr. Einbund opined that appellant’s diagnosed conditions were not causally related to her employment factors.

The Board has reviewed the opinion of Dr. Einbund and notes that he provided a thorough factual and medical history and accurately summarized the relevant medical evidence.14 Dr. Einbund further provided medical rationale for his opinion on causal relationship.

Appellant submitted reports from Dr. Watkins dated January 4, 2016 through February 11, 2021. Dr. Watkins indicated that she was evaluated for complaints of severe lower back and leg pain. He provided examination findings and diagnosed post-fusion syndrome, lumbar annular tear at L2-3, disc degenerative disease, and radiculitis. In a February 11, 2021 letter, Dr. Watkins opined that appellant’s back symptoms resulted from an annular tear at L2-3 and were aggravated by her repetitive work duties, specifically flexion, extension, lifting, bending, and twisting. He explained that these repetitive duties were known to biomechanically stress the disc, which causes annular tears. While Dr. Watkins provided an opinion supporting causal relationship, he did not provide a medically-sound explanation of how the specific work factors physiologically caused the injury.15 He did not explain how appellant’s work duties stressed her lumbar discs to cause the annular tears. Furthermore, Dr. Watkins did not specifically differentiate between her preexisting lumbar conditions and the effects of her accepted employment factors. As noted above, in any case where a preexisting condition involving the same part of the body is present, and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation, the physician must provide a rationalized medical opinion that differentiates between the effects of the work-related injury or disease and the preexisting condition.16 Dr. Watkins’ opinion, therefore, is insufficient to establish the claim.

13
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); see G.M., Docket No. 22-0730 (issued October 26, 2022).
14
V.B., Docket No. 22-0799 (issued October 25, 2022); J.W., Docket No. 18-0670 (issued September 11, 2018).
15
A.D., Docket No. 21-0415 (issued June 8, 2023); L.R., Docket No. 16-0736 (issued September 2, 2016).
16
Supra note 15.

8
 In an August 12, 2020 report, Dr. Ellis noted appellant’s complaints of pain in her thumbs. He provided examination findings and diagnosed bilateral thumb CMC joint osteoarthritis. Dr. Ellis opined those years of sorting and computer caused an overuse of the CMC joints of both thumbs, which led to arthritis in both thumbs. He failed, however, to provide an explanation supporting his conclusion. A medical report is of limited probative value on the issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical rationale.17 This report, therefore, is insufficient to establish the claim.

On March 16, 2018 Dr. Taur treated appellant and noted diagnoses of congenital lumbosacral spondylolysis, sciatica left side, and lumbosacral radiculitis. She did not, however, provide an opinion on causal relationship. The Board has held that medical evidence that does not provide an opinion regarding causal relationship is of no probative value and, thus, is insufficient to establish a claim.18 Likewise, Dr. Doyle’s April 30, 2020 report, and Dr. Beckler’s September 30, 2021 report, are insufficient to establish appellant’s claim as none of the physicians provided an opinion on the cause of her diagnosed conditions.19

OWCP also received diagnostic test reports, including the January 4, 2016 lumbar spine x-ray scan, September 22, 2016 lumbar myelogram and lumbar spine CT scans, and July 17, 2017 lumbar spine x-ray scan. The Board has held that diagnostic tests, standing alone, lack probative value on the issue of causal relationship as they do not address the relationship between the accepted employment factors, and a diagnosed condition.20 These reports are, therefore, insufficient to meet appellant’s burden of proof.

As the medical evidence of record is insufficient to establish a medical condition due to the accepted factors of her federal employment, the Board finds that appellant has not met her burden of proof.

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

LEGAL PRECEDENT -- ISSUE 2

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.”21 Sections 10.617 and 10.618 of the federal regulations implementing this section of 17 J.W., Docket No. 18-0678 (issued March 3, 2020); see V.T., Docket No. 18-0881 (issued November 19, 2018);
S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-?975 (February 6, 2009). 18 L.B., Docket No. 22-0339 (issued June 21, 2023); D.K., Docket No. 17-1549 (issued July 6, 2018).
19
D.C., Docket No. 19-1093 (issued June 25, 2020); L.D., Docket No. 18-1468 (issued February 11, 2019).
20
See W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).
21
5 U.S.C. § 8124(b)(1).

9
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.22 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.23 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.24

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for a review of the written record before an OWCP hearing representative as untimely filed, pursuant to 5 U.S.C.
§ 8124.

OWCP’s regulations provide that the request for a hearing or review of the written record must be made within 30 days of the date of the decision for which a review is sought. Because appellant requested a review of the written record on April 14, 2022 more than 30 days after OWCP’s March 9, 2022 decision, the Board finds that it was untimely. She was, therefore, not entitled to a review of the written record as a matter of right.25

OWCP has the discretionary authority to grant the request and it must exercise such discretion.26 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, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic and probable deductions from established facts.27 The Board finds that the evidence of record indicates that OWCP did not abuse its discretion in connection with its denial of appellant’s request for a review of the written record.

Accordingly, the Board finds that OWCP properly denied appellant’s request for a review of the written record by an OWCP hearing representative as untimely filed, pursuant to 5 U.S.C.
§ 8124(b).

22
20 C.F.R. §§ 10.616, 10.617.
23
Id. at § 10.616(a).
24
W.H., Docket No. 20-0562 (issued August 6, 2020); P.C., Docket No. 19-1003 (issued December 4, 2019);
Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999). 25 See H.M., Docket No. 22-0053 (issued August 12, 2022); see also P.C., id.
26
See M.F., Docket No. 21-0878 (issued January 6, 2022).
27
See K.B., Docket No. 21-1038 (issued February 28, 2022); B.W., Docket No. 16-1860 (issued May 4, 2017);
Samuel R. Johnson, 51 ECAB 612 (2000).

10
 CONCLUSION

The Board finds that appellant has not met her burden of proof to establish a medical condition causally related to the accepted factors of her federal employment. The Board also finds that OWCP properly denied her request for a review of the written record as untimely filed, pursuant to 5 U.S.C. § 8124.

ORDER

IT IS HEREBY ORDERED THAT the May 5 and March 9, 2022 decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: March 14, 2024
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

11