United States Department of Labor 

Employees’ Compensation Appeals Board 

___________________________________________

J.L., Appellant 

and 

DEPARTMENT OF THE ARMY, 

INSTALLATION MANAGEMENT 

COMMAND, JB Lewis-McChord, WA, Employer

___________________________________________

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Docket No. 15-0828 

Issued: August 3, 2015 

Appearances: Case Submitted on the Record 

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 3, 2015 appellant timely appealed a December 15, 2014 nonmerit decision of 

the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed 

from May 16, 2014, the date of the most recent merit decision, 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 appellant’s claim. 

ISSUE 

The issue is whether OWCP properly found that appellant abandoned his request for a 

hearing. 

FACTUAL HISTORY 

On June 16, 2011 appellant, then a 65-year-old utility systems repairer caught his right 

hand between the railing and a post and hyperextended his left shoulder in the performance of 

duty. He stopped work on that date. 

 1

 5 U.S.C. §§ 8101-8193. 
2

OWCP accepted the claim for sprain of left shoulder and upper arm, rotator cuff left; 

sacroiilitis; localized primary osteoarthritis, shoulder region left; spinal stenosis lumbar region; 

and lumbosacral radiculitis. Appellant underwent authorized arthroscopic left shoulder surgery 

on September 21, 2011 and an L3-L4 laminectomy on April 9, 2012.2

 He received compensation 

benefits. 

By decision dated May 16, 2014, OWCP terminated appellant’s wage-loss compensation 

effective that date because it found that he had no residual disability related to his work injury. 

On May 22, 2014 appellant timely requested a hearing. 

In an August 27, 2014 letter, OWCP notified him that a hearing was scheduled for 

October 22, 2014 at 2:30 p.m. local time. The record reflects that the notice was mailed to his 

address of record. However, the record reflects that later the notice was returned on 

September 15, 2014 for postage. There is no indication that the notification was resent. 

Appellant did not appear at the appointed time for the scheduled hearing. 

By decision dated December 15, 2014, OWCP found that appellant abandoned his 

requested hearing. The decision noted that the hearing was scheduled for October 22, 2014, but 

appellant failed to appear as instructed. The decision also found that there was no indication that 

appellant contacted OWCP either prior or subsequent to the scheduled hearing to explain his 

failure to participate. 

LEGAL PRECEDENT 

Under FECA and its implementing regulations, a claimant who has received a final 

adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified 

in the decision within 30 days of the date of the decision for which a hearing is sought.3

 Unless 

otherwise directed in writing by the claimant, the hearing representative will mail a notice of the 

time and place of the hearing to the claimant and any representative at least 30 days before the 

scheduled date.4

 

A claimant who fails to appear at a scheduled hearing may request in writing within 10 

days after the date set for the hearing that another hearing be scheduled. Where good cause for 

failure to appear is shown, another hearing will be scheduled and conducted by teleconference. 

The failure of the claimant to request another hearing within 10 days, or the failure of the 

claimant to appear at the second scheduled hearing without good cause shown, shall constitute 

abandonment of the request for a hearing. Where good cause is shown for failure to appear at 

the second scheduled hearing, review of the matter will proceed as a review of the written 

 2

 Appellant had a separate Claim No. xxxxxx671 and he underwent a right rotator cuff repair in February 2004. 

3

 5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a). 

4 Id. at § 10.617(b). 
3

record.5

 Where it has been determined that a claimant has abandoned his or her request for a 

hearing, OWCP’s Branch of Hearings and Review will issue a formal decision.6

OWCP has the burden of proving that it mailed a notice of a scheduled hearing to a 

claimant.7

 Under the mailbox rule, it is presumed, in the absence of evidence to the contrary, 

that a notice mailed to an individual in the ordinary course of business was received by that 

individual. This presumption arises when it appears from the record that the notice was properly 

addressed and duly mailed.8

 However, as a rebuttable presumption, receipt will not be assumed 

when there is evidence of nondelivery.9

 

ANALYSIS 

By decision dated May 16, 2014, OWCP terminated appellant’s wage-loss compensation 

effective that date. On May 22, 2014 appellant timely requested a hearing. 

In an August 27, 2014 letter, OWCP notified him that a hearing was scheduled for 

October 22, 2014 at 2:30 p.m. local time. It mailed the notice to appellant’s address of record. 

However, on September 15, 2014, the notice was returned to OWCP by the postal service and 

there is no indication that the notification was resent to appellant. The record demonstrates that 

he did not receive the notice of hearing because the notice was returned to OWCP. Obviously 

the mailbox presumption does not apply. OWCP regulations contemplate that a notice of 

hearing shall be in writing and that it will be mailed at least 30 days before the scheduled 

hearing.10 Therefore, appellant’s failure to appear for the scheduled hearing did not constitute 

abandonment of his hearing request as he did not receive notification of the hearing. 

On appeal, appellant contends that he did not receive notice of the scheduled hearing. As 

explained, the Board finds that OWCP did not properly find that appellant abandoned his request 

for a hearing. Appellant also argued the merits of his claim; however, the only issue before the 

Board is the issue regarding the hearing request and whether OWCP properly found that 

appellant abandoned his request for a hearing. 

CONCLUSION 

The Board finds that OWCP did not provide proper notice to appellant of the hearing 

scheduled for October 22, 2014. The Board finds that OWCP improperly found that he 

 5 Id. at § 10.622(f). 

6

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 

2.1601.6(g) (October 2011). 

7 See Michelle R. Littlejohn, 42 ECAB 463 (1991). 

8 Michelle Lagana, 52 ECAB 187 (2000). 

9 E.C., Docket No. 11-510 (issued September 8, 2011); C.O., Docket No. 10-1796 (issued March 23, 2011); M.U., 

Docket No. 09-526 (issued September 14, 2009). 

10 See supra note 4; C.O., id. 
4

abandoned his request for a hearing. The case must be remanded to OWCP for a hearing to be 

scheduled before an OWCP hearing representative with proper notice provided to all parties. 

ORDER 

IT IS HEREBY ORDERED THAT the December 15, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded to OWCP for further 

proceedings consistent with this decision. 

Issued: August 3, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board