United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.E., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Santa Clarita, CA, 

Employer 

__________________________________________ 

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Docket No. 14-1485 

Issued: April 7, 2015 

Appearances: Case Submitted on the Record

Manuel B. Madrid, for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 19, 2014 appellant filed a timely application for review from a January 9, 2014 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) finding that she 

had abandoned her request for an oral hearing. Because more than 180 days elapsed from 

June 14, 2013, the date of the most recent merit decision, to the filing of this appeal, and 

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 appellant’s claim. 

ISSUE 

The issue is whether appellant abandoned her request for an oral hearing before an 

OWCP hearing representative. 

On appeal, appellant contends that she was unable to attend her hearing due to a family 

emergency and medical problems. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On June 19, 2003 appellant, then a 46-year-old mail processing clerk, filed a traumatic 

injury claim alleging that on April 10, 2003 she sustained injuries to her left upper back, left arm, 

and neck due to repetitive reaching and bending over the course of 30 to 40 minutes. By 

decision dated August 5, 2003, OWCP accepted the claim for cervical strain. 

On October 21, 2004 appellant accepted a limited-duty assignment as a modified 

distribution clerk. She noted that she accepted the position under duress and that she disagreed 

with the change in job title and changes in her hours. The employing establishment continued to 

offer appellant modified assignments through December 28, 2007 within appellant’s medical 

restrictions, which she continued to sign under protest. 

On April 13, 2009 the employing establishment informed appellant that it was unable to 

identify any available operationally necessary tasks within her medical restrictions. In a record 

of a telephone conversation dated May 8, 2009, an OWCP representative confirmed that 

appellant was still off work. On February 26, 2013 appellant accepted a job offer as a customer 

care agent, but noted that she also accepted this job offer under duress because her benefits were 

being threatened. 

By decision dated June 14, 2013, OWCP found that appellant’s wages as a customer care 

agent fairly and reasonably represented her wage-earning capacity, and her actual earnings met 

or exceeded the current wages of the position held when injured. It terminated her wage-loss 

compensation payments and noted that the decision did not affect coverage of her medical 

benefits. 

On July 9, 2013 appellant requested an oral hearing before the Branch of Hearings and 

Review on the issue of her wage-earning capacity. 

By letter dated October 25, 2013, OWCP notified appellant that her hearing would be 

held on December 9, 2013 at noon, Eastern Time. It provided her with a toll-free number to call 

at that time to be connected to the hearing representative and court reporter, along with a pass 

code. Appellant responded by letter dated December 4, 2013, noting that Roy Dumas would be 

her representative at the hearing on December 9, 2013 at noon, Eastern Time. Neither appellant 

nor her representative participated in the scheduled hearing. 

By decision dated January 9, 2014, an OWCP hearing representative found that appellant 

had abandoned her request for an oral hearing. She noted that appellant received written notice 

30 days in advance of the hearing but failed to appear. The hearing representative also found no 

evidence that appellant contacted OWCP either prior to or subsequent to the scheduled hearing to 

explain her failure to appear. 
3

LEGAL PRECEDENT 

Section 8124(b)(1) of FECA provides the right to a hearing before an OWCP hearing 

representative, stating: 

“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 [her] claim before a representative of the Secretary.”2

A claimant who has received a final adverse decision by OWCP may obtain a hearing by 

writing 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, OWCP’s 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

 OWCP has the burden of proving that 

it mailed to appellant and her representative a notice of a scheduled hearing.5

OWCP’s regulations which govern abandonment of hearing provide as follows: 

“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.”6

ANALYSIS 

Following OWCP’s June 14, 2013 decision concerning appellant’s wage-earning 

capacity, appellant requested an oral hearing before an OWCP hearing representative. On 

October 25, 2013 OWCP notified appellant that her telephonic hearing was scheduled for 

December 9, 2013 at noon, Eastern Time. It provided her with a toll-free number and a pass 

code to use at the time of the scheduled hearing. Appellant did not request a postponement, 

failed to call in at the scheduled hearing, and failed to provide any notification for such failure to 

OWCP within 10 days of the scheduled date of the hearing. 

 2 Id. at § 8124(b)(1). 

3

 20 C.F.R. § 10.616(a). 

4 Id. at 10.617(b). 

5 See Michelle R. Littlejohn, 42 ECAB 463 (1991); see also K.D., Docket No. 11-77 (issued August 18, 2011). 

6

 20 C.F.R. § 10.622(f); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the 

Written Record, Chapter 2.1601.6(g) (October 2011). See also M.F., Docket No. 14-128 (issued March 18, 2014). 
4

On appeal, appellant explained that her absence from the hearing was due to family 

emergency and medical problems. However, she did not provide such notification to OWCP 

within 10 days of the scheduled date of the hearing. All three conditions for abandonment are 

met and the Board finds that appellant abandoned her request for an oral hearing.7

CONCLUSION 

The Board finds that appellant abandoned her request for an oral hearing before an 

OWCP hearing representative on December 9, 2013. 

ORDER 

IT IS HEREBY ORDERED THAT the January 9, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 7, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 7 C.H., Docket No. 14-620 (issued June 25, 2014).