United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Tampa, FL, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1358 

Issued: December 4, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 1, 2015 appellant filed a timely appeal from an April 7, 2015 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP).1

 As more than 180 days elapsed 

from OWCP’s last merit decision dated July 24, 2014 and the filing of this appeal, 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. 

ISSUE 

The issue is whether OWCP properly determined that appellant abandoned her request 

for an oral hearing. 

 1

 Appellant submitted a timely request for oral argument in connection with OWCP’s April 7, 2015 decision. 

After exercising its discretion, the Board issued an order on October 14, 2015 denying her request for oral argument 

as the arguments on appeal could be adequately addressed in a decision based on a review of the case record. Order 

Denying Request for Oral Argument, Docket No. 15-1358 (issued October 14, 2015). 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On December 28, 2010 appellant, then a 52-year-old nursing assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on August 14, 2010 she sprained her lower back and 

buttocks moving a patient. OWCP accepted the claim for sprain of the lumbosacral 

joint/ligament. 

On March 6, 2014 appellant filed a recurrence of disability claim (Form CA-2a) alleging 

that she required medical treatment beginning June 19, 2013 causally related to her August 14, 

2010 employment injury. 

In a decision dated July 24, 2014, OWCP found that appellant had not established a 

recurrence of disability beginning June 19, 2013. 

On August 14, 2014 appellant requested an oral hearing before an OWCP hearing 

representative. 

In a February 13, 2015 notice, OWCP’s Branch of Hearings and Review scheduled a 

telephone hearing for 2:00 p.m. Eastern Time on March 23, 2015. It provided appellant with a 

toll-free number and pass code for the telephone hearing and OWCP mailed the notice to her 

address of record. 

Appellant did not call in to the scheduled hearing. 

By decision dated April 7, 2015, the hearing representative found that appellant had 

abandoned her request for a hearing. He found that appellant had received written notification of 

the hearing 30 days in advance, but failed to appear.3

 The decision further found no evidence 

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

explain her failure to participate. It concluded that she had abandoned her hearing request. 

On appeal appellant argues that she was unable to participate in the hearing due to an 

emergency illness. 

LEGAL PRECEDENT 

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

writing to the address specified in the decision within 30 days of the date of the decision for 

which a hearing is sought.4 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 

 3

 The decision indicates that the hearing was scheduled for March 24, 2015 rather than March 23, 2015; however, 

this appears to be a typographical error. 

4

 20 C.F.R. § 10.616(a). 
3

representative at least 30 days before the scheduled date.5 OWCP has the burden of proving that 

it properly mailed to appellant and her representative a notice of a scheduled hearing.6

 

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.7 

ANALYSIS 

Following OWCP’s July 24, 2014 decision finding that appellant had not established a 

recurrence of disability, she filed a timely request for an oral hearing before an OWCP hearing 

representative. On February 13, 2015 OWCP’s Branch of Hearings and Review notified her that 

it had scheduled a telephone hearing for March 23, 2015 at 2:00 p.m. Eastern Time. OWCP 

properly sent the notice to appellant’s address of record.8 Appellant failed to call in for the 

scheduled hearing. She did not request a postponement or provide any explanation to OWCP for 

her failure to attend the hearing within 10 days of the scheduled hearing. As appellant did not 

request a postponement, did not call in to the scheduled hearing, and did not provide any 

notification to the Branch of Hearings and Review within 10 days of the scheduled hearing 

explaining her failure to appear, the Board finds that she abandoned her request for an oral 

hearing.9

 

On appeal appellant contends that she was not able to call in for the scheduled hearing 

due to an emergency illness. There is no evidence, however, that she provided this information 

to OWCP within 10 days of the scheduled hearing. The Board is precluded from reviewing 

evidence not before OWCP at the time it issued its final decision.10

Appellant also raises arguments relevant to the merits of her claim. As noted, however, 

the Board lacks jurisdiction over the July 24, 2014 merit decision of OWCP. 

 5 Id. at § 10.617(b). 

6 T.P., Docket No. 15-0806 (issued September 11, 2015); K.D., Docket No. 11-77 (issued August 18, 2011). 

7

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

Record, Chapter 2.1601.6(g) (October 2011). 

8

 Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is 

presumed to have been received. This is called the mailbox rule. See James A. Gray, 54 ECAB 277 (2002). 

9 See supra note 7; see also C.H., Docket No. 14-0620 (issued June 24, 2014). 

10 See supra note 7 at § 501.2(c)(1). 
4

CONCLUSION 

The Board finds that OWCP properly determined that appellant HAD abandoned her 

request for an oral hearing. 

ORDER 

IT IS HEREBY ORDERED THAT the April 7, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 4, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board