United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Federal Way, WA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1512 

Issued: October 15, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 23, 2014 appellant filed a timely appeal from a May 21, 2014 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP) finding that she abandoned her 

request for an oral hearing. Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the nonmerit decision by 

OWCP. The last merit decision of record was OWCP’s October 3, 2013 decision. Because 

more than 180 days has elapsed between the last merit decision and the filing of this appeal on 

June 23, 2014, the Board lacks jurisdiction to review the merits of this case.2

ISSUE 

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

OWCP hearing representative. 

 1

 5 U.S.C. § 8101 et seq.

2

 An appeal of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the 

decision. 20 C.F.R. § 501.3(e). 
2

FACTUAL HISTORY 

On June 15, 2004 appellant, then a 35-year-old mail processor, filed a traumatic injury 

claim alleging that on that day she sustained a shoulder and neck injury when she was throwing a 

tray of mail on a ledge. By decision dated September 13, 2004, OWCP accepted the claim for 

right shoulder acromioclavicular joint separation. 

On August 8, 2007 appellant returned to work as a mail processing clerk in a modified 

capacity. Beginning June 7, 2013, she began working reduced hours. 

On August 10, 2013 appellant filed a claim for compensation (Form CA-7) for leave 

without pay beginning June 24, 2013. 

In a September 20, 2013 narrative statement, appellant reported that she sustained a 

rotator cuff tear, dislocation and sprain of her right shoulder due to her repetitive employment 

duties which was a continuation of her original injury. She submitted medical reports in support 

of her claim. 

By decision dated October 3, 2013, OWCP denied appellant’s recurrence claim on the 

grounds that the medical evidence failed to establish that her alleged disability and consequential 

conditions were causally related to the accepted June 15, 2004 traumatic injury. 

On October 23, 2013 appellant requested a telephone hearing before the Branch of 

Hearings and Review. 

By letter dated March 20, 2014, OWCP notified appellant that her hearing would be held 

on May 6, 2013 at 4:00 p.m. 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. Appellant did not 

participate in the scheduled hearing. 

By decision dated May 21, 2014, an OWCP hearing representative found that appellant 

had abandoned her request for an oral hearing. The hearing representative noted that appellant 

received written notice 30 days in advance of the hearing but failed to participate. 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. 

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.”3

 3

 5 U.S.C. § 8124(b)(1). 
3

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.4

 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.5

 OWCP has the burden of proving that 

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

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.7

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

is evidence of nondelivery.8

 Also, it is axiomatic that the presumption of receipt does not apply 

where a notice is sent to an incorrect address.9 

The authority governing abandonment of hearings rests with OWCP’s regulations, which 

provide in pertinent part 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.10

ANALYSIS 

Following OWCP’s October 3, 2013 decision denying her recurrence claim, appellant 

requested an oral hearing before an OWCP hearing representative. On March 20, 2014 OWCP 

notified appellant that her telephone hearing was scheduled for May 6, 2014 at 4:00 p.m. Eastern 

time. It provided her with a toll-free number and pass code to call in at the time of the hearing. 

Appellant did not request a postponement, failed to call in at the scheduled hearing and failed to 

provide any notification for such failure within 10 days of the scheduled date of the hearing. As 

all three conditions for abandonment are met, the Board finds that she abandoned her request for 

an oral hearing.11 

 4

 20 C.F.R. § 10.616(a). 

5 Id. at 10.617(b). 

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

7 See Michelle Lagana, 52 ECAB 187 (2000). 

8 See C.O., Docket No. 10-1796 (issued March 23, 2011); M.U., Docket No. 09-526 (issued September 14, 2009). 

9 See Clara T. Norga, 46 ECAB 473 (1995); W.A., Docket No. 06-1452 (issued November 27, 2006). 

10 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). 

11 C.H., Docket No. 14-620 (issued June 25, 2014). 
4

On appeal, appellant claims that she never received the March 20, 2014 OWCP letter 

notifying her of the May 6, 2014 hearing. She did not indicate that her address changed or that 

the address used by OWCP was otherwise incorrect. The address used by OWCP in its 

March 20, 2014 letter is appellant’s last known address and the same address appellant noted in 

her appeal to the Board. The Board has found that, in the absence of evidence to the contrary, a 

letter properly addressed and mailed in the due course of business, such as in the course of 

OWCP’s daily activities, is presumed to have arrived at the mailing address in due course.12 

This is known as the mailbox rule.13 Appellant submitted no evidence substantiating why the 

presumption would not apply. Therefore, the Board finds that appellant is presumed to have 

received notice of the scheduled hearing and will affirm the hearing representative’s May 21, 

2014 decision. 

CONCLUSION 

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

OWCP hearing representative on May 6, 2014. 

ORDER 

IT IS HEREBY ORDERED THAT the May 21, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 15, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 12 M.Y., Docket No. 07-2202 (issued February 12, 2008). 

13 Jeffrey M. Sagrecy, 55 ECAB 724 (2004).