United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 16-0577 

Issued: May 6, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 19, 2016 appellant filed a timely appeal from a July 28, 2015 nonmerit 

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

 As more than 180 days 

has elapsed from March 26, 2015 the date of the most recent OWCP merit decision, to the filing 

of the current appeal, pursuant to the Federal Employees’ Compensation Act2

 (FECA) and 

20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s 

claim. 

 1

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from July 28, 2015, the date of OWCP’s last decision was 

January 24, 2016. As this fell on a Sunday, the appeal would have been due the next business day which was 

Monday, January 25, 2016. Since using February 1, 2016, the date the appeal was received by the Clerk of the 

Appellate Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. 

The date of the U.S. Postal Service postmark is January 19, 2016 rendering the appeal timely filed. See 20 C.F.R. 

§ 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant abandoned her request for a hearing. 

FACTUAL HISTORY 

On January 23, 2015 appellant, then a 53-year-old equipment operator, filed a traumatic 

injury claim (Form CA-1) alleging that on January 12, 2015 she sustained a fractured right toe in 

the performance of duty. She alleged that she began to feel right foot pain after constantly 

jumping from the hard surface of a power jack onto concrete without matting. 

By decision dated March 26, 2015, OWCP denied appellant’s claim because the evidence 

of record did not support that the injury occurred as described. 

On April 20, 2015 appellant requested an oral hearing before an OWCP hearing 

representative. 

In a May 21, 2015 letter, OWCP notified appellant that a video teleconference hearing 

was scheduled for July 7, 2015 at 2:30 p.m. It provided the address of the video teleconference 

location. The notice was mailed to appellant’s address of record. 

Appellant did not appear at the scheduled hearing. 

By decision dated July 28, 2015, OWCP found that appellant abandoned her request for a 

hearing. The decision noted that the hearing was scheduled for July 7, 2015, but appellant failed 

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

contacted OWCP prior or subsequent to the scheduled hearing to explain her failure to 

participate. OWCP concluded that appellant abandoned her hearing request. 

On appeal appellant contends that she missed the hearing because of a family 

commitment. She notes that OWCP’s letter advised that a medical emergency was the only 

justification for rescheduling the hearing. 

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 claims examiner, 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 notice of a scheduled 

hearing to a claimant.5

 

 3 Id. at § 8124(b)(1); 20 C.F.R. § 10.616(a). 

4

 20 C.F.R. § 10.617(b). 

5 See Michelle R. Littlejohn, 42 ECAB 463 (1991). 
3

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 

record.6

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.7

ANALYSIS 

By decision dated March 26, 2015, OWCP denied appellant’s traumatic injury claim. 

Appellant submitted a timely request for a hearing. In a May 21, 2015 letter, OWCP notified 

appellant of the time and location for the July 7, 2015 scheduled hearing. The notice was mailed 

to appellant’s address of record. Appellant did not appear at the prescribed time. She did not 

request a postponement of the hearing or explain her failure to appear at the hearing within 10 

days of the scheduled hearing date of July 7, 2015. The Board, therefore, finds that appellant 

abandoned her request for a hearing. 

On appeal appellant contends that she missed the hearing because of a family 

commitment. There is no evidence, however, that she contacted OWCP to provide this 

information 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.8

CONCLUSION 

The Board finds that OWCP properly found that appellant abandoned her request for a 

hearing. 

 6

 20 C.F.R. § 10.622(f). 

7

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

2.1601.6(g) (October 2011). 

8 See 20 C.F.R. § 501.2(c)(1). 
4

ORDER 

IT IS HEREBY ORDERED THAT the July 28, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 6, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board