United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Pearl City, HI, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1886 

Issued: February 4, 2016 

Appearances: Case Submitted on the Record 

Glenn Taga, Esq., for the Appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 4, 2015 appellant, through counsel, filed a timely appeal from a March 12, 

2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the date of issuance of the last OWCP merit decision dated June 19, 

2014 to the filing of this appeal, 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 this case. 

ISSUE 

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

an oral hearing before an OWCP hearing representative. 

On appeal, appellant contends that neither he nor his counsel received notice of the 

hearing. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On April 28, 2014 appellant, then a 59-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his lower back and right elbow while loading 17 to 

20 parcels into the back of the truck on January 7, 2014. He submitted a May 9, 2014 letter from 

the employing establishment which indicated that he initially reported his absence from work 

under the Family and Medical Leave Act and had worked for 16 weeks without reporting the 

injury. 

On May 13, 2014 OWCP advised appellant of the deficiencies in his claim and requested 

additional factual and medical information. Appellant submitted a June 11, 2014 response to 

OWCP’s questionnaire, several medical reports from August 2011 through April 2, 2014, work 

status reports from January 2012 through June 2014, diagnostic tests, including a magnetic 

resonance imaging scan report, and x-ray reports, physical therapy reports, a coworker’s 

statement, and a notice of representation of counsel dated June 12, 2014. Counsel’s address was 

noted as being Pioneer Plaza, Suite 910 in Honolulu, HI. 

By decision dated June 19, 2014, OWCP denied the claim finding the evidence was 

insufficient to establish that the medical condition was causally related to the accepted work 

event(s). Counsel’s copy of the decision was sent to Suite 910, Pioneer Plaza, Honolulu, HI. 

On July 17, 2014 appellant, through his representative of record, disagreed with the 

decision and requested an oral hearing before a hearing representative in OWCP’s Branch of 

Hearings and Review. Counsel’s letter head and envelope noted his address as Pioneer Plaza, 

Suite 1120, 900 Fort Street Mall, in Honolulu, HI 96813. 

In a January 16, 2015 letter, OWCP notified appellant that a hearing before an OWCP 

hearing representative was scheduled for February 17, 2015 at 3:00 p.m. Eastern Standard Time. 

Appellant was provided a toll free number and a pass code to connect to the hearing 

representative and court reporter. A copy of the letter was sent to him at his address of record 

and to his counsel at Pioneer Plaza, Suite 910, 900 Fort Street Mall, in Honolulu, HI 96813. 

On February 17, 2015 appellant and counsel failed to participate in the telephone hearing. 

By decision dated March 12, 2015, an OWCP hearing representative found that appellant 

failed to appear at the oral hearing and had abandoned his request. He found no evidence that 

appellant had contacted OWCP prior to or subsequent to the scheduled hearing. A copy of the 

decision was mailed to appellant’s counsel at the Pioneer Plaza, Suite 910, 900 Fort Street Mall, 

in Honolulu, HI 96813. 

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.2 Unless 

 2

 5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a). 
3

otherwise directed in writing by the claim, 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.3 OWCP has the burden of proving that it mailed notice of a scheduled hearing to 

a claimant.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.5

 Under these circumstances, the 

Branch of Hearings and Review will issue a formal decision finding that the claimant has 

abandoned his or her request for a hearing and return the case to the district OWCP.6

 

ANALYSIS 

Appellant asserts on appeal that he did not abandon his hearing as he never received 

notice of the scheduled hearing. The Board agrees. 

On January 16, 2015 OWCP notified appellant and counsel that the hearing was 

scheduled and on March 12, 2015 it issued its decision finding that appellant had abandoned his 

request for an oral hearing before an OWCP hearing representative. However, the record reflects 

that appellant’s counsel had indicated in his correspondence requesting an oral hearing on 

July 17, 2014 a different suite address. OWCP also scanned his envelope which contained the 

new address. The envelope and letter provided OWCP notice of counsel’s last known address. 

OWCP, however, mailed both the January 16, 2015 hearing notice and the March 12, 2015 

decision to counsel’s former address at Suite 910. The record establishes that OWCP did not 

mail the notice of oral hearing to appellant’s counsel’s correct address which was Suite 1120.7 

The presumption inherent in the mailbox rule, that a notice mailed to an individual in the 

ordinary course of business was received by that individual, is rebutted.8

The Board finds that the record establishes that the notice of hearing was not properly 

addressed and mailed to appellant’s counsel. OWCP regulations and the Board case law require 

 3 Id. at § 10.617(b). 

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

5

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

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

6

 Federal (FECA) Procedure Manual, id. 

7 See Clara T. Norga, 46 ECAB 0473 (1995) (where OWCP’s finding of abandonment in a case rests on the 

strength of the presumption that the notice was properly addressed and duly mailed). 

8 B.R., Docket No. 09-0205 (issued July 23, 2009); see supra note 4. 
4

OWCP to send a copy of its decision to the authorized counsel.9

 The Board has held that a 

decision under FECA is not properly issued unless both appellant and the authorized counsel 

have been sent copies of the decision.10 As the January 16, 2015 notice was not properly 

addressed to appellant’s counsel, OWCP has not met its burden of proof that it mailed appellant 

notice of the scheduled hearing. Therefore, the case must be remanded to OWCP so that the 

notice may be properly issued. 

CONCLUSION 

The Board finds that OWCP did not properly determine that appellant abandoned his 

hearing request. The case will be remanded to OWCP to schedule a hearing before an OWCP 

hearing representative with proper notice provided to appellant and his counsel. 

 9

 20 C.F.R. § 10.127 provides, a copy of the decision shall be mailed to the employee’s last known address. If the 

employee has a designated representative before OWCP, a copy of the decision will also be mailed to the 

representative. See also M.R., Docket No. 11-0632 (issued September 28, 2011). In George R. Bryant, Docket 

No. 03-2241 (issued April 19, 2005), the Board found that OWCP did not properly issue its June 18, 2003 decision 

when it did not send a copy of that decision to the authorized representative. In James Consentino, Docket No. 04-

1774 (issued October 21, 2004), the Board found that OWCP improperly issued a decision terminating 

compensation because it did not mail the decision to appellant’s representative and declared the termination decision 

null and void. 

10 See R.J., Docket No. 12-0174 (issued June 25, 2012); Travis L. Chambers, 55 ECAB 138 (2003). 
5

ORDER 

IT IS HEREBY ORDERED THAT the March 12, 2015 decision of the Office of 

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

consistent with this opinion of the Board. 

Issued: February 4, 2016 

Washington, DC 

 

 Christopher J. Godfrey, 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