United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.C., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Milwaukee, WI, Employer 

__________________________________________ 

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Docket No. 15-0007 

Issued: September 17, 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 1, 2014 appellant filed a timely appeal of a September 3, 2014 nonmerit 

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

 As more than 180 days 

elapsed from the date of OWCP’s last merit decision on November 15, 2013 to 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 to review the merits of this case.3 

                                                             1

 On appeal appellant advised that she was unable to call at the scheduled time because the telephone system was 

experiencing technical difficulties. The Board notes that this argument constitutes new evidence which the Board 

may not review for the first time on appeal. See 20 C.F.R. § 501.2(c)(1). 

2

 5 U.S.C. § 8101 et seq. 

3

 Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). By order dated August 13, 2015, the Board denied the request on the grounds that appellant’s arguments 

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

Order Denying Request for Oral Argument, Docket No. 15-0007 (issued August 13, 2015). 
2

ISSUE 

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

for an oral hearing. 

On appeal appellant advised that she was unable to call at the scheduled time because the 

telephone system was experiencing technical difficulties. 

FACTUAL HISTORY 

Appellant, a 50-year-old safety technician, filed an occupational disease claim (Form 

CA-2) alleging a right wrist condition when she fell due to factors of her federal employment. 

By decision dated November 15, 2013, OWCP denied the claim because appellant had 

failed to establish fact of injury, finding the medical evidence insufficient to establish a diagnosis 

in connection with factors of her federal employment. 

On December 5, 2013 appellant requested an oral hearing before an OWCP hearing 

representative. 

In a July 3, 2014 notice, OWCP’s Branch of Hearings and Review scheduled an oral 

hearing for 1:00 p.m. Eastern Time on August 19, 2014. It provided appellant with a toll-free 

number and pass code for the telephone hearing. The notice was mailed to appellant’s address of 

record. 

On August 19, 2014 appellant failed to participate in the telephone hearing. 

By decision dated September 3, 2014, an OWCP hearing representative found that 

appellant had failed to appear at the oral hearing and had abandoned her request. She found no 

evidence that appellant had contacted OWCP prior to or subsequent to the scheduled 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.4

 Unless 

otherwise directed in writing by the claims examiner, an OWCP 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 notice of a 

scheduled hearing to a claimant.6

 Section 10.622(f) of OWCP regulations provide that a 

claimant who fails to appear at a scheduled hearing may request in writing within 10 days after 

                                                             4

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

5

 20 C.F.R. § 10.617(b). 

6 See M.B., Docket No. 10-1077 (issued March 17, 2011). 
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the date set for the hearing that another hearing be scheduled.7 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.8 Where it has been 

determined that a claimant has abandoned her right to a hearing, OWCP will issue a formal 

decision finding that the claimant has abandoned her request for a hearing.9

 

ANALYSIS 

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

for an oral hearing. 

The record establishes that on July 3, 2014 in response to appellant’s timely request for 

an oral hearing, the Branch of Hearings and Review mailed an appropriate notice of the 

scheduled hearing to be held on August 19, 2014 at 1:00 p.m. Eastern Time by telephone. The 

hearing notice was properly mailed to appellant’s last known address of record. As the Board 

has held, in the absence of evidence to the contrary, a letter properly addressed and mailed in the 

due course of business is presumed to have arrived at the mailing address in due course. This is 

known as the mailbox rule.10 The Board finds that the notice was sent more than 30 days prior to 

the scheduled hearing date of August 19, 2014. The record establishes that appellant did not 

appear at the appointed time. Further, the record establishes that she failed to contact OWCP’s 

Branch of Hearings and Reviews either to request a postponement of the hearing prior to 

August 19, 2014, or to explain her failure to appear at the hearing within 10 days of the 

scheduled hearing. Thus, the Board finds that appellant abandoned her request for an oral 

hearing. 

CONCLUSION 

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

for an oral hearing. 

                                                             7

 20 C.F.R. § 10.622(f). 

8 Id. 

9 See N.L., Docket No. 15-0713 (issued July 14, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Hearings and Reviews of the Written Record, Chapter 2.1601.6(g) (October 2011). 

10 See R.M., Docket No. 14-1512 (issued October 15, 2014). 
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ORDER 

IT IS HEREBY ORDERED THAT the September 3, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 17, 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