United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

Z.D., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Buffalo, NY, Employer 

__________________________________________ 

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Docket No. 15-1653 

Issued: November 19, 2015 

Appearances: Case Submitted on the Record

Martin Kaplan, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 30, 2015 appellant, through counsel, filed a timely appeal from a June 25, 2015 

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

180 days elapsed since the last merit decision dated October 17, 2014 and the filing of the 

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 abandoned his request for a 

hearing. 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

Appellant, a 25-year-old border patrol officer, filed a claim for traumatic injury (Form 

CA-1) on September 5, 2014 alleging that he strained his lower back after attending back-toback training classes on August 29, 2014. 

In a report dated September 24, 2014, Dr. Waqar Waheed, Board-certified in neurology 

and neuromuscular medicine, advised that appellant was experiencing bilateral lower extremity 

weakness and pain which began approximately three months previously when he started training 

at a law enforcement academy in Georgia. He reported that appellant was involved in significant 

physical activity and training when he started to experience bilateral knee pain. Appellant was 

evaluated and diagnosed with possible bilateral knee tendinitis; he continued with his training, 

but began having pain radiating from his buttocks bilaterally to the posterior aspect of his thighs, 

which had a numbness and tingling sensation. Dr. Waheed asserted that appellant’s condition 

continued to deteriorate and he started experiencing weakness in the lower extremities and 

spasms with associated numbness, tingling sensation, and flushing. Appellant underwent a 

magnetic resonance imaging (MRI) scan of the entire spine which showed mild degenerative 

changes at C5-6 and disc protrusion at L5-S1 with mild L5-S1 neuroforaminal stenosis. 

Dr. Waheed advised that the MRI scan did not show any evidence of myelopathy, upper motor 

neuron deterioration process, or motor neuron disease. He scheduled appellant for further 

diagnostic tests. 

In a September 5, 2015 report, Dr. Michael Dunn, a Board-certified family practitioner, 

advised that appellant had been experiencing mild lower back pain after an injury which 

occurred at a training class on August 29, 2014. He reported that appellant had pain in the low 

back with radiating pain to the anterior aspect of the right and left leg and his feet. Dr. Dunn 

diagnosed lumbar radiculopathy and asserted that appellant had been scheduled for further 

evaluation due to a worsening of his symptoms. 

By decision dated October 17, 2014, OWCP denied appellant’s claim, finding that he 

failed to submit sufficient medical evidence in support of his claim that he sustained a lower 

back injury in the performance of duty on August 29, 2014. 

On November 12, 2014 appellant requested an oral hearing before an OWCP hearing 

representative. He obtained legal counsel on November 14, 2014. 

On May 4, 2015 OWCP sent a notice of a telephonic hearing to appellant and counsel. It 

provided procedural information regarding the hearing. The notice stated that a hearing would 

be held on June 12, 2015 at 10:00 a.m. Eastern Time. Appellant did not appear at the hearing. 

By decision dated June 25, 2015, OWCP determined that appellant had abandoned his 

request for a hearing. It explained that there was no evidence of record that appellant had 

contacted OWCP either prior to or within 10 days after the scheduled hearing to explain his 

failure to appear. 
3

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 

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.3 OWCP has the burden of proving that it mailed notice of a scheduled 

hearing to a claimant.4 

A hearing before the Branch of Hearings and Review can be considered abandoned only 

under very limited circumstances.5 With respect to abandonment of hearing requests, Chapter 

2.1601.6(g) of OWCP’s procedures provide in relevant part that failure of the claimant to appear 

at the scheduled hearing, failure to request a postponement, and failure to request in writing 

within 10 days after the date set for the hearing that another hearing be scheduled shall constitute 

abandonment of the request for a hearing. 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 office.6 

ANALYSIS 

In finding that appellant abandoned his November 12, 2014 request for a hearing, OWCP 

noted that a hearing had been scheduled by telephone for June 12, 2015, that he received written 

notification of the hearing 30 days in advance, that he failed to appear, and that the record 

contained no evidence that he contacted OWCP to explain his failure to attend the hearing. 

Based on the evidence of the record, appellant did not request postponement of the hearing date, 

failed to appear at the scheduled hearing, and failed to provide any notification for such failure 

within 10 days of the scheduled date of the hearing. As this meets the criteria for abandonment 

as specified in Chapter 2.1601.6(e) of OWCP’s procedures, OWCP properly found that he 

abandoned his request for an oral hearing before an OWCP hearing representative. 

On appeal appellant’s counsel alleges that the hearing should not be considered 

abandoned because counsel had submitted a letter canceling the oral hearing and requesting 

instead that the hearing representative issue a decision on the written record. The Board notes 

that the record does not contain a letter from counsel requesting that the oral argument be 

cancelled prior to the issuance of the June 25, 2015 decision. 

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

3 Id. at § 10.617(b). 

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

5 Claudia J. Whitten, 52 ECAB 483 (2001). 

6

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

2.1601.6(g) (October 2011). 
4

CONCLUSION 

The Board finds that OWCP properly determined that appellant abandoned his request for 

a hearing. 

ORDER 

IT IS HEREBY ORDERED THAT the June 25, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 19, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board