United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Milwaukee, WI, Employer 

__________________________________________ 

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Docket No. 16-1068 

Issued: October 21, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 26, 2016 appellant filed a timely appeal from a December 18, 2015 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed from the last merit decision dated April 14, 2015 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.2

ISSUE 

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

request for an oral hearing. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted additional evidence to OWCP which was received after the 

December 18, 2015 decision was issued. The Board’s jurisdiction is limited to reviewing the evidence that was 

before OWCP at the time of its final decision. Therefore, the Board lacks jurisdiction to review this additional 

evidence. 20 C.F.R. § 501.2(c)(1). 
2

On appeal appellant contends that she was never made aware of the hearing. She further 

contends that she sent a letter to the Branch of Hearings and Review on December 16, 2016 

inquiring as to the status of her hearing request and was subsequently informed that she failed to 

meet her obligation to appear at the hearing of which she claimed to have no notice. 

FACTUAL HISTORY 

Appellant, a 48-year-old postal clerk, filed a traumatic injury claim (Form CA-1) alleging 

a left knee injury on December 18, 2005 due to lifting large boxes in the performance of duty. 

OWCP accepted the claim for left knee strain and derangement of the medial meniscus. 

On December 18, 2014 appellant filed a claim for a recurrence (Form CA-2a) alleging 

that her left knee condition had worsened due to her federal employment to the point that she 

needed a total knee replacement. 

By decision dated April 14, 2015, OWCP denied the recurrence claim as the medical 

evidence of record supported that appellant had experienced an intervening cause of injury. 

On April 29, 2015 appellant requested an oral hearing before a hearing representative of 

OWCP’s Branch of Hearings and Review. 

In an October 21, 2015 notice, OWCP’s Branch of Hearings and Review scheduled an 

oral hearing for 1:00 p.m. (Eastern Standard Time) on December 2, 2015. It provided appellant 

with a toll-free number and passcode for the telephone hearing. OWCP advised appellant that 

postponement of the hearing would only be permitted upon receipt of documentation showing 

her nonelective hospitalization or that the death of a spouse, parent, or child prevented her 

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

On December 2, 2015 appellant failed to participate in the telephone hearing. 

By decision dated December 18, 2015, an OWCP hearing representative found that 

appellant had failed to appear at the oral hearing and had abandoned her request. The hearing 

representative found that there was no evidence that she 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.3 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.4

 OWCP has the burden of proving that it mailed notice of a 

 3

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

4

 20 C.F.R. § 10.617(b). 
3

scheduled hearing to a claimant.5 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 

the date set for the hearing that another hearing be scheduled.6

 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.7 Where it has been 

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

decision finding that the claimant has abandoned his or her request for a hearing.8

ANALYSIS 

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

request for an oral hearing. 

On appeal appellant contends that she was never made aware of the hearing. She further 

contends that she sent a letter to the Branch of Hearings and Review on December 16, 2016 

inquiring as to the status of her hearing request and was subsequently informed that she had 

failed to meet her obligation to attend the hearing. 

The record establishes that on October 21, 2015 in response to appellant’s timely request 

for an oral hearing, the Branch of Hearings and Review mailed to appellant’s known address a 

notice of the telephonic hearing, which was scheduled to be held on December 2, 2015 at 1:00 

p.m. (Eastern Standard Time). 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.9 The Board finds that 

the notice was sent more than 30 days prior to the scheduled hearing date. The record establishes 

that appellant did not appear at the appointed time. Further, she did not request a postponement 

of the hearing prior to December 2, 2015 or 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. 

 5 See M.B., Docket No. 10-1077 (issued March 17, 2011). 

6

 20 C.F.R. § 10.622(f). 

7 Id. 

8 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). 

9 See R.M., Docket No. 14-1512 (issued October 15, 2014). 
4

ORDER 

IT IS HEREBY ORDERED THAT the December 18, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 21, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees' Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees' Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees' Compensation Appeals Board