United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.H., Appellant 

and 

U.S. MARINE CORPS, MARINE CORPS 

INSTALLATION EAST, Albany, GA, Employer 

__________________________________________ 

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Docket No. 16-0379 

Issued: April 20, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 December 28, 2015 appellant filed a timely appeal from a July 16, 2015 nonmerit 

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

has elapsed from the last merit decision dated November 14, 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 to review the merits of the claim. 

ISSUE 

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

a hearing. 

FACTUAL HISTORY 

On September 19, 2014 appellant, then a 50-year-old materials expediter filed a traumatic 

injury claim (Form CA-1) alleging that on September 18, 2014 he experienced breathing 

 1

 5 U.S.C. § 8101 et seq. 
2

problems after inhaling diesel fuel while in the performance of duty. He stopped work on 

September 18, 2014 and returned on September 23, 2014. 

By letter dated October 6, 2014, OWCP advised appellant of the type of evidence needed 

to establish his claim, particularly requesting that appellant submit a physician’s reasoned 

opinion addressing the relationship of his claimed condition and specific employment factors. 

Appellant was treated by Dr. Jyotir Mehta, a Board-certified pulmonologist, on 

March 30, 2010 and October 6, 2014 for bronchial asthma and reactive airway disease secondary 

to chemical exposure. He diagnosed asthma, shortness of breath, wheezing, and obstructive 

sleep apnea. Dr. Mehta performed a pulmonary function test on October 6, 2014 which revealed 

severe obstructive airways disease and hyperactive airway disease. In emergency room notes 

dated September 18, 2014, appellant was treated for minor-to-moderate exposure to fumes. He 

reported inhalation of noxious fumes after a chemical spill at work. Dr. William Flowers, a 

Board-certified emergency room physician diagnosed bronchospasm and toxic effect of gas, 

fumes, or vapors. 

In a narrative statement dated October 31, 2014, appellant indicated that on 

September 18, 2014 he was transferred to another job site. He informed management that he 

could not work around motor vehicles with fumes and dust. Appellant reported to his work 

station and began to inhale fumes which caused him to be short of breath, his throat began to 

swell and he vomited. He called an ambulance and he was taken to the hospital. 

By decision dated November 14, 2014, OWCP denied appellant’s claim, finding that the 

evidence of record did not support that the injury or event occurred as alleged. 

On December 10, 2014 appellant requested an oral hearing before an OWCP hearing 

representative. He submitted reports from Dr. Parina Lockette, a Board-certified family 

practitioner, dated October 17, 2014 to November 5, 2017, who returned appellant to work with 

restrictions of working in an area free of toxins and fumes, noting that these agents aggravate his 

asthma. 

On May 18, 2015 OWCP notified appellant that a telephone hearing would be held on 

June 26, 2015 at 12:45 p.m., Eastern Standard Time (EST). It instructed appellant to call the 

provided toll-free number shortly before the hearing time and enter the pass code to gain access 

to the conference call. OWCP mailed the May 18, 2015 notice of hearing to his address of 

record. 

By decision dated July 16, 2015, OWCP found that appellant had abandoned his request 

for a hearing. It determined that appellant received a written notice of the hearing 30 days before 

the scheduled hearing, but did not appear and that he failed to timely explain his absence from 

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 
3

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 claimant, 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

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.4

 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.5

ANALYSIS 

On November 14, 2014 OWCP denied appellant’s claim. Appellant timely requested an 

oral hearing. In an May 18, 2015 letter, OWCP notified him that a telephone hearing was 

scheduled for June 26, 2015 at 12:45 p.m. EST. It instructed appellant to telephone a toll-free 

number and enter a pass code to connect with the hearing representative. Appellant did not 

telephone at the appointed time, nor did he request a postponement of the hearing or explain his 

failure to appear at the hearing within 10 days of the scheduled hearing date of June 26, 2015. 

The Board therefore finds that he abandoned his request for a hearing. 

On appeal appellant asserts that he suffers from reactive airway disease and was unable to 

participate in the process at that time, but would like to reschedule the hearing. The Board finds 

that he failed to request a postponement of the scheduled hearing appear at the scheduled 

hearing, or provide any notification for such failure within 10 days of the scheduled date. 

Appellant therefore abandoned his request for an oral hearing. 

CONCLUSION 

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

an oral hearing. 

 2

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

3

 20 C.F.R. § 10.617(b). 

4 Id. at § 10.622(f). 

5

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

2.1601.6(g) (October 2011); see also 20 C.F.R. § 10.622(c). 
4

ORDER 

IT IS HEREBY ORDERED THAT the July 16, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 20, 2016 

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