United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.N., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

JESSE BROWN VETERANS 

ADMINISTRATION MEDICAL CENTER, 

Chicago, IL, Employer 

__________________________________________ 

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Docket No. 16-0704 

Issued: June 28, 2016 

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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 26, 2016 appellant timely appealed from an October 27, 2015 nonmerit 

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

elapsed since the last merit decision dated February 27, 2015 to the filing of the instant 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 the case.2

ISSUE 

The issue is whether appellant abandoned his hearing request before OWCP’s Branch of 

Hearings and Review. 

 1

 5 U.S.C. §§ 8101-8193 (2006). 

2

 Appellant timely requested oral argument; however, after exercising its discretion, the Board denied his request 

by order dated June 7, 2016. See Order Denying Request for Oral Argument, Docket No. 16-0704 (issued 

June 7, 2016). 
2

FACTUAL HISTORY 

On April 16, 2002 appellant, then a 55-year-old locksmith, injured his back when he 

slipped and fell on a wet floor while in the performance of duty. OWCP accepted appellant’s 

claim for lumbar radiculopathy. In March 2003, he underwent an L5-S1 laminectomy, 

discectomy and fusion. OWCP paid appellant wage-loss compensation and ultimately placed 

him on the periodic compensations rolls. For several years, appellant continued to receive wageloss compensation for temporary total disability. Effective March 23, 2011, OWCP terminated 

his wage-loss compensation and medical benefits. In a July 7, 2011 decision, a hearing 

representative of the Branch of Hearings and Review affirmed the termination of wage-loss 

compensation, but reversed OWCP’s decision terminating medical benefits.3

In August 2014, appellant filed a claim for a schedule award (Form CA-7). OWCP 

received treatment records from the employing establishment, as well as January 11, 2013 

treatment records from Dr. Fred H. Geisler, a Board-certified neurosurgeon, who diagnosed 

lumbar disc degeneration. Additionally, OWCP received a September 29, 2014 report from 

Dr. Jerrel H. Boyer, a neurosurgeon, who diagnosed lumbar degenerative disc disease, lumbar 

spinal stenosis, cervical spine degeneration, cervical myelopathy, and cervical spinal stenosis. 

OWCP’s district medical adviser reviewed the record on February 13, 2015, and found 

no lower extremity motor or sensory deficits. Consequently, he determined that appellant had 

zero (0) percent impairment of the lower extremities. 

In a February 27, 2015 decision, OWCP denied appellant’s claim for a schedule award. 

On March 6, 2015 counsel for appellant timely requested a hearing. The Branch of 

Hearings and Review wrote to appellant on March 6, 2015 acknowledging receipt of the hearing 

request. On August 27, 2015 it advised both appellant and counsel that a hearing was scheduled 

for October 7, 2015 at 12:30 p.m. Eastern Time. The Branch of Hearings and Review also 

provided the toll-free number and passcode. OWCP mailed the notice to appellant at his last 

known address. 

On September 1, 2015 counsel advised the Branch of Hearings and Review that he would 

not be attending the October 7, 2015 hearing because he no longer represented appellant. He 

similarly advised OWCP that he no longer represented appellant. 

On September 10, 2015 OWCP acknowledged Alan J. Shapiro, Esquire’s withdrawal of 

representation. Additionally, OWCP sent a copy of its September 10, 2015 correspondence to 

appellant. 

Appellant did not appear at the October 7, 2015 oral hearing. 

 3

 The hearing representative found that although the weight of the medical evidence established that appellant 

could return to his date-of-injury job, the evidence did not demonstrate that his accepted lumbar condition had 

resolved without residuals. Consequently, the record did not support terminating appellant’s medical benefits. 

OWCP subsequently revisited the issue of appellant’s entitlement to wage-loss compensation, but denied 

modification by decision dated April 5, 2012. 
3

On October 27, 2015 the Branch of Hearings and Review issued a decision finding that 

appellant had abandoned his request for a hearing, which had been scheduled for 

October 7, 2015. The decision noted that appellant had been afforded 30-days prior notice of the 

scheduled hearing, which he had failed to attend. The hearing representative further noted that 

there was no indication that appellant contacted the Branch of Hearings and Review either before 

or after the scheduled hearing to explain his absence. 

LEGAL PRECEDENT 

A claimant dissatisfied with a decision on his or her claim is entitled, upon timely 

request, to a hearing before an OWCP representative.4 Unless otherwise directed in writing by 

the claimant, the hearing representative will mail a notice of the time, place and method of the 

oral hearing to the claimant and any representative at least 30 days before the scheduled date.5

 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.7

 The 

“failure of the claimant to request another hearing within 10 days ... shall constitute 

abandonment of the request for a hearing.”8 With the exception of overpayment prerecoupment 

hearings, where it has been determined that a claimant has abandoned his or her right to a 

hearing, the Branch of Hearings and Review will issue a formal decision finding that the 

claimant has abandoned his or her request for a hearing.9

ANALYSIS 

On February 27, 2015 OWCP issued a final decision denying appellant’s claim for a 

schedule award.10 The Branch of Hearings and Review received a timely request for a hearing 

regarding the February 27, 2015 schedule award decision, which it acknowledged by letter dated 

March 6, 2015. Several months later, the Branch of Hearings and Review provided appellant 30-

days advanced written notice of his hearing, which was scheduled for October 7, 2015. OWCP 

mailed the August 27, 2015 notice of hearing to appellant’s address of record, and it has not 

 4

 5 U.S.C. § 8124(b); 20 C.F.R. § 10.616(a) (2014). 

5

 20 C.F.R. § 10.617(b).

6 Id. at § 10.622(f). 

7 Id.

8 Id.

9

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

2.1601.6(g) (October 2011). 

10 As previously noted, the February 27, 2015 merit decision is not currently before the Board. That decision predated appellant’s February 26, 2016 application for review (AB-1) by more than 180 days, and therefore, OWCP’s 

February 27, 2015 decision is not subject to Board review. See 20 C.F.R. § 501.3(e). 
4

since been returned as undeliverable.11 Absent evidence to the contrary, a notice mailed in the 

ordinary course of business is presumed to have been received by the intended recipient.12 This 

presumption is commonly referred to as the “mailbox rule.”13 It arises when the record reflects 

that the notice was properly addressed and duly mailed.14 The current record is devoid of 

evidence to rebut the presumption that appellant received the Branch of Hearings and Review’s 

August 27, 2015 notice of hearing. 

Appellant did not appear for the October 7, 2015 scheduled hearing, and there is no 

indication that he requested postponement of the hearing.15 Moreover, appellant did not submit a 

written request within the 10-day period following the scheduled hearing explaining his absence 

and requesting that another hearing be scheduled.16 The regulations provide that where good 

cause for failure to appear is shown, another hearing will be scheduled and conducted by 

teleconference.17

The record establishes that the Branch of Hearings and Review provided appellant at 

least 30-days advanced written notice of his scheduled hearing. As previously indicated, 

appellant did not request postponement of the hearing, nor did he attend the October 7, 2015 

scheduled hearing. Lastly, appellant did not provide a written explanation for his absence within 

the 10-day period following the previously scheduled hearing. Under the circumstances, the 

hearing representative properly found that appellant abandoned his hearing request. 

CONCLUSION 

The Board finds that appellant abandoned his hearing request before the Branch of 

Hearings and Review. 

 11 The Branch of Hearings and Review also sent a copy of the August 27, 2015 notice of hearing to counsel who 

had filed the March 6, 2015 hearing request. Counsel subsequently advised both OWCP and the Branch of Hearings 

and Review that he no longer represented appellant. He specifically advised the Branch of Hearings and Review 

that he would not be present at the October 7, 2015 hearing. On September 10, 2015 OWCP acknowledged 

Mr. Shapiro’s withdrawal of representation and provided appellant a copy of that letter. 

12 Kenneth E. Harris, 54 ECAB 502, 505 (2003). 

13 Id. 

14 Id. 

15 See 20 C.F.R. § 10.622(c). 

16 Id. at § 10.622(f). 

17 Id.
5

ORDER 

IT IS HEREBY ORDERED THAT the October 27, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 28, 2016 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board