United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.C., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

McAllen, TX, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 17-1059 

Issued: August 18, 2017 

Appearances: Case Submitted on the Record

Jonathan Perkins, for the appellant1

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 April 19, 2017 appellant, through his representative, filed a timely appeal from a 

February 21, 2017 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed from the last OWCP merit decision dated May 9, 

2016, 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 over the merits of 

this case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP’s Branch of Hearings and Review properly determined that 

appellant abandoned his request for a hearing. 

FACTUAL HISTORY 

On January 27, 2016 appellant, then a 29-year-old custom and border patrol agent, 

filed a traumatic injury claim (Form CA-1) alleging that on January 26, 2016 he was a 

passenger in an automobile that was involved in a motor vehicle accident, which caused 

whiplash and injuries to his left elbow and low back. He did not immediately stop work. 

Appellant submitted duty status reports (Form CA-17) dated February 1 to 22, 2016 

from Dr. Kesturkoppal Muralidhara, a Board-certified family practitioner, who diagnosed 

lumbar and thoracic strains and advised that appellant could not work. On February 5, 2016 

Dr. Muralidhara treated appellant for low back pain. Appellant reported that on January 26, 

2016 he was a passenger in a work vehicle that was struck on the side by another work vehicle 

while patrolling the border wall. He reported having whiplash and intense stabbing and 

shooting back pain. Dr. Muralidhara diagnosed lumbar disc displacement and thoracic strain. 

He opined that appellant sustained a work-related thoracic and lumbar injury on January 26, 

2016 while he was a passenger in a vehicle that was patrolling the border wall when the 

vehicle he was in was struck by another vehicle. Dr. Muralidhara advised that appellant was 

taken off of work. 

On February 24, 2016 OWCP accepted appellant’s claim for sprain of the ligaments of 

the thoracic spine. 

On March 18 and April 5, 2016 appellant filed claims for compensation, CA-7 forms, 

for leave without pay for the period beginning March 17, 2016. 

Appellant was treated by Dr. Muralidhara on April 6, 2016 for middle and low back 

pain. He reported being a passenger in a work vehicle that was struck by another vehicle while 

patrolling the border wall. Appellant indicated that he experienced whiplash with intense 

stabbing and shooting back pain. Dr. Muralidhara noted a February 2, 2016 magnetic 

resonance imaging (MRI) scan of the thoracic spine revealed a T10-11 broad-based bulge 

effacing the ventral thecal sac. A February 2, 2016 lumbar spine MRI scan revealed L5-S1 

right paracentral disc herniation effacing the ventral thecal sac. Dr. Muralidhara’s diagnoses 

included thoracic disc bulge and lumbar disc herniation secondary to thoracic strain. He 

advised that the work-related trauma caused pain, tenderness, decreased range of motion, 

decreased muscle strength, and difficulty with functional mobility. Dr. Muralidhara opined that 

appellant was incapacitated for work since March 17, 2016 and that this was supported by 

findings and diagnostics. Appellant was currently unable to perform at the physical demand 

level required for his position as a border patrol agent. Dr. Muralidhara advised that appellant’s 

condition has not improved since his injury. 

By decision dated May 9, 2016, OWCP denied appellant’s claim for compensation for 

the period beginning March 17, 2016, because the medical evidence of record failed to establish 

disability from work due to the January 26, 2016 employment injury. 
3

On May 27, 2016 appellant requested a telephone hearing before an OWCP hearing 

representative. He submitted reports from Dr. Muralidhara dated March 7 to May 27, 2016, 

who diagnosed work-related thoracic and lumbar strain and L5-S1 disc herniation. 

Dr. Muralidhara returned appellant to work full time with restrictions. 

On January 9, 2017 OWCP notified appellant and his representative that a telephone 

hearing would be held on February 6, 2017 at 9:00 a .m. (Eastern Standard Time). It 

instructed him 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 January 9, 2017 

notice of hearing to the addresses of record for both appellant and his representative. 

By decision dated February 21, 2017, OWCP found that appellant had abandoned his 

request for a hearing. It determined that he 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 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 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.4 OWCP has the burden of proving that it mailed the 

claimant a notice of the date and time of the scheduled hearing.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. 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.6

 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.7 

 3

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

4

 20 C.F.R. § 10.617(b). 

5 Nelson R. Hubbard, 54 ECAB 156, 157 (2002). 

6

 20 C.F.R. § 10.622(c). 

7

 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(f). 
4

ANALYSIS 

The applicable regulations require OWCP to provide at least 30 days advance written 

notice of the scheduled hearing date.8 The January 9, 2017 hearing notification indicated that a 

telephonic hearing was scheduled for February 6, 2017, which was less than 30 days from the 

date of the notice. The Branch of Hearings and Review did not provide appellant at least 30 days 

advance notice as mandated. Because the January 9, 2017 hearing notification was insufficient, 

the February 21, 2017 decision is set aside and the case is remanded to the Branch of Hearings 

and Review in order to schedule another oral hearing.9 

CONCLUSION 

The Board finds that OWCP’s Branch of Hearings and Review improperly found that 

appellant abandoned his requested hearing. 

ORDER 

IT IS HEREBY ORDERED THAT the February 21, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action 

consistent with this decision. 

Issued: August 18, 2017 

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 

 8

 20 C.F.R. § 10.617(b). 

9 See R.E., Docket No. 09-2247 (issued May 11, 2010).