United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Jackson, GA, Employer 

__________________________________________ 

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Docket No. 15-0941 

Issued: September 13, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

On March 24, 2015 appellant filed an application for review of a March 3, 2015 decision 

the Office of Workers’ Compensation Programs (OWCP) which found that he had abandoned his 

request for an oral hearing. The appeal was docketed as No. 15-0941. 

The Board has duly considered the matter and finds that the case is not in posture for a 

decision and must be remanded to OWCP. On July 14, 2014 OWCP denied appellant’s claim for 

an emotional condition. On August 8, 2014 appellant requested an oral hearing received by 

OWCP on August 13, 2014. By letter dated January 8, 2015, OWCP advised him that a 

telephonic oral hearing was scheduled for 10:00 a.m. on February 10, 2015. However, on 

January 26, 2015, its January 8, 2015 letter was returned as undeliverable. By decision dated 

March 3, 2015, OWCP found that appellant had abandoned his request for an oral hearing, as he 

failed to appear for the hearing, and that there was no indication in the file that he had contacted 

OWCP either prior or subsequent to the scheduled hearing to explain his failure to appear. On 

appeal, appellant contends that he did not receive notice of the oral hearing. 

Section 10.617(b) of OWCP’s regulations require OWCP to mail a notice of the time and 

place of the hearing to appellant at least 30 days before the scheduled date.1

 OWCP has the 

 1

 20 C.F.R. § 10.617(b). Under the Federal Employees’ Compensation Act 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. 5 U.S.C. 

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

burden of proving that it mailed a notice of a scheduled hearing to appellant.2

 Under the mailbox 

rule, it is presumed, in the absence of evidence to the contrary, that a notice mailed to an 

individual in the ordinary course of business was received by that individual. This presumption 

arises when it appears from the record that the notice was properly addressed and duly mailed.3

 

However, as a rebuttable presumption, receipt will not be assumed when there is evidence of 

nondelivery.4

 On January 18, 2015 OWCP’s January 8, 2015 letter advising appellant of the date 

and time of the telephonic oral hearing was returned as undeliverable. Thus, the Board finds that 

the mailbox rule does not apply and that OWCP did not provide appellant sufficient notice of the 

scheduled telephonic hearing.5

 For this reason, the case will be remanded to OWCP for 

scheduling of another hearing before an OWCP hearing representative with proper notice 

provided to all parties. Following this and any necessary further development, OWCP shall issue 

an appropriate decision. Accordingly, 

IT IS HEREBY ORDERED THAT the March 3, 2015 decision of the Office of 

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

action consistent with this order of the Board. 

Issued: September 13, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

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

3 See Michelle Lagana, 52 ECAB 187 (2000). 

4 See M.C., Docket No. 15-0479 (issued April 21, 2015); C.O., Docket No. 10-1796 (issued March 23, 2011); 

M.U., Docket No. 09-0526 (issued September 14, 2009). 

5 Id.