United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.W., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, HILL 

AIR FORCE BASE, UT, Employer 

__________________________________________ 

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Docket No. 15-0590 

Issued: July 27, 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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 23, 2015 appellant filed a timely appeal from the December 19, 2014 

nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Since more than 

180 days elapsed between the last merit decision on October 17, 2013 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 appellant timely requested a hearing before an OWCP hearing 

representative. 

FACTUAL HISTORY 

On June 13, 2013 appellant, a 69-year-old industrial engineering technician, filed an 

occupational disease claim (Form CA-2) alleging that his foot problems were the result of the 

 1

 5 U.S.C. § 8101 et seq.
2

generic safety boots he was required to wear while working in machine areas on cement floors. 

The employing establishment challenged the claim asserting that it was untimely filed. 

In a decision dated October 17, 2013, OWCP denied appellant’s claim finding that it was 

untimely filed. Appeal rights attached to this decision notified appellant that any hearing request 

must be made in writing within 30 calendar days after the date of the decision, as determined by 

the postmark of his letter. OWCP mailed the decision to his address of record. 

On August 7, 2014 appellant called OWCP for a copy of the denial letter. On August 12, 

2014 the employing establishment notified OWCP that it had not received a copy of the denial 

letter either. It asked if the denial date could be reset due to nonreceipt. 

Appellant completed and signed the appeal request form on October 5, 2014 and the form 

was received by OWCP on October 16, 2014. He indicated that he was requesting an oral 

hearing before an OWCP hearing representative. Appellant’s request was postmarked 

October 6, 2014. He explained that he never received the denial letter until August 2014. 

In a decision dated December 19, 2014, OWCP denied appellant’s request for a hearing. 

As his October 5, 2014 request was not made within 30 days of the October 17, 2013 decision, it 

found that he was not entitled to a hearing as a matter of right. OWCP denied a discretionary 

hearing finding that the issue in appellant’s case could be addressed equally well by requesting 

reconsideration and submitting evidence not previously considered establishing that his claim for 

compensation was filed in a timely manner. 

On appeal, appellant argues that he received the October 17, 2013 decision 10 months 

later, in August 2014, at which time he also received appeal rights dated March 13, 2014. He 

argues that the postmarks on the receipt of these letters demonstrated the delay relative to the 

letter dates.2

 Appellant adds that he was never informed of his right to file a claim, nor was he 

given any information as to time frames for filing. 

LEGAL PRECEDENT 

Section 8124(b)(1) of FECA provides: 

“Before review under section 8128(a) of this title, a claimant for compensation not 

satisfied with a decision of the Secretary under subsection (a) of this section is 

entitled, on request made within 30 days after the date of the issuance of the 

decision, to a hearing on his claim before a representative of the Secretary.”3

The hearing request must be sent within 30 days (as determined by postmark or other 

carrier’s date marking) of the date of the decision for which a hearing is sought.4

 OWCP has 

 2

 On August 7, 2014 appellant asked for a copy of the October 17, 2013 denial letter. OWCP promptly sent him 

one and when the employing establishment indicated on August 12, 2014 that it had also not received the decision, 

OWCP again mailed copies. 

3

 5 U.S.C. § 8124(b)(1). 

4

 20 C.F.R. § 10.616(a). 
3

discretion to grant or deny a request that is made after this 30-day period.5

 In such a case it will 

determine whether a discretionary hearing should be granted or, if not, will so advise the claimant 

with reasons.6

ANALYSIS 

In its December 19, 2014 decision, OWCP found that appellant was not entitled to a 

hearing as a matter of right because his October 5, 2014 request was not made within 30 days of 

the October 17, 2013 decision denying his claim. Appellant argued, however, that he did not 

receive the October 17, 2013 decision until August 2014, when the appeal rights had already 

expired. 

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. The 

appearance of a properly addressed copy in the case record, together with the mailing custom or 

practice of OWCP itself, will raise the presumption that the original was received by the addressee.7

OWCP maintains the ultimate burden of proof that it properly mailed the notice to the 

claimant. The presumption that arises from a properly addressed and duly mailed notice is a

rebuttable presumption, one that is based on circumstantial evidence, and one that places on the 

claimant the burden of producing any evidence that he or she did not receive the notice. 

OWCP’s October 17, 2013 decision denying appellant’s claim was properly addressed. 

Under the Mailbox Rule, it is presumed that he received it. However, this is a rebuttable 

presumption. The presumption is one that will disappear in light of any evidence that supports 

that he did not receive the correspondence. 

On August 12, 2014 the employing establishment advised OWCP that it had also not 

received a copy of the October 17, 2013 decision. It would thus appear that neither of the parties 

to whom OWCP supposedly mailed the decision actually received the intended notice. The 

question before the Board is whether evidence of nonreceipt by the employing establishment is 

sufficient, in conjunction with appellant’s own assertion of nonreceipt, to rebut the presumption 

that arose from the Mailbox Rule. 

The Board finds that the evidence of concurrent nonreceipt by a party other than the 

claimant has a tendency to make the claimant’s assertion of nonreceipt more probable than it 

would be without the evidence. In other words, this evidence tends to support appellant’s

assertion that he did not receive the October 17, 2013 decision. A mere presumption of receipt 

follows logically from the fact that a properly addressed and properly mailed notice usually 

reaches its intended audience, but it must also be acknowledged that such mail, for whatever 

reason, is not always delivered. 

 5 Herbert C. Holley, 33 ECAB 140 (1981). 

6 Rudolph Bermann, 26 ECAB 354 (1975). 

7 See Larry L. Hill, 42 ECAB 596 (1991). See generally Annotation, Proof of Mailing by Evidence of Business or 

Office Custom, 45 A.L.R. 4th 476, 481 (1986). 
4

When multiple addressees attest that they never received the notice in question, there can 

be some doubt whether the notice was delivered. There may be some question whether the

notice was ever properly mailed, a fact that is not established by evidence in these cases, but only 

assumed from the mailing custom or practice of OWCP. Under such circumstances, the 

presumption of receipt cannot survive. 

The Board finds that appellant has met his burden of producing evidence that supports he 

did not receive the October 17, 2013 decision. The presumption of receipt under the Mailbox 

Rule is therefore rebutted. 

The Board will set aside OWCP’s December 19, 2014 decision denying a hearing and will 

remand the case for a de novo decision, properly issued, on appellant’s June 13, 2013 occupational 

disease claim. OWCP shall afford him full appeal rights. 

CONCLUSION 

The Board finds that this case is not in posture for decision. Further action by OWCP is 

warranted. 

ORDER 

IT IS HEREBY ORDERED THAT the December 19, 2014 decision of the Office of 

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

Issued: July 27, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board