United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.B., Appellant 

and 

U.S. CAPITOL POLICE, Washington, DC, 

Employer 

__________________________________________ 

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Docket No. 16-1274 

Issued: February 13, 2017 

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 June 6, 2016 appellant filed a timely appeal from a March 30, 2016 nonmerit decision 

of the Office of Workers’ Compensation Programs (OWCP).1

 As more than 180 days elapsed 

from the last merit decision dated October 29, 2015, 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. 

ISSUE 

The issue is whether OWCP properly determined that appellant had abandoned her 

request for an oral hearing. 

 1

 Appellant submitted a timely request for oral argument pursuant to 20 C.F.R. § 501.5(b). After exercising its 

discretion pursuant to 20 C.F.R. § 501.5(a), the Board, by an October 21, 2016 order, denied appellant’s request 

because it could adequately address appellant’s contentions based on a review of the case record. Order Denying 

Request for Oral Argument, Docket No. 16-1274 (issued October 21, 2016). 

2

 5 U.S.C. § 8101 et seq.
2

On appeal appellant contends that she did not receive notice of the hearing and that 

OWCP refused to supply the date and time of the hearing when she telephoned to inquire as to 

the status of her hearing request. 

FACTUAL HISTORY 

On September 12, 2015 appellant, then a 40-year-old police officer, filed a traumatic 

injury claim (Form CA-1) alleging that she sustained a right shoulder strain on September 3, 

2015 when she pulled strenuously on a locked door.3 She stopped work on September 3, 2015. 

Dr. John N. Van Dam, an attending family practitioner, followed appellant from 

September 2 to 10, 2015. He noted appellant’s account of injuring her right shoulder at work on 

September 3, 2015 when she pulled down on a locked door. Dr. Van Dam diagnosed a right 

shoulder sprain/strain with possible rotator cuff tear. He held appellant off work from 

September 3 to 18, 2015. 

Dr. Dennis A. Carlini, an attending Board-certified orthopedic surgeon, treated appellant 

beginning on September 17, 2015. He held appellant off work through September 24, 2015, then 

restricted her to limited duty. On September 19, 2015 Dr. Carlini obtained a right shoulder 

arthrogram showing supraspinatus tendinosis with no evidence of a tear, and a normal glenoid 

labrum with no evidence of a SLAP (superior labral tear from anterior to posterior) lesion. He 

diagnosed supraspinatus tendinitis. In an October 19, 2015 report, Dr. Carlini expanded the 

diagnoses to include a rotator cuff tear and SLAP lesion. 

By decision dated October 29, 2015, OWCP denied the claim as causal relationship had 

not been established. It further found that the medical evidence of record failed to support the 

presence of the SLAP lesion and rotator cuff tear as diagnosed by Dr. Carlini because the 

medical diagnoses were not supported by diagnostic testing. 

On November 12, 2015 appellant requested an oral hearing before a hearing 

representative of OWCP’s Branch of Hearings and Review. She also submitted a September 3, 

2015 emergency room report. 

By notice dated February 11, 2016, OWCP’s Branch of Hearings and Review scheduled 

an oral hearing for 10:00 a.m. Eastern Standard Time (EST) on March 15, 2016. It provided 

appellant with the street address and room number for the hearing. OWCP advised appellant that 

postponement of the hearing would only be permitted upon receipt of documentation showing 

her nonelective hospitalization or that the death of a spouse, parent, or child prevented her 

attendance. The notice was mailed to appellant’s address of record. 

On March 15, 2016 appellant failed to attend the hearing. 

 3

 The record contains an authorization for medical treatment (Form CA-16) that was not signed by the employing 

establishment. 
3

By decision dated March 30, 2016, an OWCP hearing representative found that appellant 

had failed to appear at the scheduled oral hearing and had abandoned her request. The hearing 

representative found that there was no evidence that she had contacted OWCP prior to or 

subsequent to the scheduled hearing. By telephone message dated April 4, 2016, appellant 

indicated that the mailing address used to send the notice of oral hearing was correct but she 

never received same. 

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.4 Unless 

otherwise directed in writing by the claims examiner, an OWCP 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.5

 OWCP has the burden of proving that it mailed notice of a 

scheduled hearing to a claimant.6

 Section 10.622(f) of OWCP regulations provide that 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.7 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.8 Where it has been 

determined that a claimant has abandoned his or her right to a hearing, OWCP will issue a formal 

decision finding that the claimant has abandoned his or her request for a hearing.9 

ANALYSIS 

The Board finds that OWCP properly determined that appellant had abandoned her 

request for an oral hearing. 

On appeal appellant contends that she did not receive notice of the hearing. The record 

establishes that on February 11, 2016 in response to appellant’s timely request for an oral 

hearing, the Branch of Hearings and Review mailed to appellant’s known address a notice of the 

telephonic hearing, which was scheduled to be held on March 15, 2016 at 10:00 a.m. EST. As 

 4

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

5

 20 C.F.R. § 10.617(b). 

6 See M.B., Docket No. 10-1077 (issued March 17, 2011). 

7

 20 C.F.R. § 10.622(f). 

8 Id. 

9 See N.L., Docket No. 15-0713 (issued July 14, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Hearings and Reviews of the Written Record, Chapter 2.1601.6(g) (October 2011). 
4

the Board has held, in the absence of evidence to the contrary, a letter properly addressed and 

mailed in the due course of business is presumed to have arrived at the mailing address in due 

course. This is known as the mailbox rule.10 The Board finds that the notice was sent more than 

30 days prior to the scheduled hearing date. The record establishes that appellant did not appear 

at the appointed time. 

On appeal appellant also asserts that OWCP refused to supply the date and time of the 

hearing when she telephoned to inquire as to the status of her hearing request. However, there is 

no evidence of record that appellant ever requested a postponement of the hearing prior to 

March 15, 2016 nor did she explain her failure to appear at the hearing within 10 days of the 

scheduled hearing. Thus, the Board finds that appellant abandoned her request for an oral 

hearing. 

CONCLUSION 

The Board finds that OWCP properly determined that appellant abandoned her request 

for an oral hearing. 

ORDER 

IT IS HEREBY ORDERED THAT the March 30, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 13, 2017 

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 

 10 See R.M., Docket No. 14-1512 (issued October 15, 2014).