United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.A., Appellant 

and 

DEPARTMENT OF DEFENSE, DEFENSE 

CONTRACT MANAGEMENT AGENCY, 

Fort Riley, KS, Employer 

__________________________________________ 

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Docket No. 17-1036 

Issued: August 23, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 11, 2017 appellant filed a timely appeal from a January 30, 2017 nonmerit 

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

elapsed since the last merit decision dated May 13, 2016 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 over the merits of this case. 

ISSUE 

The issue is whether appellant abandoned his request for an oral hearing before an 

OWCP hearing representative. 

On appeal appellant alleges that he never received a notice informing him that an oral 

hearing had been scheduled. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On February 5, 2016 appellant, then 70 years old, filed an occupational disease claim 

(Form CA-2) alleging that he had contracted lung disease as a result of asbestos exposure during 

his work as an industrial property management specialist for the employing establishment. By 

decision dated May 13, 2016, OWCP denied his claim as he failed to establish fact of injury. 

Specifically, it determined that the evidence was insufficient to establish that the events occurred 

as alleged. OWCP also noted that it had not received any medical evidence in support of 

appellant’s case. 

On May 27, 2016 appellant filed a timely request for an oral hearing before an OWCP 

hearing representative. By letter dated December 5, 2016, OWCP informed him that his 

telephonic hearing would be held on January 12, 2017 at 1:00 p.m. (Eastern Standard Time). 

The notice was mailed to appellant’s last known address. He was provided the toll free 

telephone number to call, as well as an appropriate passcode. However, appellant neither called 

into the hearing at the appointed time, nor contacted OWCP within the requisite 10 days 

thereafter. 

By decision dated January 30, 2017, OWCP determined that appellant had abandoned his 

request for an oral hearing before an OWCP hearing representative. It noted that he was 

properly provided written notice of the hearing 30 days in advance, yet he failed to appear. 

OWCP further noted that appellant failed to contact OWCP either prior to or subsequent to the 

scheduled hearing to explain his failure to appear. 

LEGAL PRECEDENT 

Under FECA and its implementing regulations, a claimant who has received a final 

adverse decision from OWCP may obtain a hearing by writing the address specified in the 

decision within 30 days of the date of the decision for which a hearing is sought.2 Unless 

otherwise directed, in writing by the claimant, OWCP’s 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.3

 OWCP has the burden of proving that it mailed to appellant and his 

representative a notice of a scheduled hearing.4 

A hearing before the Branch of Hearings and Review can be considered abandoned only 

under very limited circumstances.5

 With respect to abandonment of hearing requests, Chapter 

 2

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

3 Id. at 10.617(b). OWCP procedure also provides that notice of a hearing should be mailed to the claimant and 

the claimant’s authorized representative at least 30 days prior to the scheduled hearing. 

4 See Michelle R. Littlejohn, 42 ECAB 463, 465 (1991); see also K.D., Docket No. 11-77 (issued 

August 18, 2011). 

5 Claudia J. Whitten, 52 ECAB 483 (2001). 
3

2.1601(g) of OWCP’s procedures6 and section 10.622(f) of its regulations7 provide in relevant 

part that failure of the claimant to appear at the scheduled hearing, failure to request a 

postponement, and failure to request in writing within 10 days after the date set for the hearing 

that another hearing be scheduled shall constitute abandonment of the request for a hearing. 

Under these circumstances, the Branch of Hearings and Review will issue a formal decision 

finding that the claimant has abandoned his or her request for a hearing and return the case to the 

district office.8

ANALYSIS 

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

request for an oral hearing before an OWCP hearing representative. 

The record establishes that, on December 5, 2016, in response to appellant’s timely 

request for an oral hearing, OWCP’s Branch of Hearing and Review mailed to appellant’s last 

known address, a notice of hearing which was scheduled to be held on January 12, 2017 at 1:00 

p.m. (Eastern Standard Time). The Board notes that the notice was sent more than 30 days prior 

to the scheduled hearing date. As 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.9

 

The record establishes that appellant did not appear at the appointed time. Furthermore, 

he did not request a postponement of the hearing or explain his failure to appear at the hearing 

within 10 days of the scheduled hearing. Thus, the Board finds that appellant abandoned his 

request for an oral hearing before an OWCP hearing representative.10

CONCLUSION 

The Board finds that OWCP properly determined that appellant abandoned his request for 

an oral hearing before an OWCP hearing representative. 

 6

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

2.1601.6(g) (October 2011). 

7

 20 C.F.R. § 10.622(f). 

8 See supra note 6. 

9 See A.J., Docket No. 16-1636 (issued March 27, 2017). 

10 Id. 
4

ORDER 

IT IS HEREBY ORDERED THAT the January 30, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 23, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board