United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.D., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Columbia, MO, Employer 

__________________________________________ 

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Docket No. 16-0316 

Issued: April 13, 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 December 8, 2015 appellant filed a timely appeal from a November 13, 2015 nonmerit 

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

elapsed between OWCP’s underlying March 6, 2015 merit decision and 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 appellant’s claim.2

ISSUE 

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

request for a hearing with an OWCP hearing representative. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The record contains an August 25, 2015 OWCP decision denying appellant’s claim for a short period of 

disability, but she has not appealed this decision to the Board. Appellant also requested a hearing with an OWCP 

hearing representative in connection with that decision, but a hearing had not yet been held at the time she filed her 

appeal with the Board on December 8, 2015. 
2

FACTUAL HISTORY 

On November 19, 2010 appellant, then a 40-year-old practical nurse, filed a traumatic 

injury claim (Form CA-1) alleging that she sustained an injury on October 25, 2010 when she 

was trying to catch a patient who fell forward from a standing position. OWCP accepted 

appellant’s claim for closed right clavicle fracture, right shoulder and upper arm contusions and 

sprains, right superior glenoid labrum lesion, and displacement of cervical intervertebral disc 

without myelopathy.3

On June 26, 2014 appellant filed a claim for a schedule award (Form CA-7). 

By decision dated March 6, 2015, OWCP granted appellant a schedule award for 12 

percent permanent impairment of her right upper extremity. The award ran for 37.44 weeks 

from November 11, 2014 to July 31, 2015. 

In a letter dated March 12, 2015, appellant, through her counsel at the time, requested a 

telephonic hearing with an OWCP hearing representative regarding the March 6, 2015 schedule 

award decision. 

In an August 19, 2015 letter, OWCP’s Branch of Hearings and Review notified appellant 

that it had scheduled a telephone hearing for October 5, 2015 at 10:00 a.m. Eastern Standard 

Time. Appellant was provided a toll-free number to use to appear at the scheduled hearing. She 

was advised regarding the procedures for rescheduling a hearing.4

OWCP indicated that there was no evidence in the file that she had contacted OWCP 

either prior or subsequent to the scheduled hearing to explain her failure to appear at the 

scheduled hearing.5

By decision dated November 13, 2015, OWCP determined that appellant had abandoned 

her March 2015 request for a hearing with an OWCP hearing representative. It noted that 

appellant had been properly notified of the telephonic hearing scheduled for October 5, 2015, but 

that she had failed to appear on that date. 

LEGAL PRECEDENT 

A claimant who has received a final adverse decision by OWCP may obtain a hearing by 

writing to the address specified in the decision within 30 days of the date of the decision for 

which a hearing is sought.6

 Unless otherwise directed in writing by the claimant, the hearing 

 3

 Appellant received disability compensation on the daily rolls beginning August 15, 2011. 

4

 OWCP sent the notice to the addresses of record for appellant, her counsel at that time, and the employing 

establishment. 

5

 In an August 25, 2015 decision, OWCP denied appellant’s claim for employment-related disability on June 15 

and 16, 2015. In a letter dated August 31, 2015, appellant, through her counsel at the time, requested a telephonic 

hearing with an OWCP hearing representative regarding the August 25, 2015 disability decision. The matter is not 

the subject of the present appeal. See supra note 2. 

6

 20 C.F.R. § 10.616(a). 
3

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.7 OWCP has the burden of proving that 

it properly mailed to appellant and her representative a notice of a scheduled hearing.8 

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.9

ANALYSIS 

Following OWCP’s March 6, 2015 decision granting appellant a schedule award for her 

right upper extremity, she filed a timely request for an oral hearing with an OWCP hearing 

representative. In an August 19, 2015 letter, OWCP’s Branch of Hearings and Review notified 

her that it had scheduled a telephone hearing for October 5, 2015 at 10:00 a.m. Eastern Standard 

Time. OWCP properly sent the notice to appellant’s address of record. Appellant was provided 

a toll-free number to use to appear at the scheduled hearing.10 She failed to appear at the 

scheduled hearing. She did not request a postponement or provide any explanation to OWCP for 

her failure to attend the hearing within 10 days of the scheduled hearing. As appellant did not 

request a postponement, did not appear at the scheduled hearing, and did not provide any 

notification to the Branch of Hearings and Review within 10 days of the scheduled hearing 

explaining her failure to appear, the Board finds that she abandoned her request for a hearing.11

On appeal appellant contends that she was not able to appear at the scheduled telephone 

hearing due to an emergency illness. There is no evidence, however, that she provided this 

information to OWCP within 10 days of the scheduled hearing. 

CONCLUSION 

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

request for a hearing with an OWCP hearing representative. 

 7 Id. at § 10.617(b). 

8 T.P., Docket No. 15-0806 (issued September 11, 2015). 

9

 20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the 

Written Record, Chapter 2.1601.6(g) (October 2011). 

10 Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is 

presumed to have been received. This is called the mailbox rule. See James A. Gray, 54 ECAB 277 (2002). OWCP 

also sent the notice to the addresses of record for appellant’s counsel at that time and the employing establishment. 

11 See 20 C.F.R. § 10.622(f); see also R.S., Docket No. 15-1358 (issued December 4, 2015). 
4

ORDER 

IT IS HEREBY ORDERED THAT the November 13, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 13, 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