United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Miami, FL, Employer 

__________________________________________ 

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Docket No. 17-0303 

Issued: May 1, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 28, 2016 appellant, through counsel, filed a timely appeal from a 

November 1, 2016 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). As more than 180 days elapsed from the last merit decision dated January 27, 2016 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. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant abandoned her request for a hearing before an OWCP 

hearing representative. 

On appeal counsel contends that neither he nor appellant were provided with a hearing 

notice. 

FACTUAL HISTORY 

OWCP accepted that on September 8, 2004 appellant, then a 42-year-old carrier 

technician, sustained a lumbosacral strain and herniated lumbar disc at L4-L5 and L5-S1 while 

delivering mail on her route at work. Appellant returned to full-time modified-duty work on 

May 18, 2007. 

Appellant stopped work on December 1, 2010 because the employing establishment had 

withdrawn her modified-duty positon on that date due to the National Reassessment Process. 

OWCP paid compensation for total disability commencing on that date.3 

Appellant returned to work in a modified position, following a period of total disability, 

effective December 1, 2011. 

On January 20, 2015 OWCP accepted appellant’s claim for a recurrence of total disability 

effective November 12, 2014. It paid disability compensation for lost hours of work from 

November 12 to 20, 2014. 

On December 10, 2015 appellant claimed 120 hours of wage-loss compensation from 

November 16 to December 4, 2015. 

In a January 27, 2016 decision, OWCP denied appellant’s claim for a recurrence of total 

disability from November 16 to December 4, 2015. 

In a February 1, 2016 letter, appellant, through counsel, requested a telephone hearing 

with an OWCP hearing representative. 

By letter dated September 8, 2016, OWCP notified appellant that a hearing would be held 

on October 12, 2016 at 2:00 p.m. Eastern Standard Time (EST). It instructed her to call the 

provided toll-free number shortly before the scheduled hearing time and enter in a pass code 

when prompted. A copy of the letter was mailed to appellant at her address of record and to 

counsel at his address of record. 

On October 12, 2016 appellant and counsel failed to participate in the telephone hearing. 

 3

 In a June 21, 2012 decision, OWCP found that appellant received an overpayment of compensation in the 

amount of $7,442.36 because she returned to work on December 1, 2011, but received compensation through 

February 11, 2012. It found that she was at fault in creating the overpayment. 
3

By decision dated November 1, 2016, an OWCP hearing representative found that 

appellant had abandoned her request for an oral hearing. She found that appellant received 

written notification of the hearing 30 days in advance, but failed to appear. The hearing 

representative further determined that nothing in the record established that appellant contacted, 

or attempted to contact OWCP before or after the scheduled hearing to explain her failure to 

appear. She concluded that appellant had abandoned her hearing request. A copy of the 

November 1, 2016 decision was mailed to appellant’s address of record and to counsel at his 

address of record. 

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 

A hearing before OWCP’s Branch of Hearings and Review can be considered abandoned 

only under very limited circumstances.7 With respect to abandonment of hearing requests, 

Chapter 2.1601.6(g) of OWCP’s procedures provides 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 her 

request for a telephonic hearing. 

On appeal counsel contends that neither he nor appellant were made aware of the hearing. 

The record establishes that on September 8, 2016, in response to appellant’s timely 

request for an oral hearing, OWCP mailed to appellant and counsel, at their addresses of record, 

 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 also Michelle R. Littlejohn, 42 ECAB 463 (1991). 

7 Claudia J. Whitten, 52 ECAB 483 (2001). 

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

2.1601.6(g) (October 2011); see also 20 C.F.R. § 10.622(f). 
4

a notice of the telephonic hearing. The notice provided that the requested hearing was scheduled 

to be held on October 12, 2016 at 2:00 p.m. EST. 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 Board finds that the properly addressed notice was mailed more than 30 days prior to 

the scheduled hearing date. It provided a toll-free number and a pass code to use at the time of 

the hearing. Appellant did not request a postponement, failed to call in at the scheduled hearing, 

and failed to provide any notification for such failure to OWCP within 10 days of the scheduled 

date of the hearing. As she did not appear and did not comply with OWCP’s requirements 

regarding requesting postponement and/or rescheduling within the allotted time, the Board finds 

that OWCP properly determined that she had abandoned her hearing request. 

CONCLUSION 

The Board finds that appellant abandoned her request for a telephonic hearing before an 

OWCP hearing representative. 

ORDER 

IT IS HEREBY ORDERED THAT the November 1, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 1, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

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