United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Denver, CO, Employer 

__________________________________________ 

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Docket No. 16-0412 

Issued: September 25, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 4, 2016 appellant filed a timely appeal from a November 4, 2015 nonmerit 

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

 As more than 180 days 

elapsed from OWCP’s latest merit decision, dated November 28, 2014, 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 to review the merits of this case. 

ISSUE 

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

for an oral hearing. 

 1

 Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). By order dated November 4, 2016, the Board exercised its discretion and denied the request as 

appellant’s arguments on appeal could be adequately addressed in a decision based on a review of the case as 

submitted on the record. Order Denying Request for Oral Argument, Docket No. 16-0412 (issued 

November 4, 2016). 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On September 6, 2014 appellant, then a 51-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on September 2, 2014 she injured her left knee in the 

performance of duty. She indicated that the injury or condition occurred from going up and 

down stairs. As the employing establishment did not controvert continuation of pay (COP) or 

challenge the merits of the case, payment of a limited amount of medical expenses was 

administratively approved. Once appellant’s medical bills exceeded $1,500.00, OWCP reopened 

the claim for consideration of the merits. 

By decision dated November 28, 2014, OWCP denied the claim as fact of injury had not 

been established. It found the evidence was insufficient to establish that the event(s) occurred as 

described. OWCP also found that appellant did not submit any medical evidence to establish 

that a diagnosed medical condition was causally related to the work injury or event. 

In an appeal request form dated March 6, 2015, appellant requested a telephonic oral 

hearing before a hearing representative of the Branch of Hearings and Review. On March 10, 

2015 OWCP acknowledged receipt of the hearing request. 

In a September 9, 2015 letter, OWCP’s Branch of Hearings and Review advised 

appellant that a hearing was scheduled for October 15, 2015 at 11:15 a.m. Eastern Time.3

 The 

hearing notice included a toll-free number and pass code to enable access to the telephonic 

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. It mailed the hearing notice to appellant’s 

then-current address of record.4 However, appellant failed to participate in the scheduled 

telephone hearing. 

On November 4, 2015 a representative of the Branch of Hearings and Review issued a 

decision finding that appellant abandoned her request for a hearing, which had been scheduled 

for October 15, 2015. The hearing representative noted that appellant had been afforded 30-days 

prior notice of the scheduled hearing, which she failed to attend. The hearing representative 

further noted that there was no indication that appellant contacted the Branch of Hearings and 

Review either before or after the scheduled hearing to explain her absence. 

LEGAL PRECEDENT 

A claimant dissatisfied with a decision on his or her claim is entitled, upon timely 

request, to a hearing before an OWCP representative.5 Unless otherwise directed in writing by 

 3

 As appellant resided in a different time zone (Denver, CO/Mountain Time), OWCP advised her to make certain 

that her local time was adjusted accordingly. 

4

 After the November 28, 2014 decision was twice returned as undeliverable because appellant “moved [and] left 

no [forwarding] address,” appellant advised OWCP of her change of address on February 13, 2015. By letter dated 

February 20, 2015, OWCP acknowledged receipt of appellant’s change of address request. 

5

 5 U.S.C. § 8124(b); 20 C.F.R. § 10.616(a). 
3

the claimant, the hearing representative will mail a notice of the time, place, and method of the 

oral hearing to the claimant and any representative at least 30 days before the scheduled date.6 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.8

 The 

“failure of the claimant to request another hearing within 10 days ... shall constitute 

abandonment of the request for a hearing.”9

 With the exception of overpayment prerecoupment 

hearings, where it has been determined that a claimant has abandoned his or her right to a 

hearing, the Branch of Hearings and Review will issue a formal decision finding that the 

claimant has abandoned his or her request for a hearing.10

ANALYSIS 

On November 28, 2014 OWCP issued a final decision denying appellant’s traumatic 

injury claim based upon her failure to establish fact of injury.11 The Branch of Hearings and 

Review received a request for an oral hearing, which it acknowledged by letter dated 

March 10, 2015. By September 9, 2015 letter, the Branch of Hearings and Review provided 

appellant 30-days advanced written notice of her hearing, which was scheduled for 

October 15, 2015. OWCP mailed the September 9, 2015 notice of hearing to appellant’s thencurrent address of record, and it has not since been returned as undeliverable.12 Absent evidence 

to the contrary, a notice mailed in the ordinary course of business is presumed to have been 

received by the intended recipient.13 This presumption is commonly referred to as the “mailbox 

rule.”14 It arises when the record reflects that the notice was properly addressed and duly 

mailed.15 The current record is devoid of evidence to rebut the presumption that appellant 

received the Branch of Hearings and Review’s September 9, 2015 notice of hearing. 

 6

 20 C.F.R. § 10.617(b).

7 Id. at § 10.622(f). 

8 Id.

9 Id.

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

2.1601.6(g) (October 2011). 

11 As previously noted, the November 28, 2014 merit decision is not currently before the Board. That decision 

predated appellant’s January 4, 2016 application for review (AB-1) by more than 180 days, and therefore, OWCP’s 

November 28, 2014 decision is not subject to Board review. See 20 C.F.R. § 501.3(e). 

12 See supra note 4. 

13 Kenneth E. Harris, 54 ECAB 502, 505 (2003). 

14 Id. 

15 Id. 
4

Appellant did not appear for the October 15, 2015 scheduled hearing, and there is no 

indication that she requested postponement of the hearing.16 Moreover, she did not submit a 

written request within the 10-day period following the scheduled hearing explaining her absence 

and requesting that another hearing be scheduled.17 The regulations provide that where good 

cause for failure to appear is shown, another hearing will be scheduled and conducted by 

teleconference.18

On appeal appellant argued that she called in to the October 15, 2015 scheduled hearing 

“a minute or [two] late,” and no one answered the telephone. However, she did not advise 

OWCP in writing of these circumstances within 10 days after the date set for the hearing, and 

request that another hearing be scheduled. Appellant also contended on appeal that OWCP owed 

her back pay for the September 2, 2014 alleged injury. As noted, the Board lacks jurisdiction 

over the merits of the case.19

The record establishes that the Branch of Hearings and Review provided appellant at 

least 30-days advanced written notice of her scheduled hearing. Appellant did not request 

postponement of the hearing, nor did she attend the October 15, 2015 scheduled hearing. Lastly, 

appellant did not provide a written explanation for her absence within the 10-day period 

following the scheduled hearing. Under the circumstances, the hearing representative properly 

found that appellant abandoned her hearing request. 

CONCLUSION 

The Board finds that appellant abandoned her hearing request. 

 16 See 20 C.F.R. § 10.622(c). 

17 Id. at § 10.622(f). 

18 Id.

19 See supra note 11. 
5

ORDER 

IT IS HEREBY ORDERED THAT the November 4, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 25, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy 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