United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Greensboro, NC, Employer 

__________________________________________ 

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Docket No. 16-1351 

Issued: March 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 14, 2016 appellant filed a timely appeal from a January 19, 2016 nonmerit 

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

elapsed from the last merit decision dated May 4, 2015, 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.2

ISSUE 

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

for an oral hearing. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted additional evidence to OWCP after the January 19, 2016 decision was 

issued. Appellant also advised that she misunderstood that she was suppose to call for the scheduled telephone 

hearing as she thought the hearing representative was going to call her. The Board’s jurisdiction is limited to 

reviewing the evidence that was before OWCP at the time of its final decision. Therefore, the Board lacks 

jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

Appellant, a 44-year-old rural carrier, filed an occupational disease claim (Form CA-2) 

alleging that she developed right shoulder pain as a result of lifting and repetitive movements in 

the performance of duty. 

By decision dated May 4, 2015, OWCP denied appellant’s claim as the evidence failed to 

establish fact of injury. 

On May 19, 2015 appellant requested an oral hearing before a representative of the 

Branch of Hearings and Review. 

In a November 19, 2015 notice, OWCP’s Branch of Hearings and Review scheduled an 

oral hearing for 2:15 p.m. Eastern Standard Time on January 4, 2016. It provided appellant with 

a toll free number and pass code for the telephone hearing. OWCP instructed her to “call the toll 

free number listed below and when prompted, enter the pass code also listed below.” It 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. No 

request for postponement of the hearing was made. 

On January 4, 2016 appellant failed to participate in the telephone hearing. She did not 

explain her failure to call in within 10 days of the scheduled hearing. 

By decision dated January 19, 2016, an OWCP hearing representative found that 

appellant had failed to appear at the oral hearing and had abandoned her request. She found that 

there was no evidence that she had contacted OWCP either prior to or subsequent to the 

scheduled hearing to explain her failure to appear. 

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.3 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.4

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

scheduled hearing to a claimant.5

 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.6

 Where good cause for failure to 

 3

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

4

 20 C.F.R. § 10.617(b). 

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

6

 20 C.F.R. § 10.622(f). 
3

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.7 Where it has been 

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

decision finding that the claimant has abandoned her request for a hearing.8

ANALYSIS 

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

for an oral hearing. 

The record establishes that on November 19, 2015, in response to appellant’s timely 

request for an oral hearing, the Branch of Hearings and Review mailed an appropriate notice of 

the scheduled hearing to be held on January 4, 2016 at 2:15 p.m. Eastern Standard Time by 

telephone. The hearing notice was properly mailed to appellant’s last known address of record. 

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 Board finds that the notice was sent more than 

30 days prior to the scheduled hearing date of January 4, 2016. The record establishes that 

appellant did not appear at the appointed time. Further, she did not request a postponement of 

the hearing prior to January 4, 2016 or 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. 

 7 Id. 

8 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). 

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

IT IS HEREBY ORDERED THAT the January 19, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 13, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board