United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFFICE, 

Springfield, MA, Employer

__________________________________________

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Docket No. 18-0351

Issued: October 1, 2018

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 August 29, 2017 appellant filed a timely appeal from a March 3, 2017 nonmerit 

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

elapsed from the last merit decisions, dated October 26, 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.2

ISSUE

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

a hearing.

 

1 5 U.S.C. § 8101 et seq.

2 The record provided the Board includes evidence received after OWCP issued its March 3, 2017 merit decision. 

The Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision. 

Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. 

§ 501.2(c)(1).
2

FACTUAL HISTORY

On January 30, 2015 appellant, then a 37-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that she injured her hands and knees on January 27, 2015 when she 

slipped and fell on ice while in the performance of duty. She stopped work the next day on 

January 28, 2015, and received continuation of pay. On April 15, 2015 OWCP accepted 

appellant’s claim for bilateral knee abrasion, left wrist sprain, left shoulder sprain, and low back

sprain. For the period March 14 through May 23, 2015, it paid compensation for temporary total 

disability. Thereafter, OWCP compensated appellant for periods of intermittent wage loss through 

September 7, 2015.

After September 7, 2015, appellant again stopped work on October 10, 2015 and 

subsequently filed a claim for compensation (Form CA-7) for temporary total disability through 

November 4, 2015.

Appellant came under the care of Dr. Ashif Jethava, a Board-certified internist, from 

October 28, 2015 to January 27, 2016, for chronic low back pain. Dr. Jethava diagnosed low back 

pain radiating to the right lower extremity, and left hip and left knee pain secondary to chronic 

degenerative joint disease versus a work-related injury. In notes dated October 28 to November 9, 

2015, he indicated that appellant was disabled from work from October 9 to 29, 2015; October 31 

to November 3, 2015; and November 7 to 8, 2015. On January 13, 2016 appellant presented with 

chronic low back pain and reported being off work from January 9 to 12, 2016. 

Appellant also submitted a claim for compensation (Form CA-7) for the period January 9 

to 12, 2016. 

In correspondence dated March 28 and July 1, 2016, OWCP advised appellant of the need 

to submit additional medical evidence to establish her claim for compensation for the periods 

October 10 to November 4, 2015 and January 9 to 12, 2016. 

Dr. Jethava continued to treat appellant for complaints of chronic neck and radicular low 

back pain. In a May 24, 2016 letter, he advised that she was currently under his care due to a 

January 27, 2015 work-related injury. Dr. Jethava further advised that appellant was unable to 

work due to back pain from October 9 to 29, 2015; October 31 to November 3, 2015; November 7 

to 8, 2015; and January 9 to 12, 2016.

In two separate decisions of even date, October 26, 2016, OWCP denied appellant’s claims

for compensation for the periods October 10 to November 4, 2015 and January 9 to 12, 2016.

On November 23, 2016 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review.3

 

3 Appellant indicated her preference for a telephone hearing. 
3

By letter dated November 30, 2016, OWCP acknowledged appellant’s request for an oral 

hearing. The letter also advised appellant of her rights and responsibilities with respect to informal 

hearings under FECA. 

On January 18, 2017 OWCP’s hearing representative notified appellant that a telephone

hearing would be held on February 22, 2017 at 1:45 p .m., Eastern Standard Time. He instructed 

her to call the provided toll-free number shortly before the hearing time and enter the pass code

to gain access to the conference call. OWCP’s hearing representative mailed the January 18, 

2017 notice of hearing to her address of record.4

By decision dated March 3, 2017, OWCP’s hearing representative found that appellant

had abandoned her request for a hearing. He determined that appellant received 30 days advanced 

written notice of the scheduled February 22, 2017 hearing, but failed to appear. The hearing 

representative further noted that there was no indication in the record that appellant contacted 

OWCP either prior or subsequent to the scheduled hearing to explain her failure to appear. Under 

the circumstances, he deemed that appellant abandoned her request for a hearing.

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.5 Unless 

otherwise directed in writing by the claimant, the representative of OWCP’s Branch of Hearings 

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

any representative at least 30 days before the scheduled date.6 OWCP has the burden of proving 

that it mailed notice of a scheduled hearing to the claimant and any representative.7 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 known as the mailbox rule.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 With the exception of overpayment prerecoupment 

 

4 On January 23, 2017 appellant submitted another request for an oral hearing with respect to OWCP decision(s) 

dated October 26, 2016. 

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

6 20 C.F.R. § 10.617(b).

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

8 See James A. Gray, 54 ECAB 277, 280 (2002).

9 20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written 

Record, Chapter 2.1601.6g (October 2011).
4

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

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

claimant has abandoned the request for a hearing.

10

ANALYSIS

In two separate decisions dated October 26, 2016, OWCP denied appellant’s claims for 

compensation for the periods October 10 to November 4, 2015 and January 9 to 12, 2016. 

Appellant timely requested an oral hearing. OWCP acknowledged her request on November 30, 

2016, and in a January 18, 2017 letter, the hearing representative notified her that a telephone 

hearing was scheduled for February 22, 2017 at 1:45 p.m. Eastern Standard Time. However, 

the hearing did not occur as scheduled.

Both, the November 30, 2016 acknowledgment letter and the January 18, 2017 30-day 

prehearing notification, were mailed to appellant’s address of record, and neither 

correspondence was returned to OWCP as undeliverable. Absent evidence to the contrary, a 

letter properly addressed and mailed in the ordinary course of business is presumed to have been 

received.11 Appellant has not submitted any evidence indicating that she did not receive the 

January 18, 2017 hearing notification. As such, a letter properly addressed and mailed in the 

ordinary course of business is presumed to have been received. The presumption arising under 

the mailbox rule, has not been rebutted.

The January 18, 2017 hearing notification included a toll-free number and a pass code 

that appellant was to use in order to access the scheduled February 22, 2017 telephone hearing. 

The hearing did not occur as scheduled. Appellant argued that she was unable to get through to 

call. While she may have experienced difficulty calling in at the appointed time, there is no 

evidence in the record that she timely advised OWCP of her calling difficulties. Also, appellant 

did not submit a written request within 10 days after the February 22, 2017 scheduled hearing 

requesting that another hearing be scheduled. Under the above-noted circumstances, OWCP’s 

hearing representative properly determined that appellant abandoned her request for an oral 

hearing.12

CONCLUSION

The Board finds that appellant abandoned her request for an oral hearing.

 

10 Id. at Chapter 2.1601.6(g).

11 See James A. Gray, supra note 8.

12 See 20 C.F.R. § 10.622(f).
5

ORDER

IT IS HEREBY ORDERED THAT the March 3, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: October 1, 2018

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