United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.W., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS AFFAIRS MEDICAL CENTER, 

Seattle, WA, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 18-0509

Issued: October 3, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 16, 2018 appellant filed a timely appeal from an October 31, 2017 nonmerit 

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

elapsed from the last merit decision dated April 3, 2017, 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 to review the merits of this case.

ISSUE

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

a telephone hearing before an OWCP hearing representative.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On January 4, 2017 appellant, then a 38-year-old dental hygienist, filed an occupational 

disease claim (Form CA-2) alleging that she sustained bilateral carpal tunnel syndrome causally 

related to factors of her federal employment. She indicated that she performed modified work 

duties after reporting the claim on January 4, 2017.

By decision dated April 3, 2017, OWCP denied appellant’s occupational disease claim. It 

found that the medical evidence submitted was insufficient to establish that she sustained a 

diagnosed condition causally related to the accepted work factors.

Appellant, on April 18, 2017, requested an oral hearing before an OWCP hearing 

representative. On August 10, 2017 OWCP determined that, based on her geographical location 

and the issue involved, it would conduct her oral hearing by telephone. It advised appellant that it 

had scheduled her telephone hearing for September 12, 2017 at 12:15 p.m. Eastern Standard Time 

(EST). 

OWCP noted that appellant had a new address and by letter dated September 19, 2017, it

informed her that it had scheduled a telephone hearing for October 16, 2017 at 2:45 p.m. EST. 

OWCP, in a September 20, 2017 letter, again notified appellant that it had scheduled her 

telephone hearing for October 16, 2017 at 2:45 p.m. EST. In another September 20, 2017 letter, 

it advised her that it had rescheduled the telephone hearing from October 16 to 20, 2017 at 11:00 

a.m. EST. The hearing notice included a toll-free number and pass code to enable access to the 

telephone hearing. 

On October 2, 2017 OWCP informed appellant that it had changed the time for the 

telephone hearing set for October 20, 2017 from 11:00 a.m. to 12:15 p.m. EST to allow for the 

time difference between Washington, DC and her geographical location. 

An October 20, 2017 telephone memorandum (Form CA-110) indicated that appellant 

telephoned OWCP on that date. OWCP advised that it had sent notice of her rescheduled hearing 

to her new address and changed the time to 12:15 p.m. EST. It noted that appellant did not 

telephone for the scheduled hearing at 12:15 p.m. EST.

By decision dated October 31, 2017, OWCP determined that appellant had abandoned her 

request for a telephone hearing before an OWCP hearing representative. It found that she had 

received written notice of the telephone hearing 30 days before the scheduled hearing, but that she 

failed to attend or contact the Branch of Hearings and Review either before or after the scheduled 

hearing to explain her absence.

On appeal appellant contends that she now has medical evidence supporting her claim and 

notes that her physician has diagnosed additional employment-related conditions.

LEGAL PRECEDENT

Under FECA and its implementing regulations, a claimant who has received a final adverse 

decision from OWCP may obtain a hearing by writing the address specified in the decision within 
3

30 days of the date of the decision for which a hearing is sought.2 Unless otherwise directed, in 

writing by the claimant, OWCP’s 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.3 

OWCP has the burden of proving that it mailed to appellant and his or her representative a notice 

of a scheduled hearing.4

A hearing before the Branch of Hearings and Review can be considered abandoned only 

under very limited circumstances.5 With respect to abandonment of hearing requests, Chapter 

2.1601(g) of OWCP’s procedures6and section 10.622(f) of its regulations7 provide 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 improperly determined that appellant abandoned her request 

for a telephone hearing before an OWCP hearing representative. 

OWCP, in response to appellant’s timely request for an oral hearing, initially advised her 

on August 10, 2017 that it had scheduled a telephone hearing for September 12, 2017 at 12:15 p.m. 

EST. On September 19, 2017 it noted that she had a new mailing address and informed her that it 

had scheduled a telephone hearing for October 16, 2017 at 2:45 p.m. EST. On September 20, 2017 

OWCP again mailed appellant a notice that it had scheduled a telephone hearing on October 16, 

2017 at 2:45 p.m. EST. In another letter dated September 20, 2017, it advised her that it had 

rescheduled the telephone hearing to October 20, 2017 at 11:00 a.m. EST. By letter dated 

October 2, 2017, OWCP informed appellant that it had rescheduled the time for the October 20, 

2017 telephone hearing from 11:00 a.m. to 12:15 p.m. EST. 

OWCP’s regulations provide that it must mail appellant a notice of the time, place, and 

method of hearing at least 30 days prior to the scheduled hearing unless otherwise directed by the 

 

2 5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

3

Id. at § 10.617(b). OWCP procedure also provides that notice of a hearing should be mailed to the claimant and 

the claimant’s authorized representative at least 30 days prior to the scheduled hearing. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter 2.1601.6(b) (October 2011).

4 See Michelle R. Littlejohn, 42 ECAB 463, 465 (1991); see also K.D., Docket No. 11-0077 (issued 

August 18, 2011).

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

6 Federal (FECA) Procedure Manual, supra note 3 at Chapter 2.1601.6(g) (October 2011).

7 20 C.F.R. § 10.622(f).

8 See supra note 6.
4

claimant.9 Its procedures provide that it must send a written notice “specifying the exact date, 

time, format, and place for the hearing” at least 30 days before the scheduled hearing.10 OWCP, 

however, did not provide appellant with written notice of the exact time of the October 20, 2016 

telephone hearing scheduled until October 2, 2017, less than the required 30 days. As it did not 

comply with its procedures, the Board finds that it improperly determined that appellant abandoned 

her hearing request and the case will be remanded to the Branch of Hearings and Review to 

schedule another hearing.11 

CONCLUSION

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

for a telephone hearing before an OWCP hearing representative.

ORDER

IT IS HEREBY ORDERED THAT the October 31, 2017 decision of the Office of 

Workers’ Compensations Programs is set aside and the case is remanded for further action 

consistent with this decision of the Board.

Issued: October 3, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

9 20 C.F.R. § 10.617(b).

10 See Federal (FECA) Procedure Manual, supra note 3 at Chapter 2.1601.6(b); see also T.C., Docket No. 17-1059 

(issued August 18, 2017).

11 Id. Additionally, it appears from the record that appellant contacted OWCP on October 20, 2016, the date of the 

hearing.