United States Department of Labor

Employees’ Compensation Appeals Board

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P.P., Appellant

and

DEPARTMENT OF THE AIR FORCE,

HILL AIR FORCE BASE, UT, Employer

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Docket No. 18-0706

Issued: October 26, 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 February 8, 2018 appellant filed a timely appeal from a November 28, 2017 nonmerit 

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

elapsed from the last merit decision dated May 19, 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 his request for 

an oral hearing before an OWCP hearing representative.

FACTUAL HISTORY

On April 17, 2017 appellant, then a 57-year-old machinist, filed a traumatic injury claim 

(Form CA-1) alleging that on August 14, 2015, while at work, he tore tendons in his right shoulder 

 

1 5 U.S.C. § 8101 et seq. 
2

as he stopped a crane controller from striking his face. He stopped work briefly on the date of 

injury and returned to work on the same day. 

In support of his claim, appellant submitted a Notification of Personnel Action (Form SF50) and the official position description for a machinist. No other evidence was received.

On the reverse side of the claim form, the employing establishment controverted the claim, 

contending that fact of injury had not been established and that the claim was not filed within 30 

days of injury. 

OWCP, by development letter dated April 19, 2017, advised appellant that the evidence 

submitted was insufficient to establish his claim. It informed him of the type of medical and factual 

evidence needed and also advised him that the evidence was insufficient to establish that he timely 

filed his claim. OWCP provided a questionnaire for appellant’s completion. It also requested that 

the employing establishment respond to his allegations and provide medical evidence, if he had 

been treated at its medical facility. OWCP afforded appellant and the employing establishment 30 

days for response to its requests. 

In a memorandum dated April 26, 2017, the employing establishment responded to 

OWCP’s development letter, contending that appellant had not submitted any factual or medical 

evidence to establish a work-related shoulder injury. It restated its prior contention that his claim 

was untimely filed. 

Appellant submitted an April 24, 2017 factual statement in response to OWCP’s 

development letter. He related that, on August 14, 2015, he was in his work area when a coworker 

came up behind him and threw a crane control box over a conduit which was about eight feet above 

him. Appellant further related that he caught the controller just inches from his face. He believed 

that his coworker purposely threw the controller because the coworker and the coworker’s buddy 

were laughing about the incident. Appellant reported his injury to his supervisor who made him 

go to the dispensary. He noted that he had shoulder pain for a week and sought medical treatment. 

Appellant eventually underwent surgery to repair a torn tendon in his shoulder. He claimed that 

he timely reported his injury to his supervisor. Appellant’s supervisor told appellant that he had 

filed a Form CA-1 and not to worry since he had taken care of it. Appellant further claimed that 

he was told that he had three years to file a claim. He indicated that he delayed filing his claim 

due to his surgery. Appellant further indicated that he tried to file a claim one year ago, but was 

unable to log on. He eventually sought help from an individual regarding the filing of his claim.

In a November 2, 2015 medical report, Dr. Eryn A.C. Stansfield, an employing 

establishment physician and family practitioner, noted the date of injury as November 2, 2015 and

related a history of injury as striking against other stationary object, initial encounter. She 

examined appellant and assessed sprain of the right rotator cuff capsule, initial encounter. 

Dr. Stansfield also assessed work-related right shoulder pain with signs of rotator cuff 

impingement and irritation.

By decision dated May 19, 2017, OWCP denied appellant’s traumatic injury claim. It 

found that he established that he was a federal civilian employee who filed a timely claim, but 

denied the claim as the evidence of record was insufficient to establish that the August 14, 2015 
3

incident occurred as alleged. OWCP also found that the medical evidence of record did not contain 

a medical diagnosis in connection with the claimed injury or event(s).

On an appeal request form dated and postmarked May 30, 2017, appellant requested an 

oral hearing before an OWCP hearing representative. On June 5, 2017 OWCP acknowledged 

receipt of the hearing request. 

In an October 5, 2017 letter, a representative of OWCP’s Branch of Hearings and Review 

advised appellant that a telephonic hearing was scheduled for November 16, 2017 at 1:00 p.m. 

Eastern Standard Time (EST).2 The hearing notice included a toll-free number and pass code to 

enable access to the telephonic hearing. The hearing representative advised appellant that 

postponement of the hearing would be permitted only upon receipt showing that his nonelective 

hospitalization or the death of a spouse, parent, or child prevented his attendance. The hearing

notice was mailed to his address of record.

Appellant did not call in on November 16, 2017 at the appointed time of the scheduled 

telephonic hearing. He also did not contact OWCP’s Branch of Hearings and Review within the 

requisite 10 days thereafter. 

By decision dated November 28, 2017, a representative of OWCP’s Branch of Hearings 

and Review found that appellant had abandoned his request for a hearing which had been 

scheduled for November 16, 2017. The hearing representative noted that appellant received a 

written notice of the hearing 30 days before the scheduled hearing, but did not appear and that he 

failed to timely explain his absence from the scheduled hearing.

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.3 Unless otherwise directed in writing by 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.4 

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.5 Where good cause for failure to 

appear is shown, another hearing will be scheduled and conducted by teleconference.6 The “failure 

of the claimant to request another hearing within 10 days shall constitute abandonment of the 

request for a hearing.”

7

 With the exception of overpayment prerecoupment hearings, where it has 

 

2 As appellant resided in a different time zone (Ogden, UT/Mountain Time), OWCP advised him to make certain 

that his local time was adjusted accordingly.

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

4

Id. at § 10.617(b).

5

Id. at § 10.622(f).

6

Id.

7

Id.
4

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.8

ANALYSIS

The Board finds that OWCP properly determined that appellant abandoned his request for 

a hearing before an OWCP hearing representative.

On March 19, 2017 OWCP denied appellant’s traumatic injury claim based upon his failure 

to establish fact of injury. OWCP’s Branch of Hearings and Review received appellant’s May 30, 

2017 timely request for an oral hearing which it acknowledged by letter dated June 5, 2017. By 

letter dated October 5, 2017, the hearing representative with OWCP’s Branch of Hearings and 

Review provided appellant 30 days written notice of his telephonic hearing, which was scheduled 

for November 16, 2017 at 1:00 p.m. EST. OWCP mailed the October 5, 2017 notice of hearing to 

appellant’s address of record. Appellant did not telephone at the appointed time, nor did he request 

postponement of the hearing, or explain his failure to appear at the hearing within 10 days of the 

scheduled hearing date of November 16, 2017.9 

On appeal, appellant contends that he did not receive a letter from OWCP scheduling a 

telephone hearing on November 16, 2017. Under the “mailbox rule,” it is presumed, absent 

evidence to the contrary, that a notice mailed to an individual in the ordinary course of business 

was received by that individual.10 The record supports that OWCP’s letter dated October 5, 2017 

was sent to appellant at the address of record and does not indicate that it was returned as 

undeliverable. The Board finds that he failed to request a postponement of the scheduled hearing, 

failed to appear at the scheduled hearing, and did not provide any notification for such failure 

within 10 days of the scheduled date. Appellant, therefore, abandoned his request for an oral 

hearing.11

CONCLUSION

The Board finds that OWCP properly determined that appellant abandoned his request for 

an oral hearing before an OWCP hearing representative. 

 

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

2.1601.6(g) (October 2011).

9 See 20 C.F.R. § 10.622(c).

10 Kenneth E. Harris, 54 ECAB 502, 505 (2003); A.C. Clyburn, 47 ECAB 153 (1995).

11 P.M., Docket No. 17-1958 (issued May 17, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the November 28, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 26, 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