United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.F., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Franklin Square, NY, Employer 

__________________________________________ 

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Docket No. 16-1873 

Issued: February 9, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 22, 2016 appellant filed a timely appeal from a September 13, 20161

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

180 days elapsed between the last merit decision of OWCP dated January 7, 2016, 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 appellant abandoned her request for a telephone hearing before 

OWCP’s Branch of Hearings and Review. 

On appeal appellant explained that her absence from the hearing was due to a medical 

problem. 

 1

 Appellant stated that she was appealing an August 30, 2016 OWCP decision. The Board notes, however, that 

the record does not contain an adverse final decision issued by OWCP on that date. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On February 14, 2014 appellant, then a 45-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she fell and injured her right wrist at work on that date. She 

stopped work on the date of injury, returned to work on February 19, 2014, and stopped work 

again on February 24, 2014. 

On March 26, 2014 OWCP accepted appellant’s claim for right wrist sprain. On June 4, 

2014 it expanded the acceptance of the claim to include sprain of unspecified sites of the right 

knee and right leg and paid wage-loss compensation beginning on that date. 

On July 13, 2015 OWCP mailed appellant a Form EN1032 to include any earnings from 

employment in the past 15 months and/or any monetary or in-kind compensation for 

volunteering. The form was sent to appellant’s last known address. The letter accompanying the 

form specifically advised that appellant’s benefits would be suspended if she failed to return the 

form within 30 days pursuant to 20 C.F.R. § 10.528. Appellant did not return the form within 

the time allotted. 

In a January 7, 2016 decision, OWCP suspended appellant’s wage-loss compensation 

benefits effective January 9, 2016 due to her failure to submit a completed Form EN1032.3 The 

decision notified appellant that, if she completed and returned the Form EN1032, her benefits 

would be restored, retroactive to the date of their suspension. The decision was sent to 

appellant’s correct address. 

On January 14, 2016 appellant requested a telephone hearing with an OWCP hearing 

representative. The Chief of OWCP’s Branch of Hearings and Review wrote to appellant on 

January 14, 2016 acknowledging receipt of the hearing request. The letter was mailed to her 

correct address. 

In a July 21, 2016 letter, an OWCP hearing representative notified appellant that a 

telephone hearing would be held on August 30, 2016 at 2:00 p.m. Eastern Standard Time (EST). 

Appellant was provided a toll-free number and passcode to use to appear at the scheduled 

hearing. She was advised regarding the procedures for rescheduling a hearing. The hearing 

notice was mailed to appellant’s address of record. Appellant did not appear at the hearing. 

In a September 13, 2016 decision, the hearing representative found that appellant had 

abandoned her hearing request, which had been scheduled for August 30, 2016. She noted that 

appellant received written notification of the hearing 30 days in advance, but failed to appear. 

The hearing representative further noted that nothing in the record established that appellant had 

contacted the Branch of Hearings and Review either prior to or subsequent to the scheduled 

hearing to explain her absence. 

 3

 In the January 7, 2016 decision, OWCP noted that appellant had a change of address prior to the time of the 

mailing of the Form EN1032. It indicated that, while it was not notified about such change, there was a forwarding 

order in place and the Form EN1032 was not returned as undeliverable. Thus, OWCP presumed that appellant 

received the form. 
3

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.4 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.5 OWCP has the burden of proving that it mailed notice of a 

scheduled hearing to a claimant.6

 

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

under very limited circumstances.7

 Chapter 2.1601.6(g) of OWCP’s procedures8 and section 

10.622(f) of its regulations9

 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.10 

ANALYSIS 

On January 7, 2016 OWCP issued a final decision suspending appellant’s wage-loss 

compensation benefits effective January 9, 2016 as she failed to complete and return a Form CA1032. OWCP’s Branch of Hearings and Review received a timely request for a telephone 

hearing regarding the January 7, 2016 suspension decision, which it acknowledged by letter 

dated January 14, 2016. Several months later, in a July 21, 2016 letter, the Branch of Hearings 

and Review provided 30 days in advance written notice of the hearing, which was scheduled for 

August 30, 2016 at 2:00 p.m., EST. OWCP mailed the July 21, 2016 notice to appellant’s 

address of record, and it was not returned as undeliverable. Absent evidence to the contrary, a 

notice mailed in the ordinary course of business is presumed to have been received by the 

intended recipient.11 This presumption is commonly referred to as the mailbox rule.12 It arises 

 4

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

5

 20 C.F.R. § 10.617(b). 

6 See also Michelle R. Littlejohn, 42 ECAB 463 (1991). 

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

8

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

2.1601.6(g) (October 2011). 

9

 20 C.F.R. § 10.622(f). 

10 See supra note 8 at Chapter 2.1601.6(g). 

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

12 Id.
4

when the record reflects that the notice was properly addressed and duly mailed.13 The current 

record is devoid of any evidence to rebut the presumption. 

Appellant did not appear for the August 30, 2016 scheduled hearing, and there is no 

indication that she requested postponement of the hearing.14 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.15 The regulations provide that where good 

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

teleconference.16

The record establishes that the Branch of Hearings and Review provided at least 30-days 

advance written notice of her scheduled hearing. As previously indicated, appellant did not 

request postponement of the hearing, nor did she attend the August 30, 2016 scheduled hearing. 

Lastly, she did not provide a written explanation for her absence within the 10-day period 

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

properly found that appellant abandoned her hearing request. 

On appeal appellant explained that her absence from the hearing was due to a medical 

problem. However, she did not provide such notification to OWCP within 10 days of the 

scheduled hearing. All three requirements for abandonment are met and therefore the Board 

finds that appellant abandoned her request for a telephone hearing. 

CONCLUSION 

The Board finds that appellant abandoned her request for a telephone hearing before 

OWCP’s Branch of Hearings and Review. 

 13 Id.

14 See 20 C.F.R. § 10.622(c). 

15 Id. at § 10.622(f). 

16 Id.
5

ORDER 

IT IS HEREBY ORDERED THAT the September 13, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 9, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board