United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Houston, TX, Employer 

__________________________________________ 

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Docket No. 17-1174 

Issued: September 6, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 8, 2017 appellant filed a timely appeal from a March 10, 2017 nonmerit decision 

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

from the last merit decision, dated June 16, 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 the claim. 

ISSUE 

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

oral hearing. 

FACTUAL HISTORY 

OWCP accepted that on or before September 21, 2000 appellant, then a 47-year-old 

distribution clerk, climbed stairs, walked, and stood while in the performance of duty, causing an 

 1

 5 U.S.C. § 8101 et seq. 
2

aggravation of degenerative joint disease of the left knee. Appellant stopped work on 

September 21, 2000 and did not return. OWCP paid appellant wage-loss compensation for total 

disability from September 22, 2000 to July 29, 2001. 

Dr. Thaddeus W. Hume, an attending Board-certified orthopedic surgeon, provided 

periodic reports February 22, 2002, noting that appellant had remained off work after the 

September 26, 2000 arthroscopic left knee surgery. He opined that she remained disabled from 

her date-of-injury position and might require total knee arthroplasty in the future. On April 1, 

2002 Dr. Hume requested OWCP to authorize purchase of a wheelchair due to appellant’s severe 

osteoarthritis in both knees. Periodic reports kept her off work due to severe osteoarthritis of 

both knees. 

In a June 19, 2002 report, Dr. Hume opined that appellant had 37 percent permanent 

impairment of the right lower extremity and 20 percent permanent impairment of the left lower 

extremity due to severe osteoarthritis of both knees, according to the fifth edition of the 

American Medical Associations, Guides to the Evaluation of Permanent Impairment 

(hereinafter, A.M.A., Guides) then in effect. 

On November 19, 2002 an OWCP medical adviser reviewed Dr. Hume’s evaluation and 

found 35 percent permanent impairment of the right lower extremity and 20 percent permanent 

impairment of the left lower extremity. He found that appellant had attained maximum medical 

improvement as of June 19, 2002. 

By decision dated January 22, 2003, OWCP issued a schedule award for 35 percent 

permanent impairment of the right lower extremity and 20 percent permanent impairment of the 

left lower extremity due to bilateral knee osteoarthritis. The period of the award ran from 

May 19, 2002 through May 31, 2005. 

Following the end of the schedule award, OWCP resumed paying disability 

compensation from June 1, 2005 through March 18, 2006.2

 Appellant was paid compensation on 

the periodic rolls from March 19, 2006 to July 23, 2016. She remained under medical treatment 

and participated in physical therapy periodically from 2010 through early 2014. 

In an April 25, 2014 report, Dr. Robin N. Goytia, an attending Board-certified orthopedic 

surgeon, diagnosed bone on bone post-traumatic osteoarthritis of both knees. On June 30, 2015 

he recommended bilateral total knee arthroplasties. 

On July 8, 2015 OWCP authorized Dr. Goytia’s request for a total left knee arthroplasty. 

 2

 On February 1, 2005 OWCP obtained a second opinion report from Dr. David Vanderweide, a Board-certified 

orthopedic surgeon, who opined that an accepted bilateral shoulder condition had returned to baseline. By notice 

dated July 25, 2005 and finalized September 6, 2005, it terminated appellant’s compensation effective September 6, 

2005, finding that an accepted bilateral shoulder condition had ceased with no residuals. By decision dated 

February 16, 2006, OWCP’s Branch of Hearings and Review reversed the termination and reinstated her 

compensation benefits. OWCP again terminated appellant’s wage-loss compensation by May 20, 2008 decision, 

finding that she refused an offer of suitable work. By decision dated May 27, 2008, OWCP’s Branch of Hearings 

and Review reversed the May 20, 2008 decision and reinstated her compensation benefits. 
3

In a February 22, 2016 report, an OWCP medical adviser opined that appellant’s right 

knee osteoarthritis was due to nonoccupational causes, including morbid obesity. Dr. Goytia 

again recommended total right knee arthroplasty on February 24, 2016, emphasizing that 

appellant’s severe osteoarthritis was post-traumatic and not idiopathic in nature. 

By decision dated June 16, 2016, OWCP denied appellant’s request to authorize a total 

right knee arthroplasty, as OWCP’s medical adviser had opined that the right knee osteoarthritis 

was due solely to preexisting, idiopathic conditions. 

In a July 8, 2016 appeal request form received by OWCP on July 12, 2016, appellant 

requested a telephonic oral hearing before a representative of OWCP’s Branch of Hearings and 

Review. OWCP issued an acknowledgement letter on July 18, 2016. 

In a January 5, 2017 letter, OWCP notified appellant that a telephonic oral hearing was 

scheduled in her case for 2:15 p.m. (Eastern Standard Time) on February 17, 2017. It provided a 

toll-free call-in number and passcode. OWCP explained that, if appellant no longer desired a 

hearing, she should request cancellation immediately by writing to the Branch of Hearings and 

Review. 

In a February 3, 2017 letter received by OWCP and imaged into the electronic case 

record on February 14, 2017, appellant requested that OWCP cancel the oral hearing scheduled 

for February 17, 2017. She also asked to change her request for an oral hearing to a request for a 

review of the written record. Appellant submitted a new report from Dr. Goytia dated 

September 20, 2016, explaining why the requested right knee arthroscopy was necessitated by 

the accepted injuries. 

By decision dated March 10, 2017, OWCP’s hearing representative found that appellant 

had abandoned her request for a hearing, which had been scheduled for February 17, 2017, as 

she had failed to appear at the designated time and place and, according to the hearing 

representative, there was no indication in the file that she had contacted OWCP either before or 

after the scheduled hearing explaining her failure to appear. 

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

 The claimant may request either an oral 

hearing or a review of the written record.4 Unless otherwise directed in writing by the claimant, 

OWCP’s hearing representative will mail a notice of the time and place of the oral hearing to the 

claimant and any representative at least 30 days before the scheduled date.5

 A claimant who fails 

to appear at a scheduled hearing may request in writing within 10 days after the date of the 

 3

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

4 Id. at § 10.615. 

5 Id. at § 10.617(b). 
4

hearing that another hearing be scheduled.6 Where good cause for failure to appear is shown, 

another hearing will be scheduled and conducted by teleconference.7

 The claimant’s failure to 

request another hearing within 10 days shall constitute abandonment of the hearing request.8 

Once an oral hearing is scheduled and OWCP’s hearing representative has mailed 

appropriate written notice to the claimant and representative, OWCP will, upon submission of 

proper written documentation of unavoidable serious scheduling conflicts (such as court-ordered 

appearances/trials, jury duty, or previously scheduled outpatient procedures), entertain requests 

from a claimant or his or her representative for rescheduling as long as the hearing can be 

rescheduled on the same monthly docket, generally no more than seven days after the originally 

scheduled time. In these instances, rescheduled hearings will usually be held via teleconference, 

and the hearing representative will ensure that the file accurately reflects any action taken to 

reschedule the hearing. When a request to postpone a scheduled hearing cannot be 

accommodated on the docket, no further opportunity for an oral hearing will be provided. 

Instead, the hearing will take the form of a review of the written record and a decision issued 

accordingly.9 

ANALYSIS 

On a July 8, 2016 appeal request form, appellant initially requested a telephonic oral 

hearing with respect to OWCP’s June 16, 2016 decision. OWCP received her request on 

July 12, 2016 and sent an acknowledgment letter on July 18, 2016. In a January 5, 2017 letter, it 

notified appellant that the hearing was scheduled for February 17, 2017 at 2:15 p.m. and 

provided a toll-free call-in number and passcode. This letter also explained the procedures for 

cancelling the hearing. 

In a February 3, 2017 letter received by OWCP on February 14, 2017, three days prior to 

the scheduled hearing, appellant requested that OWCP cancel the scheduled hearing and instead 

conduct a review of the written record. OWCP did not acknowledge receipt of her letter 

cancelling the hearing and prepared to conduct the hearing as scheduled. Appellant did not 

appear for the scheduled February 17, 2017 hearing. OWCP subsequently issued its March 10, 

2017 decision, finding that she abandoned her hearing request as she did not participate in the 

scheduled hearing or contact OWCP either before or after to explain why she failed to appear. 

Once a request for a hearing has been received, the claimant may request a change in the 

format from a hearing to a review of the written record by making a written request to the Branch 

of Hearings and Review.10 OWCP will grant a request received by the Branch of Hearings and 

 6

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

2.1601.6g (October 2011). 

7 Id. 

8

 Id. 

9

 20 C.F.R. § 10.622(c). 

10 Id. at § 10.616(b). 
5

Review within 30 days of: (1) the date OWCP acknowledges the initial hearing request; or 

(2) the date OWCP issues a notice setting a date for an oral hearing, in cases where the initial 

request was for, or was treated as a request for, an oral hearing.11 A request received beyond the 

above-noted time frames will be subject to OWCP’s discretion.12 The decision to grant or deny a 

change of format from a hearing to a review of the written record is not reviewable.13 

The Board finds that appellant did not abandon her request for a hearing, as the record 

reveals that she timely requested cancellation. On February 12, 2017 OWCP received her 

request to cancel the hearing and conduct a review of the written record. The Board further 

finds, however, that her February 14, 2017 request for a review of the written record was 

untimely filed, as it was not received by OWCP within 30 days of the July 18, 2016 

acknowledgement letter, or the January 5, 2017 notice of hearing.14 OWCP therefore must 

exercise its discretion as to whether to grant appellant’s request for a change of format.15 

However, the March 10, 2017 decision finding that appellant abandoned her hearing request did 

not address her request for a review of the written record. Therefore, the case must be remanded 

for review and an appropriate decision. 

CONCLUSION 

The Board finds that the case is not in posture for a decision. 

 11 Id. 

12 Id. 

13 Id. 

14 Id. 

15 Id. 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated March 10, 2017 is set aside, and the case remanded for additional 

action consistent with this decision and order. 

Issued: September 6, 2017 

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