United States Department of Labor

Employees’ Compensation Appeals Board

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K.C., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Tucson, AZ, Employer

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Docket No. 18-0807

Issued: April 18, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

On March 6, 2018 appellant filed a timely appeal from a November 27, 2017 merit decision 

of the Office of Workers’ Compensation Programs (OWCP) denying his schedule award claim. 

The Clerk of the Appellate Boards docketed the appeal as No. 18-0807.

On February 7, 2014 appellant, then a 30-year-old border patrol agent, filed a traumatic 

injury claim (Form CA-1) alleging that on January 7, 2014 he developed swelling and pain in his 

right knee while in the performance of duty. On June 18, 2015 OWCP accepted the claim for tear 

of the medial meniscus and tear of the lateral meniscus in the right knee. It authorized right knee 

arthroscopy, partial medial meniscectomy, partial lateral meniscectomy, and synovectomy 

performed on August 13, 2015. 

On May 24, 2017 appellant filed a claim for a schedule award (Form CA-7). He did not 

submit any additional evidence.

In a development letter dated September 7, 2017, OWCP advised appellant of the 

deficiencies of his claim and requested a medical report from his physician assessing his permanent 

impairment based on the sixth edition of the American Medical Association, Guides to the 
2

Evaluation of Permanent Impairment (A.M.A., Guides)

1

and establishing the date on which he had 

reached maximum medical improvement. It afforded him 30 days to submit the requested medical 

evidence. 

OWCP’s September 7, 2017 correspondence was returned and marked “RETURN TO 

SENDER.” Appellant subsequently advised OWCP of his new address. By letter dated 

October 18, 2017, OWCP acknowledged receipt of appellant’s change of address request and, on 

that same day, it resent the development letter to his new address. Its October 18, 2017 

correspondence was returned and marked “RETURN TO SENDER.”

By decision dated November 27, 2017 decision, OWCP denied appellant’s claim for a 

schedule award, finding the evidence of record was insufficient to establish permanent impairment 

of a scheduled member or function of the body due to the January 7, 2014 employment injury. It 

noted that he had not responded to the September 7 and October 18, 2017 development letters.

The Board has duly considered the matter and finds that this case is not in posture for 

decision. On October 18, 2017 OWCP mailed appellant a properly addressed development letter. 

The mailbox rule provides that proper and timely mailing of a document in the ordinary course of 

business raises a rebuttable presumption of receipt by the addressee.2 However, as a rebuttable 

presumption, receipt will not be assumed when there is evidence of nondelivery.

3

 The record in 

this case contains direct evidence of nondelivery of the October 18, 2017 development letter. 

Although properly addressed to appellant at his address of record, the U.S. Postal Service returned 

the letter to OWCP as undeliverable. OWCP received the nondelivered development letter on 

October 23, 2017. Consequently, appellant has rebutted the presumption of receipt of the 

October 18, 2017 development letter under the mailbox rule.4

As appellant did not receive the October 18, 2017 development letter, the case will be 

remanded to OWCP to issue a new development letter followed by a de novo decision on 

appellant’s schedule award claim.

 

1 A.M.A., Guides (6th ed. 2009).

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

3 L.M., Docket No. 16-0144 (issued March 22, 2016).

4 See M.U., Docket No. 09-0526 (issued September 14, 2009) (the Board found that presumption of receipt of a 

Notice of an Oral Hearing was rebutted when the envelope enclosing the Notice of an Oral Hearing was returned and 

marked Return to Sender and remanded the case for reissuance of the Notice of an Oral Hearing).
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IT IS HEREBY ORDERED THAT the November 27, 2017 decision of the Office of 

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

consistent with this decision of the Board.

Issued: April 18, 2019

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