United States Department of Labor

Employees’ Compensation Appeals Board

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E.K., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Los Angeles, CA, Employer

__________________________________________

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Docket No. 19-0245

Issued: July 8, 2019

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

JANICE B. ASKIN, Judge

JURISDICTION

On November 14, 2018 appellant filed a timely appeal from an October 16, 2018 nonmerit 

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

elapsed from the last merit decision, dated May 4, 2018, 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 this case.

ISSUE

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

an oral hearing.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On January 20, 2003 appellant, then a 49-year-old mail processor, filed an occupational

disease claim (Form CA-2) alleging that she sustained injuries to her shoulders and elbows due to 

factors of her federal employment, including repetitive motions.

By decision dated June 20, 2003, OWCP accepted the claim for bilateral shoulder tendinitis 

and bilateral elbow tendinitis.

By decision dated April 17, 2009, OWCP granted appellant a schedule award for 11 

percent permanent impairment of the right upper extremity and 19 percent permanent impairment 

of the left upper extremity. The award ran for 93.60 weeks for the period March 15, 2009 to 

December 30, 2010.

By decision dated July 30, 2009, OWCP reduced appellant’s wage-loss compensation 

effective that day because she was no longer totally disabled for work and had the capacity to earn 

wages as a security guard at the rate of $362.40 per week.

In a February 13, 2014 preliminary determination, OWCP found that appellant received an 

overpayment of compensation in the amount of $1,607.32 because she had received payments at 

the 3/4 rate through February 8, 2014, but her daughter had turned 23 years old on March 2, 2012 

and the semester ended on May 11, 2012. It found that she was with fault in the creation of the 

overpayment because she knew or reasonably should have known that she was not entitled to 

compensation payments at the 3/4 rate after her daughter turned 23 years old. 

By decision dated December 10, 2014, OWCP finalized its overpayment decision, finding 

that appellant had received an overpayment of compensation in the amount of $1,607.32 and she 

was at fault in the creation of the overpayment. It directed recovery of the overpayment by 

deducting $50.00 per month from appellant’s continuing compensation payments.

In a development letter dated March 13, 2018, OWCP referred appellant to Dr. Frederic 

Nicola, a Board-certified orthopedic surgeon, for a second opinion examination on April 12, 2018 

to determine the nature and extent of her employment-related conditions.

In a May 13, 2018 letter, a case coordinator indicated that appellant did not keep the 

scheduled appointment with Dr. Nicola on April 12, 2018.

By decision dated May 4, 2018, appellant’s compensation and medical benefits were 

suspended because she had failed to attend, or obstructed, an examination directed by OWCP. 

On May 23, 2018 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review. 

In an August 16, 2018 notice, OWCP’s Branch of Hearings and Review notified appellant 

that it had scheduled a telephonic hearing for October 3, 2018 at 3:15 p.m., Eastern Standard Time. 

It provided appellant with a toll free number and pass code for the telephonic hearing. The notice 

was mailed to appellant’s address of record. Appellant did not appear at the appointed time and 

place.
3

By decision dated October 16, 2018, OWCP’s hearing representative found that appellant 

had failed to appear for the telephonic hearing and therefore, had abandoned her request. The 

hearing representative noted that an oral hearing was scheduled to be conducted by telephone on 

October 3, 2018 and that appellant received written notification of the hearing 30 days in advance 

of the hearing. The hearing representative indicated that appellant failed to appear for the hearing 

and there was no indication in the file that she contacted OWCP either prior or subsequent to the 

scheduled hearing to explain her failure to appear.

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.2 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 a representative at least 30 days before the 

scheduled date.3 OWCP has the burden of proving that it mailed notice of the scheduled hearing 

to a claimant.4 

Section 10.622(f) of OWCP regulations provide that 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. The failure of the claimant to request another 

hearing within 10 days, or the failure of the claimant to appear at the second scheduled hearing 

without good cause shown, shall constitute abandonment of the request for a hearing. Where good 

cause is shown for failure to appear at the second scheduled hearing, review of the matter will 

proceed as a review of the written record.6 Where it has been determined that a claimant has 

abandoned his or her right to a hearing, OWCP will issue a formal decision finding that the 

claimant abandoned the request for a hearing.7

ANALYSIS

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

an oral hearing.

The record establishes that on August 16, 2018, in response to appellant’s timely request 

for an oral hearing, a hearing representative notified her that OWCP’s Branch of Hearings and

 

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

3 20 C.F.R. § 10.617(b).

4 M.B., Docket No. 10-1077 (issued March 17, 2011).

5 20 C.F.R. § 10.622(f).

6

Id.

7 N.L., Docket No. 15-0713 (issued July 14, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings 

and Reviews of the Written Record, Chapter 2.1601.6(g) (October 2011).
4

Review scheduled a telephonic hearing to be held on October 3, 2018 at 3:15 p.m., Eastern 

Standard Time. The hearing notice was properly mailed to appellant’s last known address of 

record. As the Board has held, in the absence of evidence to the contrary, a letter properly 

addressed and mailed in the due course of business is presumed to have arrived at the mailing 

address in due course. This is known as the mailbox rule.8 Appellant did not request a 

postponement of the hearing prior to October 3, 2018 or explain her failure to appear at the hearing 

within 10 days of the scheduled hearing. Thus, the Board finds that she abandoned her request for 

an oral hearing.9

On appeal, appellant indicated that she lives in the Pacific Time zone. She contended that 

she was unaware of the time zone difference for her scheduled telephonic hearing and it was 

unclear to her, as English is not her first language, that the hearing would be scheduled for three 

hours ahead of her time zone. However, there is no evidence that appellant telephoned for the 

scheduled hearing on October 3, 2018 or provided this information to OWCP within 10 days of 

the scheduled hearing explaining her failure to appear.

10

 

The Board therefore finds that appellant abandoned her request for an oral hearing. Thus, 

OWCP properly determined that she abandoned her request for an oral hearing.

CONCLUSION

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

an oral hearing.

 

8 R.M., Docket No. 14-1512 (issued October 15, 2014).

9 See supra note 5; see also R.S., Docket No. 15-1358 (issued December 4, 2015).

10 See T.M., Docket No. 16-1373 (issued January 5, 2017) (where the Board found that appellant abandoned her 

request for a telephone hearing, even though she called into the scheduled hearing an hour late because she had 

incorrectly adjusted for Eastern Standard Time, because there was no evidence that she provided this information to 

OWCP within 10 days of the scheduled hearing).
5

ORDER

IT IS HEREBY ORDERED THAT the October 16, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 8, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board