United States Department of Labor

Employees’ Compensation Appeals Board

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K.F., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

CORRECTIONAL INSTITUTION, 

Edgefield, SC, Employer

__________________________________________

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Docket No. 18-0839

Issued: November 19, 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 March 13, 2018 appellant filed a timely appeal from a February 20, 2018 nonmerit 

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

elapsed from the last merit decision dated July 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.2

 

1 5 U.S.C. § 8101 et seq. 

2 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure 

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for the first time on appeal. Id.
2

ISSUE

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

for a telephone hearing before an OWCP hearing representative.

FACTUAL HISTORY

On August 16, 2016 appellant, then a 46-year-old case manager, filed a traumatic injury 

claim (Form CA-1) alleging that on August 9, 2016 she developed lower back pain at work while 

she attempted to open a file drawer that appeared to be tightly sealed. 

OWCP received a letter dated August 17, 2016 from Kelly A. Blount, a physician assistant, 

an undated medical report and a report dated December 19, 2016 from Dr. Cynthia S. Murray, a 

Board-certified family practitioner, and reports dated August 16 and 23, 2016 from Dr. Franklin E. 

Payne, a Board-certified family practitioner, who diagnosed lumbar strain and addressed 

appellant’s work capacity. 

OWCP, by development letter dated June 15, 2017, advised appellant that when her claim 

was first received it appeared to be a minor injury that resulted in minimal or no lost time from 

work and, based on these criteria and because the employing establishment did not controvert

continuation of pay or challenge the merits of the case, payment of a limited amount of medical 

expenses was administratively approved. It indicated that it had reopened the claim for 

consideration because her medical bills had exceeded $1,500.00. OWCP requested additional 

medical evidence and afforded appellant 30 days to submit such evidence. It also requested that 

the employing establishment submit treatment notes if she was treated at an employing 

establishment medical facility. Neither appellant, nor the employing establishment responded in 

the allotted period.

By decision dated July 19, 2017, OWCP denied appellant’s traumatic injury claim as the 

medical evidence of record did not contain a rationalized medical opinion explaining how her 

diagnosed lumbar condition was causally related to the accepted August 9, 2016 employment 

incident. 

In an appeal request form dated July 24, 2017 and date stamped as received by OWCP on 

August 21, 2017, appellant requested a telephone hearing before an OWCP hearing representative. 

On August 21, 2017 OWCP acknowledged receipt of the hearing request. 

OWCP received an August 16, 2016 authorization for examination and/or treatment (Form 

CA-16). It also received a work capacity evaluation (Form OWCP-5c) dated August 16, 2016,

wherein Ms. Blount advised that appellant was able to perform her usual job eight hours a day 

with restrictions. 

In a January 3, 2018 letter, a representative of OWCP’s Branch of Hearings and Review 

advised appellant that a telephone hearing would be held on February 8, 2018 at 1:45 p.m. Eastern 
3

Standard Time (EST).3 The hearing representative instructed her to call the provided toll-free 

number shortly before the hearing time and enter the passcode to gain access to the conference 

call. She advised appellant that postponement of the hearing would be permitted only upon receipt 

showing that her nonelective hospitalization or the death of a spouse, parent, or child prevented 

her attendance. The hearing representative mailed the hearing notice to her last known address of 

record. 

At the appointed time of the scheduled telephone hearing, appellant neither called, nor 

contacted OWCP’s Branch of Hearings and Review within the requisite 10 days thereafter. 

By decision dated February 20, 2018, the same OWCP hearing representative found that 

appellant had failed to appear at the February 8, 2018 telephone hearing and had abandoned her 

request. She found that there was no evidence that appellant had contacted OWCP either prior to 

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.4 Unless otherwise 

directed in writing by the claimant, OWCP’s 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.5 OWCP has the burden of proving that it mailed notice of a scheduled hearing 

to a claimant.6

A hearing before OWCP’s Branch of Hearings and Review can be considered abandoned 

only under very limited circumstances.7 With respect to abandonment of hearing requests, Chapter 

 

3 A claimant is entitled to a hearing or review of the written record as a matter of right only if the request is filed 

within the requisite 30 days determined by postmark or other carrier’s date marking and before the claimant has 

requested reconsideration. 20 C.F.R. § 10.616(a). However, the Branch of Hearings and Review may exercise its 

discretion to either grant or deny a hearing. 5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones, Jr., 57 ECAB 467, 

472-73 (2006); Herbert C. Holley, 33 ECAB 140 (1981). As noted, appellant’s July 24, 2017 telephone hearing 

request was date stamped as having been received by OWCP on August 21, 2017. The imaged copy of the envelope 

that is in the record before the Board does not have a legible postmark date. Where the postmark is illegible, the 

hearing request will be deemed timely unless OWCP has kept evidence of date of delivery on the record reflecting 

that the request is untimely. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written 

Record, Chapter 2.1601.4a (October 2011). Although the evidence regarding date of delivery was more than 30 days 

after OWCP’s July 19, 2017 decision, OWCP’s hearing representative properly exercised her discretionary authority 

in granting a hearing. 

4 5 U.S.C. § 8124(b); 20 C.F.R. § 10.616(a).

5

Id. at § 10.617(b).

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

7 Claudia J. Whitten, 52 ECAB 483 (2001).
4

2.1601(g) of OWCP’s procedures8and 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

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

for a telephone hearing before an OWCP hearing representative.

OWCP’s Branch of Hearings and Review received appellant’s July 24, 2017 request for a 

telephone hearing which it acknowledged by letter dated August 21, 2017. By letter dated 

January 3, 2018, the hearing representative with OWCP’s Branch of Hearings and Review 

provided her 30 days written notice of her hearing, which was scheduled for February 8, 2018 at 

1:45 p.m. EST.11 OWCP mailed the January 3, 2018 notice of hearing to appellant’s last known 

address of record. On appeal, appellant contends that she did not receive notice of the hearing. 

However, the record reflects that a copy of the January 3, 2018 hearing notice was mailed to the 

correct address of record and was not returned as undeliverable.12 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.13 As the record reflects that OWCP properly mailed a hearing notice to appellant’s 

address of record, it is presumed that it arrived at her mailing address.

Further, appellant did not call-in as instructed for the February 8, 2018 scheduled telephone

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 

 

8 Supra note 4 at Chapter 2.1601.6(g) (October 2011).

9 20 C.F.R. § 10.622(f).

10 See supra note 8.

11 See supra note 5.

12 See K.F., Docket No. 17-1035 (issued August 24, 2017).

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

14 See 20 C.F.R. § 10.622(c).

15 Id. at § 10.622(f).
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and conducted by teleconference.16 Under the circumstances, OWCP’s hearing representative 

properly found that appellant abandoned her hearing request.17

CONCLUSION

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

for a telephone hearing before an OWCP hearing representative.

ORDER

IT IS HEREBY ORDERED THAT the February 20, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 19, 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

 

16 Id.

17 The case record includes an August 16, 2016 authorization for examination and/or treatment (Form CA-16). 

When the employing establishment properly executes a Form CA-16 which authorizes medical treatment as a result 

of an employee’s claim for an employment-related injury, the Form CA-16 creates a contractual obligation, which 

does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the action 

taken on the claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date 

of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003).