United States Department of Labor

Employees’ Compensation Appeals Board

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A.N., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

Santee, CA, Employer

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Docket No. 19-1496

Issued: December 31, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On July 2, 2019 appellant filed a timely appeal from a June 25, 2019 nonmerit decision of 

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

OWCP’s last merit decision, dated January 2, 2019, 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 his request for 

an oral hearing before an OWCP hearing representative.

FACTUAL HISTORY

On August 27, 2018 appellant, then a 41-year-old border patrol agent, filed a traumatic 

injury claim (Form CA-1) alleging that he injured his lower back that day when he bent over to 

 

1 5 U.S.C. § 8101 et seq.
2

inflate a tire on an all-terrain vehicle (ATV) and heard a loud pop and immediately felt pain in his 

lower back while in the performance of duty. In an August 28, 2018 authorization for examination

and/or treatment (Form CA-16), Dr. Jennifer Doumas, Board-certified in family medicine, 

diagnosed lumbar sprain and left-side sciatica, which she attributed to appellant bending over 

filling tires at work on August 27, 2018. She excused him from work through September 4, 2018.

Dr. Doumas treated appellant for follow up on September 4, 11, 19, October 3, 17, 31, and 

November 14, 2018. She continued to diagnose lumbar sprain. Dr. Doumas also prescribed 

physical therapy and released appellant to return to work with restrictions effective 

September 12, 2018. OWCP also received appellant’s physical therapy records from 

September 21 to November 2, 2018, which documented his treatment for lumbar sprain. 

In a development letter dated November 21, 2018, OWCP informed appellant that his claim 

initially appeared to be a minor injury that resulted in minimal or no lost time from work and that 

continuation of pay was not controverted by the employing establishment, and thus, limited 

expenses had been authorized. However, a formal decision was now required. OWCP advised 

him of the type of factual and medical evidence required to establish his traumatic injury claim 

and requested a narrative medical report from appellant’s physician which provided the 

physician’s rationalized medical explanation as to how the alleged employment incident caused 

the diagnosed condition. It afforded appellant 30 days to respond.

OWCP subsequently received follow-up treatment records from Dr. Doumas dated 

November 28, 2018. Dr. Doumas continued to diagnose lumbar sprain/strain and provided work 

restrictions. She also referred appellant to an orthopedist for further evaluation.

In a December 4, 2018 report, Dr. John Finkenberg, a Board-certified orthopedic surgeon, 

noted appellant’s lumbar sprain in relation to an injury he sustained three months prior and 

recommended that he undergo a magnetic resonance imaging (MRI) scan for further evaluation. 

In a December 17, 2018 note, he indicated that appellant could perform desk duty pending 

approval of an MRI scan or until his next appointment on January 18, 2019.

By decision dated January 2, 2019, OWCP denied appellant’s traumatic injury claim. It 

found that the medical evidence of record was insufficient to establish causal relationship between 

appellant’s lumbar sprain and the accepted August 27, 2018 employment incident.

On January 30, 2019 appellant timely requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review. OWCP also received additional medical evidence 

following issuance of its January 2, 2019 decision.

In a May 7, 2019 letter, OWCP’s hearing representative notified appellant that a telephonic 

hearing was scheduled for Tuesday, June 11, 2019 at 2:45 p.m. Eastern Standard Time (EST). The 

notice included a toll-free number to call and provided the appropriate passcode. The hearing 

representative mailed the notice to appellant’s last known address of record.2

 

2 When appellant requested an oral hearing, he provided a new address that was different than the address previously 

noted on OWCP’s January 2, 2019 decision. OWCP mailed the May 7, 2019 hearing notice to the address appellant 

identified on his request for a hearing, which is the same address appellant subsequently identified with respect to the 

current appeal.
3

By decision dated June 25, 2019, OWCP’s hearing representative determined that 

appellant had abandoned his request for an oral hearing. The hearing representative indicated that 

he received a 30-day advance written notice of the hearing scheduled for June 11, 2019, and that 

he failed to appear. The hearing representative further noted that there was no indication in the 

record that appellant contacted OWCP prior to request a postponement or provide an explanation 

to OWCP for his failure to appear at the hearing within 10 days of the scheduled hearing. 

Consequently, appellant was deemed to have abandoned his request for an oral hearing.

LEGAL PRECEDENT

A claimant who has received a final adverse decision by OWCP may obtain a hearing by 

writing to the address specified in the decision within 30 days of the date of the decision for which 

a hearing is sought.3 Unless otherwise directed in writing by the claimant, OWCP’s 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.4 OWCP has the burden of proving that 

it properly mailed to a claimant and any representative of record a notice of a scheduled hearing.5

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. 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.6

ANALYSIS

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

an oral hearing before an OWCP hearing representative.

Following OWCP’s January 2, 2019 decision, appellant filed a timely request for an oral 

hearing before a representative of OWCP’s Branch of Hearings and Review. In a May 7, 2019 

letter, OWCP’s hearing representative notified him that OWCP’s Branch of Hearings and Review 

had scheduled a telephonic hearing for June 11, 2019 at 2:45 p.m. EST. The hearing representative

properly mailed the hearing notice to appellant’s last known address and provided instructions on 

how he was to participate. On appeal appellant contends that he never received OWCP’s letter. 

However, the record reflects that the May 7, 2019 hearing notice was mailed to the correct address 

of record and was not returned as undeliverable.7 The Board has held, in the absence of evidence 

to the contrary, a letter properly addressed and mailed in the ordinary course of business is 

 

3 20 C.F.R. § 10.616(a).

4

Id. at § 10.617(b).

5 M.R., Docket No. 18-1643 (issued March 1, 2019); T.P., Docket No. 15-0806 (issued September 11, 2015); 

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

6 20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written 

Record, Chapter 2.1601.6(g) (October 2011); see also R.S., Docket No. 15-1358 (issued December 4, 2015).

7 K.F., Docket No. 18-0839 (issued November 19, 2018).
4

presumed to have been received. This is known as the mailbox rule.8 Accordingly, without 

evidence to the contrary, the May 7, 2019 hearing notice is presumed to have arrived at appellant’s 

mailing address. Appellant failed to call in for the June 11, 2019 scheduled hearing using the 

provided telephone number and passcode. He did not request a postponement or provide an 

explanation to OWCP for his failure to attend the hearing within 10 days of the scheduled hearing. 

Thus, the Board finds that OWCP properly determined that appellant abandoned his request for an 

oral hearing.9

CONCLUSION

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

an oral hearing before an OWCP hearing representative.

ORDER

IT IS HEREBY ORDERED THAT the June 25, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: December 31, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

8 See A.J., Docket No. 18-0830 (issued January 10, 2019); see also R.M., Docket No. 14-1512 (issued October 15, 

2014); V.M., Docket No. 06-0403 (issued December 15, 2006).

9 See D.D., Docket No. 19-0455 (issued October 10, 2019); R.S., Docket No. 15-1358 (issued December 4, 2015).