United States Department of Labor

Employees’ Compensation Appeals Board

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M.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Oakland, CA, Employer

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Docket No. 18-1643

Issued: March 1, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 27, 2018 appellant filed a timely appeal from a March 21, 2018 nonmerit 

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

elapsed from the last merit decision, dated February 23, 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 additional evidence for the first time on 

appeal. Id.
2

ISSUE

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

a telephonic hearing before an OWCP hearing representative.

FACTUAL HISTORY

On October 27, 2016 appellant, then a 47-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that she sustained a sprain of her right shoulder over a period 

of time causally related to factors of her federal employment. She did not stop work. The 

employing establishment controverted the claim. 

By an appeal request form dated and postmarked March 9, 2017 appellant requested a 

telephonic hearing with a representative of OWCP’s Branch of Hearings and Review. In a 

February 7, 2018 letter, OWCP’s hearing representative notified her that OWCP’s Branch of 

Hearings and Review had scheduled a telephonic hearing for March 9, 2018, at 12:30 p.m. Eastern 

Standard Time (EST). The hearing notice was mailed to appellant’s address of record and she was 

provided with a toll-free number to call and the appropriate passcode. Appellant did not, however,

call in for the hearing at the appointed time. She also did not contact OWCP’s Branch of Hearings 

and Review within 10 days thereafter to explain her absence.

By decision dated March 21, 2018, OWCP’s hearing representative determined that 

appellant abandoned her request for a telephonic 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, the 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 

 

3 20 C.F.R. § 10.616(a).

4

Id. at § 10.617(b).

5 T.P., Docket No. 15-0806 (issued September 11, 2015).
3

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 her request for 

a telephonic hearing before an OWCP hearing representative. 

Following OWCP’s February 23, 2017 final decision denying appellant’s occupational 

disease claim, she filed a timely request for a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review. In a February 7, 2018 letter, a hearing representative 

notified her that OWCP’s Branch of Hearings and Review had scheduled a telephonic hearing for

March 9, 2018, at 12:30 p.m., EST. OWCP properly mailed the hearing notice to appellant’s last 

known address.

7

 Appellant failed to call-in for the scheduled hearing using the provided telephone 

number. She did not request a postponement or provide an explanation to OWCP for her failure 

to attend the hearing within 10 days of the scheduled hearing. The Board thus finds that OWCP 

properly determined that appellant abandoned her request for a telephonic hearing.8

On appeal appellant argues that she did not abandon her hearing. However, the Board finds 

that she abandoned the scheduled hearing. 

CONCLUSION

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

a telephonic hearing before an OWCP hearing representative.

 

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

Record, Chapter 2.1601.6(g) (October 2011). See also A.J., Docket No. 18-0830 (issued January 10, 2019). 

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

presumed to have been received. This is called the mailbox rule. See C.Y., Docket No. 18-0263 (issued 

September 14, 2018). Appellant did not submit evidence of nondelivery of OWCP’s February 7, 2018 hearing notice 

such that the presumption of receipt would be rebutted.

8 See supra note 6; see also R.S., Docket No. 15-1358 (issued December 4, 2015).
4

ORDER

IT IS HEREBY ORDERED THAT the March 21, 2018 decision of the Office of 

Workers’ Compensation Program is affirmed.

Issued: March 1, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy 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