United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Cincinnati, OH, Employer

__________________________________________

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Docket No. 19-1484

Issued: January 13, 2020

Appearances: Case Submitted on the Record

Alisha Williams, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On July 1, 2019 appellant, through his representative, filed a timely appeal from a 

January 3, 2019 merit decision and a June 4, 2019 nonmerit decision of the Office of Workers’

Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this 

case.3

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish an injury 

causally related to the accepted November 2, 2018 employment incident; and (2) whether OWCP 

properly determined that appellant had abandoned his request for an oral hearing before an OWCP 

hearing representative.

FACTUAL HISTORY

On November 20, 2018 appellant, then a 49-year-old motor vehicle operator, filed a 

traumatic injury claim (Form CA-1) alleging that on November 2, 2018 he was involved in a workrelated motor vehicle accident (MVA) and sustained injuries to his right hand, neck, and head

while in the performance of duty. On the reverse side of the claim form, the employing 

establishment acknowledged that he was in the performance of duty at the time of the claimed 

incident. 

In a November 27, 2018 development letter, OWCP advised appellant of the deficiencies 

of his claim and advised him of the type of factual and medical evidence necessary to establish 

entitlement to FECA benefits. It noted that no firm diagnosis of a work-related condition had been 

provided by a physician. OWCP also asked appellant to complete a questionnaire to provide 

further details regarding the circumstances of the claimed November 2, 2018 employment injury. 

It afforded him 30 days to submit the necessary evidence. 

OWCP did not receive additional evidence. 

By decision dated January 3, 2019, OWCP accepted that the November 2, 2018 

employment incident occurred as alleged, but denied appellant’s traumatic injury claim because 

the evidence of record did not include medical evidence containing a diagnosis in connection with 

the accepted employment incident. As such, it found that he had not established the medical 

component of fact of injury.

On January 30, 2019 appellant requested a telephonic hearing with a representative of 

OWCP’s Branch of Hearings and Review.

On February 19, 2019 OWCP received additional factual information and medical 

documentation, which included: a November 2, 2018 employing establishment motor vehicle 

 

3 The Board notes that following the June 4, 2019 decision, OWCP received additional evidence. 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.
3

accident report; a similarly dated Ohio traffic crash report; November 2, 2018 emergency 

department treatment records; and November 5, 2018 work restrictions report.

4

OWCP also received a statement from appellant dated January 30, 2019. Appellant

explained that on November 2, 2018 he was preparing to make a right turn when an oncoming 

vehicle made a left turn in front of him. Due to weather conditions, he was unable to avoid 

colliding with the right side of the oncoming vehicle. Appellant experienced pain and swelling in 

his sternum and chest, a bruise on his forehead, and what felt like a broken wrist. He further 

indicated that, after returning his work vehicle to the employing establishment garage, he 

immediately sought medical treatment at the employing establishment’s emergency department. 

Appellant stated that he had no similar symptoms prior to this injury.

In an April 19, 2019 letter, OWCP’s hearing representative notified appellant that a 

telephonic hearing was scheduled for May 21, 2019 at 10:00 a.m. Eastern Standard Time (EST).

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

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

By decision dated June 4, 2019, OWCP’s hearing representative determined that appellant 

abandoned his request for an oral hearing. He indicated that appellant had received 30-day advance 

written notice of the hearing scheduled for May 21, 2019, and that he failed to appear. The hearing 

representative further noted that there was no indication in the record that appellant contacted 

OWCP either prior to or subsequent to the scheduled hearing to explain his failure to appear. 

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

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA5 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation of FECA,6that an injury was sustained in the performance of duty as alleged, and 

that any disability or medical condition for which compensation is claimed is causally related to 

the employment injury.7 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8

 

4 Appellant received a provisional diagnosis of unspecified injury of the right wrist, hand, and finger(s). He was 

restricted from performing any heavy lifting with the right arm/wrist, but was able to perform his driving duties. 

5

Id.

6

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D. 

Cameron, 41 ECAB 153 (1989). 

7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

8 R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990). 
4

To determine if an employee sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether fact of injury has been established.9 Fact of injury 

consists of two components that must be considered in conjunction with one another. The first 

component is whether the employee actually experienced the employment incident that allegedly 

occurred.10 The second component is whether the employment incident caused a personal injury.11

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.12 A physician’s opinion on whether there is a causal relationship 

between the diagnosed condition and the implicated employment incident must be based on a 

complete factual and medical background.13 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty and must be supported by medical 

rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s 

specific employment incident.

14

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish an injury 

causally related to the accepted November 2, 2018 employment incident.

When appellant filed his Form CA-1 on November 20, 2018, he did not provide medical 

evidence with respect to his claimed head, neck, and right hand injuries. On November 27, 2018 

OWCP advised him of the deficiencies in his claim and afforded him 30 days to submit the 

requested factual and medical evidence. However, appellant did not respond. OWCP 

subsequently accepted that the November 2, 2018 employment-related MVA occurred as alleged, 

but denied appellant’s traumatic injury claim because the record was devoid of medical evidence 

demonstrating a diagnosis in connection with the accepted employment incident. As noted, fact 

of injury consists of two components.15 In this instance, appellant failed to timely submit medical 

evidence to establish that the employment incident caused a personal injury.16 Accordingly, the 

Board finds that appellant has not met his burden of proof to establish an injury causally related to 

the accepted November 2, 2018 employment incident.

 

9 E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008). 

10 L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

11 B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

12 E.M., supra note 9; Robert G. Morris, 48 ECAB 238 (1996). 

13 M.V., Docket No. 18-0884 (issued December 28, 2018).

14 Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

15 See supra note 11.

16 While OWCP subsequently received additional evidence, the Board’s review is limited to the evidence of record 

at the time OWCP issued its January 3, 2019 final decision. 20 C.F.R. § 501.2(c)(1). For review of new evidence 

appellant should file a request for reconsideration with OWCP.
5

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607. 

LEGAL PRECEDENT -- ISSUE 2

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.17 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.18 OWCP has the burden of proving that 

it properly mailed to a claimant and any representative of record a notice of a scheduled hearing.19

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.20

ANALYSIS -- ISSUE 2

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 3, 2019 decision, appellant filed a timely request for an oral 

hearing before a representative of OWCP’s Branch of Hearings and Review. In an April 19, 2019 

letter, OWCP’s hearing representative notified him that a telephonic hearing was scheduled for 

May 21, 2019 at 10:00 a.m. EST and properly mailed the hearing notice to appellant’s last known 

address of record.

21

 Appellant failed to participate in the scheduled hearing. He also did not 

request a postponement or provide an explanation to OWCP for his failure to participate in the 

 

17 20 C.F.R. § 10.616(a).

18 Id. at § 10.617(b).

19 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).

20 20 C.F.R. § 10.622(f); 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).

21 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 April 19, 2019 hearing notice 

such that the presumption of receipt would be rebutted.
6

hearing within 10 days of the scheduled hearing.22 Thus, the Board finds that OWCP properly 

determined that appellant abandoned his request for a telephonic hearing.23

On appeal appellant’s representative explained that the reason he was unable to participate 

in the May 21, 2019 telephonic hearing was because his mother had been hospitalized on 

May 9, 2019. As noted above, appellant received proper notice of the scheduled hearing and did 

not timely request a postponement of the hearing or provide the basis for his failure to participate 

as was required. Thus, the Board finds that appellant abandoned his request for an oral hearing.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish an injury 

causally related to accepted November 2, 2018 employment incident. The Board further 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 4 and January 3, 2019 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: January 13, 2020

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

 

22 E.S., Docket No. 19-0567 (issued August 5, 2019).

23 R.S., supra note 20.