United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.P., Appellant

and

DEPARTMENT OF DEFENSE, NATIONAL 

SECURITY AGENCY, Fort Meade, MD, 

Employer

__________________________________________

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Docket No. 19-0589

Issued: July 25, 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

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 17, 2019 appellant filed a timely appeal from a July 20, 2018 nonmerit decision 

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

from OWCP’s last merit decision, dated October 31, 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 July 19, 2017 appellant, then a 60-year-old administrative services specialist, filed a 

traumatic injury claim (Form CA-1) alleging that on April 4, 2017 she experienced shoulder 

inflammation during a closed-caption presentation she attended in excess of two and one-half 

hours without a break. No evidence was submitted with her claim. The employing establishment 

controverted the claim.

OWCP, in a development letter dated September 27, 2017, advised appellant of the 

deficiencies in her claim. It advised her of the type of factual and medical evidence needed and 

provided a questionnaire for her completion. OWCP afforded appellant 30 days to respond. No 

response was received.

By decision dated October 31, 2017, OWCP denied appellant’s traumatic injury claim

finding that the evidence of record failed to establish that the events occurred on April 4, 2017, as 

alleged.

On November 2, 2017 appellant responded to OWCP’s September 27, 2017 development 

questionnaire. She provided a narrative of what tasks she was performing and how she believed 

the injury occurred.

In an appeal request form dated and postmarked November 30, 2017, appellant requested 

an oral hearing with a representative of OWCP’s Branch of Hearings and Review regarding the 

October 31, 2017 decision. In a March 9, 2018 letter, an OWCP hearing representative notified 

appellant that OWCP’s Branch of Hearings and Review had scheduled a hearing for April 25, 2018 

at 12:30 p.m., and provided her the location of the hearing. The hearing notice was mailed to 

appellant’s address of record.

In a letter dated March 28, 2018, Counsel Avery M. Muller advised OWCP that he had 

been authorized to represent appellant and requested a copy of her case file. He enclosed an 

authorization for representation signed by appellant on March 23, 2018.

In a letter dated April 3, 2018, OWCP’s hearing representative notified counsel that, based 

on their telephone conversation on that day, the scheduled in-person hearing was changed to a 

telephonic hearing.3 The telephonic hearing was scheduled for the same date and time. The 

hearing representative advised counsel that, pursuant to their telephonic conversation, she would 

call his office at the designated time and that appellant would be present at his office. This letter 

was returned to OWCP as undeliverable as addressed and unable to forward.

 

3 A copy of this letter was also mailed to appellant.
3

In a record of a telephone conversation dated April 17, 2018, counsel informed OWCP’s

hearing representative that he was withdrawing his representation of appellant, but indicated that 

she still wanted to have a hearing. He requested postponement of the April 25, 2018 telephonic 

hearing because appellant would be incapacitated due to nonelective surgery which was scheduled 

for April 21, 2018. By letter dated April 17, 2018, counsel informed OWCP’s hearing

representative that “I am representing [appellant] in the above-referenced workers’ compensation 

claim.” He requested that she reschedule the April 25, 2018 telephonic hearing, explaining that 

appellant was undergoing abdominal surgery on April 21, 2018, unrelated to her workers’

compensation claim. Counsel noted that she would be incapacitated for four to six weeks 

following the surgical procedure. He submitted supportive medical evidence. In a record of a 

telephone conversation dated April 18, 2018, appellant also requested that OWCP’s hearing

representative reschedule her telephonic hearing due to her April 21, 2018 surgery.

In a June 5, 2018 letter, OWCP’s hearing representative notified appellant that OWCP’s 

Branch of Hearings and Review had scheduled a telephonic hearing for July 9, 2018 at 10:00 a.m. 

Eastern Standard Time (EST). The hearing notice was again 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 July 20, 2018, OWCP’s hearing representative determined that appellant 

had abandoned her request for a telephonic hearing, which had been scheduled for July 9, 2018.

She found that appellant had been afforded notice 30 days prior to the scheduled hearing and that

appellant had failed to attend. The hearing representative further found that there was no indication 

that she contacted the Branch of Hearings and Review either before or after the scheduled hearing 

to explain her absence.

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.4 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.5 OWCP has the burden of proving that

it properly mailed the notice to a claimant and any representative of record of a scheduled hearing.6

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

 

4 20 C.F.R. § 10.616(a).

5

Id. at § 10.617(b).

6 T.P., Docket No. 15-0806 (issued September 11, 2015).
4

to appear at the second scheduled hearing without good cause shown,shall constitute abandonment

of the request for a hearing.7

ANALYSIS

The Board finds that OWCP improperly determined that appellant abandoned her request 

for a telephonic hearing before an OWCP hearing representative.

Following OWCP’s October 31, 2017 decision denying appellant’s traumatic injury claim, 

she timely requested an oral hearing before a representative of OWCP’s Branch of Hearings and 

Review, but subsequently had her request changed to a telephonic hearing. The record reflects 

that on March 28, 2018 counsel informed OWCP that she had authorized his representation in 

matters related to her claim. In a subsequent record of a telephone conversation dated April 17, 

2018, he notified OWCP’s hearing representative that he was withdrawing his representation of 

appellant. However, counsel also informed the same hearing representative, in a letter of the same 

date, that “I am representing [appellant] in the above-referenced workers’ compensation claim.” 

In a June 5, 2018 letter, OWCP’s hearing representative notified appellant that a telephonic hearing 

was scheduled for July 9, 2018, at 10:00 a.m. EST. The Board finds that there is no written 

confirmation from counsel that he had withdrawn his representation. The only evidence of a 

purported withdrawal was the notes of a telephone conversation (Form CA-110) as written by the 

hearing representative. Therefore, based on counsel’s April 17, 2018 letter, which specifically 

indicated that he continued to represent appellant, OWCP was required to send him a copy of the 

June 5, 2018 notice of the scheduled telephonic hearing.8

The Board further finds that, while the record establishes that OWCP properly mailed the 

June 5, 2018 telephonic hearing notice to appellant at her last known address of record,

9

it does 

not establish that the hearing notice was mailed to counsel. The copy of the notice sent to appellant 

does not, on its face, reflect that a copy was sent to counsel’s address of record. There is no 

indication in the record that OWCP sent the hearing notice to him. For these reasons, the Board 

finds that counsel was not notified of the date and time of the scheduled telephonic hearing 

pursuant to 20 C.F.R. § 10.617(b).10 Accordingly, the case is remanded to OWCP for scheduling 

 

7 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).

8 20 C.F.R. § 10.617(b).

9 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 M.R., Docket No. 18-1643 (issued March 1, 

2019); C.Y., Docket No. 18-0263 (issued September 14, 2018). Appellant did not submit evidence of nondelivery of 

OWCP’s June 5, 2018 hearing notice such that the presumption of receipt would be rebutted.

10 See Connie L. Sauerwein, Docket No. 04-1227 (issued June 13, 2005) (where the Board remanded the case to 

provide appellant an opportunity for a hearing when the record failed to demonstrate that his representative was 

notified of the scheduled hearing).
5

of another hearing before a representative of OWCP’s Branch of Hearings and Review with proper 

notice provided to all parties, including counsel.

11

CONCLUSION

The Board finds that OWCP improperly determined that appellant abandoned her request 

for a telephonic hearing before an OWCP hearing representative.

ORDER

IT IS HEREBY ORDERED THAT the July 20, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: July 25, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

11 Id.