United States Department of Labor

Employees’ Compensation Appeals Board

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M.M., Appellant

and

U.S. POSTAL SERVICE, CURSEEN-MORRIS 

PROCESSING & DISTRIBUTION CENTER, 

Washington, DC, Employer

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Docket No. 19-0665

Issued: September 15, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 4, 2019 appellant filed a timely appeal from a December 3, 2018 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

has elapsed between the last merit decision, dated June 8, 2018, to the filing of this appeal, pursuant 

to the Federal Employees’ Compensation Act2(OWCP) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board lacks jurisdiction over the merits of this case.3

 

1 Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated September 8, 

2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately 

be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-0665 (issued 

September 8, 2020).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the issuance of the December 3, 2018 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.
2

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 May 3, 2018 appellant, then a 54-year-old mail handler, filed a traumatic injury claim 

(Form CA-1) alleging that on February 22, 2016 he injured his left shoulder when he lifted a heavy 

mail sack while in the performance of duty. The employing establishment controverted the claim, 

contending that he was on leave on February 22, 2016 and had not reported an injury to his direct 

supervisor.

In support of his claim, appellant provided a series of reports dated from May 2, 2016 to 

September 19, 2017 by Dr. Vincent G. Desiderio, a Board-certified orthopedic surgeon, who 

diagnosed a superior labral tear from anterior to posterior (SLAP) tear of the left rotator cuff and 

moderate left acromioclavicular joint arthritis. Dr. Desiderio noted work restrictions.

In a development letter dated May 18, 2018, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of factual and medical evidence needed to establish his 

claim and provided a questionnaire for his completion. OWCP afforded appellant 30 days to 

provide the necessary evidence. 

In response, appellant submitted May 28 and June 6, 2018 statements asserting that he 

informed E.S., his direct supervisor, of his left shoulder injury immediately after its occurrence. 

E.S. then consulted another supervisor for filing a FECA claim. Appellant accepted a modifiedduty assignment on May 23, 2018.

In a June 8, 2018 statement, Coworker J.B. noted that during the night shift from Sunday, 

February 21, 2016 into Monday morning, February 22, 2016, appellant advised that he injured his 

left shoulder while lifting a heavy mail sack. He noted that appellant then spoke to supervisor E.S. 

Dr. Desiderio opined in a June 12, 2018 report that the February 22, 2016 lifting incident 

at work exacerbated appellant’s preexisting left shoulder conditions. 

By decision dated June 18, 2018, OWCP accepted that the February 22, 2016 employment 

incident occurred, as alleged, but found that the evidence of record was insufficient to establish a 

diagnosed medical condition causally related to the accepted employment incident.

On June 29, 2018 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. 

In an October 3, 2018 notice, OWCP’s hearing representative informed appellant that the 

requested oral hearing was scheduled for November 8, 2018, at 2:15 p.m. Eastern Standard Time 

(EST). OWCP instructed him to “call the toll free number listed below and when prompted, enter 

the passcode.” It mailed the notice to appellant’s last known address of record. Appellant did not 

appear for the hearing and no request for postponement of the hearing had been made.
3

By decision dated December 3, 2018, OWCP determined that appellant had abandoned his 

request for a hearing. It found that appellant had received written notice of the scheduled hearing 

30 days in advance, but failed to appear for the oral hearing. OWCP further found that there was 

no indication in the record that appellant had contacted the Branch of Hearings and Review either 

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

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, 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.5 OWCP has the burden of proof to 

establish that it properly mailed to a claimant and any representative of record a notice 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. 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.7

ANALYSIS

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

an oral hearing before an OWCP hearing representative.

The record establishes that, on October 3, 2018, in response to appellant’s timely request 

for an oral hearing, a representative of OWCP’s Branch of Hearings and Review properly mailed 

a notice of the scheduled telephonic hearing to be held on November 8, 2018 at 2:15 p.m. EST.

Appellant, however, failed to call-in for the 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. The Board thus finds that 

OWCP properly determined that appellant abandoned his request for a telephonic oral hearing.8

On appeal appellant contends that he did not receive proper notice of the scheduled hearing. 

However, the record establishes that OWCP mailed the hearing notice to appellant’s last known 

 

4 20 C.F.R. § 10.616(a).

5

Id. at § 10.617(b).

6 T.R., Docket No. 19-1952 (issued April 24, 2020); 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).

7 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); K.J., Docket No. 20-0414 (issued July 30, 2020); A.J., Docket No. 

18-0830 (issued January 10, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018).

8

Id.
4

address of record. The Board has held that 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.9 Appellant did not submit evidence of nondelivery of OWCP’s hearing 

notice such that the presumption of receipt would be rebutted. 

CONCLUSION

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

an oral hearing before an OWCP hearing representative.

ORDER

IT IS HEREBY ORDERED THAT the December 3, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 15, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

9 K.J., supra note 7; see C.Y., Docket No. 18-0263 (issued September 14, 2018).