United States Department of Labor

Employees’ Compensation Appeals Board

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D.H., Appellant

and

U.S. POSTAL SERVICE, Albuquerque, NM, 

Employer

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Docket No. 21-0276

Issued: July 16, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On December 14, 2020 appellant filed a timely appeal from a September 15, 2020 nonmerit 

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

have elapsed from OWCP’s last merit decision, dated April 30, 2020, 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that OWCP received additional evidence following the September 15, 2020 decision. 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 had abandoned his request 

for an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

FACTUAL HISTORY

On March 12, 2020 appellant, then a 61-year-old mail processing clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on December 13, 2019, he felt a sharp pain in his right 

knee when training and loading mail while in the performance of duty. On the reverse side of the 

claim form appellant’s supervisor contended that appellant was not at work on December 13, 2019

and that his claim was filed more than 30 days following the date of the alleged injury.

In a development letter dated March 17, 2020, OWCP advised appellant that it did not 

receive any documentation with his claim form. It requested that he submit a narrative medical 

report from his attending physician, which included the physician’s opinion supported by a 

medical explanation as to how the reported employment incident caused or aggravated a diagnosed 

medical condition. OWCP also attached a questionnaire for his completion. It afforded appellant 

30 days to submit the necessary evidence.

In an April 14, 2020 response, appellant alleged that on or about December 13, 2020, as he 

was training for his new job and loading a machine, which required him to twist 90 degrees, in so 

doing he felt a sharp pain in his right knee. He explained that he initially believed gout was the 

cause of his pain, but later learned that the pain was not due to gout as he had incorrectly been 

diagnosed. Appellant explained that a February 29, 2019 magnetic resonance imaging (MRI) scan 

confirmed that he had a torn right knee medial meniscus and realized it was attributed to the 

twisting action of loading mail onto the machine. He stated that his initial injury occurred on or 

about December 13, 2019, but he may have requested leave on that day due to pain. Appellant

also stated that the injury could have occurred December 8, 9, or 13, 2019.

A February 26, 2020 MRI scan diagnosed a tear in the posterior horn and body of the 

medial meniscus in appellant’s right knee.

OWCP received a letter dated April 10, 2020 from Dr. Dennis Garcia, Board-certified in 

family practice, who indicated that appellant fell at work in October 2019, which possibly resulted 

in the injury to his right knee. Dr. Garcia diagnosed a posterior horn medial meniscus tear as well 

as a moderate sized Baker’s cyst and tricompartmental arthritis. He also related that appellant 

could not tolerate any prolonged standing, bending, or twisting and that he would need surgery.

By decision dated April 30, 2020, OWCP denied appellant’s claim, finding that the medical 

evidence of record was insufficient to establish a diagnosed condition causally related to the 

accepted December 13, 2019 employment incident.

On May 29, 2020 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review.
3

On July 27, 2020 OWCP’s Branch of Hearings and Review informed appellant that his oral 

hearing was scheduled for August 27, 2020 at 1:00 p.m. Eastern Standard Time (EST). He was 

instructed to call the toll-free telephone number and enter the passcode provided when prompted. 

It mailed the notice to his last known address of record. Appellant did not appear for the hearing 

and no request for postponement of the hearing was made. 

By decision dated September 15, 2020, OWCP’s hearing representative found that 

appellant had abandoned his hearing request. The hearing representative indicated that appellant 

received 30 days’ advance notice of the hearing scheduled for August 27, 2020 and found that 

there was no evidence that he had contacted OWCP either prior to, or subsequent to, the scheduled 

hearing to request a postponement or 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.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 proof to 

establish 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 

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

The record establishes that on July 27, 2020, 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 scheduled for August 27, 2020 at 1:00 p.m. EST. The 

hearing notice was mailed to appellant’s last known address of record and provided instructions 

 

3 20 C.F.R. § 10.616(a).

4

Id. at § 10.616(b).

5

J.H., Docket No. 20-0023 (issued September 16, 2020); T.R., Docket No. 19-1952 (issued April 24, 2020); R.C., 

59 ECAB 521 (2008).

6 Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter 

2.1601.6(g) (September 2020); J.H., id.
4

on how to participate. Appellant failed to call-in for the scheduled telephonic hearing. 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 hearing.

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the September 15, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 16, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board