United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.L., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, FEDERAL CORRECTIONAL 

INSTITUTION FAIRTON, Fairton, NJ, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

)

Docket No. 21-0564

Issued: October 12, 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

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 28, 2021 appellant filed a timely appeal from a December 2, 2020 nonmerit 

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

elapsed from OWCP’s last merit decision, dated July 28, 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.

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.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On June 15, 2020 appellant, then a 26-year-old correctional officer, filed a traumatic injury 

claim (Form CA-1) alleging that on June 8, 2020 he felt a sharp pain throughout his left leg and 

lower back, as well as tingling in his left foot, when he descended steps while in the performance 

of duty. On the reverse side of the claim form,appellant’s supervisor indicated that appellant was 

injured in the performance of duty.

In a radiology report dated June 8, 2020, Dr. David Nussbaum, a Board-certified 

neuroradiology specialist, noted that appellant had chronic lower back pain. He diagnosed mild 

levoscoliosis.

In a report dated June 9, 2020, Dr. Shahnawez Khan, a Board-certified family practice 

specialist,related that appellant was seen for a follow up of back pain that began eight months ago.

Dr. Andrew J. Rickard, a chiropractor, completed a duty status report (Form CA-17) on 

June 9, 2020 wherein he noted appellant’s work restrictions.

OWCP received a magnetic resonance imaging (MRI) scan report dated June 10, 2020 

from Dr. Khan. Dr. Khan diagnosed appellant with levoscoliosis and a mild straightening of the 

lumbar spine with loss of the lumbar lordotic curvature. He also diagnosed a L5-S1 left posterior 

paracentral inferior disc extrusion, mild left neural foraminal stenosis at L5-S1, and mild central 

spinal stenosis at L4-5.

In a development letter dated June 22, 2020, OWCP advised appellant that additional 

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

factual and medical evidence needed and provided a questionnaire for his completion. OWCP 

afforded appellant 30 days to submit the necessary evidence

In response to OWCP’s development questionnaire, appellant stated that on June 8, 2020 

he was walking down the steps of a housing unit and when he reached the landing he experienced 

immediate pain went through his back and entire left leg.

Appellant submitted an assessment dated November 16, 2019 from a registered nurse at 

the employing establishment health unit. The assessment indicated that appellant was injured on 

November 16, 2019 and had a sharp radiating pain from his lower back to his left knee.

OWCP received a letter dated July 21, 2020 from Dr. Khan, wherein he related appellant’s 

history of injury at work on June 8, 2020. Dr. Khan related that appellant walked down uneven 

stairs, which caused him to twist his back and left leg. He diagnosed mild levoscoliosis, mild loss 

of intervertebral disc height at L5, and an annular disc bulge and foraminal disc osteophyte 

complex, which resulted in a mild central spinal canal stenosis. Dr. Khan opined that appellant 

sustained a temporary reaggravation of a previously reported back condition, which disabled him 

for work from June 9 through 20, 2020.

By decision dated July 28, 2020, OWCP denied appellant’s claim, finding that the medical 

evidence of record was insufficient to establish his diagnosed medical condition was causally 

related to the accepted employment incident.
3

On August 15, 2020 appellant timely requested a telephonic hearing before a representative 

of OWCP’s Branch of Hearings and Review.

In a letter dated September 30, 2020, addressed to appellant’s last known address, OWCP’s 

hearing representative advised him that a telephonic hearing would be held on November 5, 2020 

at 12:45 p.m. Eastern Standard Time (EST). The hearing representative also provided appellant 

with a toll-free telephone number and passcode for access to the hearing. Appellant did not appear.

By decision dated December 2, 2020, OWCP’s hearing representative found that appellant 

failed to appear at the telephonic hearing and had abandoned his request. The hearing 

representative indicated that appellant received a 30-day advance notice of the hearing scheduled 

for November 5, 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

Under FECA and its implementing regulations, a claimant who has received a final adverse 

decision by OWCP is entitled to receive a hearing upon writing to the address specified in the 

decision within 30 days of the date of the decision for which a hearing is sought. Unless otherwise 

directed in writing by the claims examiner, an OWCP 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.2 OWCP has the burden of proving that it mailed notice of the scheduled hearing 

to a claimant.3 Section 10.622(f) of OWCP’s regulations provides that 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.4 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. Where good cause is shown for failure to appear at the second scheduled hearing, review 

of the matter will proceed as a review of the written record.5 Where it has been determined that a 

claimant has abandoned his or her right to a hearing, OWCP will issue a formal decision finding 

that the claimant abandoned the request for a hearing.6

2

Id. at § 10.617(b).

3 T.R., Docket No. 19-1952 (issued April24, 2020); A.R., Docket No. 19-1691 (issued February 24, 2020).

4

20 C.F.R. § 10.622(f).

5

Id.

6 T.R., supra note 3; A.J., Docket No. 18-0830 (issued January 10, 2019); Federal (FECA) Procedure Manual, Part 

2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.6(g) (October 2011).
4

ANALYSIS

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

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

The record establishes that on September 30, 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 telephonic hearing scheduled for November 5, 2020 at 12:45 p.m.EST. The 

hearing notice was mailed to his last known address of record and provided instructions on how to 

participate. Appellant failed to appear and call in for the scheduled telephonic hearing. He did 

not request a postponement or provide an explanation to OWCP for hisfailure 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.7

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the December 2, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 12, 2021

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

7

Id.