United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Santa Clarita, CA, Employer

__________________________________________

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Docket No. 22-0362

Issued: July 29, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 12, 2022 appellant filed a timely appeal from an August 26, 2021 nonmerit 

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

elapsed from the last merit decision, dated March 23, 2021, 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.

ISSUE

The issue is whether OWCP properly determined that appellant abandoned her request for 

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

FACTUAL HISTORY

On February 16, 2021 appellant, then a 36-year-old postal distribution clerk, filed a 

traumatic injury claim (Form CA-1) alleging that on January 16, 2021 she sustained a bone 

1

5 U.S.C. § 8101 et seq.
2

contusion on her right middle finger when her hand became smashed between two casters as she 

was staging casters on a machine while in the performance of duty. 

In support of her claim, appellant submitted reports dated January 16 through February 12, 

2021 from Narin Phuong, a physician assistant, Matthew Bonaventure, a certified physician 

assistant, Jessica Beard, a nurse practitioner, and Dr. Carlos Garrett, a Board-certified internist.

These healthcare providers diagnosed contusion of right middle finger without damage to the nail, 

initial encounter, and addressed appellant’s work capacity and restrictions.

OWCP, by development letter dated February 17, 2021, informed appellant of the 

deficiencies of her claim. It advised her of the type of additional evidence needed, including a 

medical report from a qualified physician providing a rationalized medical explanation as to how 

the reported work incident caused or aggravated a diagnosed medical condition. OWCP afforded 

appellant 30 days to respond. 

OWCP subsequently received additional reports from Ms. Beard and Mr. Bonaventure, 

who continued to diagnose contusion of right middle finger without damage to the nail, initial 

encounter, and again addressed appellant’s work capacity and restrictions. It also received reports 

from Coreen E. Fitzgerald, an occupational physical therapist, and Julie D. Moore, a certified 

occupational therapist assistant, who diagnosed the same condition and noted appellant’s work 

capacity and restrictions. 

By decision dated March 23, 2021, OWCP denied appellant’s traumatic injury claim, 

finding that the evidence of record was insufficient to establish a medical diagnosis from a 

qualified physician in connection with the accepted January 16, 2021 employment incident. It 

concluded, therefore, that the requirements had not been met to establish an injury as defined under 

FECA. 

OWCP thereafter received additional narrative reports, form reports, and a referral 

prescription dated February 3 through March 25, 2021 fromMs. Fitzgerald, Mr. Bonaventure, and

Dr. Garrett who continued to diagnose right middle finger contusion without damage to the nail, 

initial encounter, and discussed appellant’s work capacity and restrictions. 

On April 10, 2021 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review. She submitted an additional report dated March 25, 

2021 from Dr. Garrett and a March 26, 2021 report from Ms. Beard, who restated their diagnosis 

of right middle finger without damage to the nail, initial encounter, and addressed appellant’s work 

capacity. 

OWCP also received reports dated January 30 through April 2, 2021 from Gerardo Cudich, 

a licensed acupuncturist, Dr. Anne Ngoc-Phuong Pham, a Board-certified family practitioner, and

Julie Moore, a certified occupational therapist, who diagnosed right middle finger without damage 

to the nail, initial encounter, and Mr. Bonaventure, Ms. Fitzgerald, and Dr. Garrett who reiterated

their diagnosis of the same condition. 

In a July 2, 2021 notice, OWCP’s hearing representative informed appellant that her oral 

hearing was scheduled for August 11, 2021 at 11:00 a.m. Eastern Standard Time (EST). She 

provided a toll-free number and passcode for access to the hearing. The hearing representative 
3

mailed the notice to appellant’s last known address of record. Appellant failed to appear for the 

hearing.

By decision dated August 26, 2021, OWCP found that appellant had abandoned her request 

for an oral hearing as she had received written notification of the hearing 30 days in advance, but 

failed to appear. It further noted that there was no indication in the record that she had contacted 

the Branch of Hearings and Review either prior to or after the scheduled hearing to explain her 

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 by writing to the address specified in the 

decision within 30 days of the date of the decision for which a hearingis sought.2 Unless otherwise 

directed in writing by the claimant, OWCP’s hearing representative will mail a notice of the time 

and place of the hearingto the claimant and any representative at least 30 days before the scheduled 

date.3 OWCP has the burden of proving that it properly mailed notice of the scheduled hearing to 

a claimant and any representative of record.4

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.5 

The failure of the claimant to request another hearing within 10 days, or the failure of the claimant 

to appear at the second scheduled hearingwithout 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. 6 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.7

2

20 C.F.R. § 10.616(a).

3

Id. at § 10.617(b).

4 L.L., Docket No. 21-1194 (issued March18, 2022); L.T., Docket No. 20-1539 (issued August2, 2021); V.C., 

Docket No. 20-0798 (issued November 16, 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).

5

20 C.F.R. § 10.622(f).

6

Id.

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

2.1601.6g (September 2020); see also L.L. and V.C. supra note 4; K.H., Docket No. 20-1198 (issued February 8, 

2021); A.J., Docket No. 18-0830 (issued January 10, 2019).
4

ANALYSIS

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

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

Following OWCP’s March 23, 2021 decision denying appellant’s traumatic injury claim, 

she filed a timely request for an oral hearing before a representative of OWCP’s Branch of 

Hearings and Review. In a July 2, 2021 notice, OWCP’s Branch of Hearings and Review notified 

her that it had scheduled a telephonic hearing for August 11, 2021 at 11:00 a.m. EST. OWCP 

mailed the notice to appellant’s last known 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.8 Appellant failed to call in for 

the scheduled hearing at the prescribed time. She did not request a postponement or provide an 

explanation to OWCP for failure to appear for the hearing within 10 days of the scheduled hearing. 

As appellant failed to call in to the scheduled hearing or provide notification to OWCP’s Branch 

of Hearings and Review within 10 days of the scheduled hearing explaining failure to appear, the 

Board finds that OWCP properly determined that she abandoned her request for an oral hearing.

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CONCLUSION

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

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

8

See L.L., V.C., and L.T., supra note 4.

9

Id.
5

ORDER

IT IS HEREBY ORDERED THAT the August 26, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 29, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board