United States Department of Labor

Employees’ Compensation Appeals Board

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J.W., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS,

VETERANS HEALTH ADMINISTRATION,

Philadelphia, PA, Employer

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Docket No. 22-1094

Issued: January 23, 2023

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, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 15, 2022 appellantfileda timely appealfroma January 24, 2022 nonmerit decision

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

from the last merit decision, dated February 2, 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 his request for 

an oral hearing.

FACTUAL HISTORY

On June 26, 2020 appellant, then a 54-year-old nurse, filed a traumatic injury claim (Form 

CA-1) alleging that on April 27, 2020 he contracted COVID-19 when working with COVID-19 

1

5 U.S.C. § 8101 et seq.
2

positive patients during a severe outbreak while in the performance of duty. By decision dated 

July 23, 2020, OWCP accepted appellant’s claim for COVID-19. 

By decision dated February 2, 2021, OWCP denied appellant’s claim for continuation of 

pay (COP), finding that he failed to report the accepted April 27, 2020 employment injury on a 

form approved by OWCP within 30 days, as required. It further noted that the decision did not 

affect appellant’s entitlement to other disability benefits or compensation for wage loss due to the 

accepted April 27, 2020 employment injury.

On February 26, 2021 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review.

In a December 10, 2021 notice, OWCP’s hearing representative informed appellant that it 

had scheduled a telephonic hearing for January 14, 2022 at 9:30 a.m. Eastern Standard Time 

(EST). The notice provided a toll-free number and appropriate passcode for access to the hearing. 

The hearing representative mailed the notice to his last known address of record. Appellant did 

not appear for the hearing and no request for postponement was made.

By decision dated January 24, 2022, OWCP’s hearing representative found that appellant 

had abandoned his request for an oral hearing as he had received written notification of the hearing 

30 days in advance, but failed to appear. It further found that there was no indication in the case 

record that he had contacted the Branch of Hearings and Review either prior to or within 10 days 

after 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.2 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.3 OWCP has the burden of proving that 

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

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

2

20 C.F.R. § 10.616(a).

3

Id. at § 10.617(b).

4 C.H., Docket No. 21-0024 (issued November 29, 2021); T.R., Docket No. 19-1952 (issued April24, 2020); M.R., 

Docket No. 18-1643 (issued March 1, 2019); T.P., Docket No. 15-0806 (issued September 11, 2015); MichelleR. 

Littlejohn, 42 ECAB 463 (1991).
3

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

of the request for a hearing.

5

ANALYSIS

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

an oral hearing.

Following OWCP’s February 2, 2021 decision denying appellant’s request for COP, he 

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

and Review. In a December 10, 2021 notice, OWCP’s Branch of Hearings and Review notified 

him that it had scheduled a telephonic hearing for January 14, 2022 at 9:30 a.m. EST. The hearing 

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

on how to participate.6 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.7 As appellant failed to call in to the scheduled hearing and failed to 

request a postponement or explain his failure to appear in writing within 10 days of the scheduled 

hearing, the Board finds he abandoned his request for an oral hearing.8

CONCLUSION

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

an oral hearing.

5

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) (September 2020); A.J., Docket No. 18-0830 (issued January 10, 2019); L.B., Docket 

No. 18-0533 (issued August 27, 2018).

6 E.S., Docket No. 19-0567 (issued August 5, 2019).

7 L.L., Docket No. 21-1194 (issued March 18, 2022); V.C., Docket No. 20-0798 (issued November 16, 2020);L.T., 

Docket No. 20-1539 (issued August2, 2021).

8

Id.
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ORDER

IT IS HEREBY ORDERED THAT the January 24, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 23, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board