United States Department of Labor

Employees’ Compensation Appeals Board

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J.C., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

ROCKY MOUNTAIN REGIONAL VA 

MEDICAL CENTER, Aurora, CO, Employer

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Docket No. 23-0090

Issued: June 27, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On October 29, 2022 appellant filed a timely appeal from a June 22, 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 22, 2022, 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 abandoned his request for 

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

FACTUAL HISTORY

On February 11, 2022 appellant, then a 43-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that he contracted COVID-19 on December 23, 2021 while in the 

performance of duty. On the reverse side of the claim form, the employing establishment 

1

5 U.S.C. § 8101 et seq.
2

acknowledged that appellant was in the performance of duty when he contracted COVID-19. He 

stopped work on December 23, 2021 and returned to work on January 7, 2022.

On February 15, 2022 the employing establishment controverted continuation of pay 

(COP) asserting that the injury was not reported on a form approved by OWCP within 30 days of 

the injury.

By decision dated February 22, 2022, OWCP denied appellant’s claim for COP, finding 

that he had not reported the December 23, 2021 injury on an OWCP-approved form within 30 days 

of the date of injury. It further noted that the decision affected only his entitlement to COP and 

did not affect his entitlement to other compensation benefits.

In a statement dated March 2, 2022, K.B., a nurse manager, confirmed that appellant was 

exposed to COVID-19 on or around December 23, 2021, and lost five days of work for a total of 

56 hours due to his illness. 

On March 17, 2022 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review.

In an April 20, 2022 notice, OWCP’s hearing representative informed appellant that his 

oral hearing was scheduled for June 1, 2022 at 10:20 a.m. Eastern Standard Time (EST). She 

provided a toll-free number and pass code for access to the hearing. The hearing representative 

mailed the notice to appellant’s last known address of record. Appellant neither appeared for the

telephonic hearing, nor requested postponement of the hearing.

By decision dated June 22, 2022, OWCP’s hearing representative found that appellant had 

abandoned his request for an oral hearing as he had received written notice of the hearing 30 days 

in advance but failed to appear. She further noted that there was no indication in the record that 

he 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.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 proof to 

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

scheduled hearing.4

2

20 C.F.R. § 10.616(a).

3

Id. at § 10.617(b).

4 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); Michelle R. Littlejohn, 42 ECAB 463 (1991).
3

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.5

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.

Following OWCP’s February 22, 2022 decisiondenying the claim for COP, appellant filed 

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

Review. In an April 20, 2022 letter, OWCP’s hearing representative notified him that she had 

scheduled a telephonic hearing for June 1, 2022 at 10:20 a.m., EST. She mailed the hearing notice 

to appellant’s last known address of record and provided instructions on how to participate. 

However, appellant failed to call in for the scheduled hearing and 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.6 The Board thus finds that OWCP properly determined that appellant 

abandoned his request for an oral hearing.7

On appeal appellant contends that he did not receive the April 20, 2022 letter before the 

scheduled hearing on June 1, 2022. However, 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 There is no evidence in the record 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 his request for 

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

5

20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 --Claims, Hearings and Review of the Written 

Record, Chapter 2.1601.6g (October 2011); 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

Supra note 5.

8

See C.Y., Docket No. 18-0263 (issued September 14, 2018).
4

ORDER

IT IS HEREBY ORDERED THAT the June 22, 2022 decision of the Office of Workers’

Compensation Programs is affirmed. 

Issued: June 27, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board