D.E. and Department of Homeland Security, Transportation & Safety Administration, Bentonville, AR (Board decision, November 19, 2010)

ECAB final decision. The Board affirmed OWCP’s finding that D.E. abandoned her request for a hearing. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

D.E., a transportation security officer, sought a telephone hearing after OWCP denied her work injury claim. OWCP scheduled the hearing and provided instructions for joining by telephone. She did not request a postponement, call for the hearing, or explain her absence within 10 days. The Board held that all three conditions for abandonment were met and affirmed OWCP’s decision. It did not decide whether the underlying injury claim should be accepted.

Decision snapshot

• Authority: Hearing procedure under 5 U.S.C. § 8124(b)(1).
• Outcome: February 19, 2010 OWCP abandonment decision affirmed; underlying injury claim not reviewed.
• Key point: Failure to attend or promptly explain the absence supported the abandonment finding.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.E., Appellant
)
)
and ) Docket No. 10-1221
) Issued: November 19, 2010
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION & SAFETY
)
ADMINISTRATION, Bentonville, AR, Employer )
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On March 30, 2010 appellant, through her representative, filed a timely appeal from the February 19, 2010 nonmerit decision of the Office of Workers’ Compensation Programs, which found that she abandoned her request for a hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the Office’s decision.

ISSUE

The issue is whether appellant abandoned her request for a hearing.

FACTUAL HISTORY

On August 18, 2009 appellant, then a 32-year-old transportation security officer (screener), filed a claim for compensation alleging that she twisted her right arm and shoulder in the performance of duty when she reached for a passenger’s passport. On September 28, 2009 the Office denied her claim on the grounds that the medical evidence did not establish the element of causal relationship. On October 23, 2009 appellant’s representative requested a telephone hearing before an Office hearing representative. The hearing representative scheduled the hearing for January 27, 2010.

In a decision dated February 19, 2010, the Office hearing representative found that appellant had abandoned her request for a hearing. The hearing representative found that she failed to appear and that there was no indication that she contacted the Office either before or after the scheduled hearing to explain her failure to appear.

LEGAL PRECEDENT

Section 8124(b)(1) of the Federal Employees’ Compensation Act provides:

“Before review under section 8128(a) of this title, a claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of this section is entitled, on request made within 30 days after the date of the issuance of the decision, to a hearing on his claim before a representative of the Secretary.”1

A hearing can be considered abandoned only under very limited circumstances. All three of the following conditions must be present: the claimant has not requested a postponement; the claimant has failed to appear at a scheduled hearing; and the claimant has failed to provide any notification for such failure within 10 days of the scheduled date of the hearing. Under these circumstances, the hearing representative will issue a formal decision finding that the claimant has abandoned his or her request for a hearing and return the case to the district Office.2

ANALYSIS

Appellant made a timely request for a hearing before an Office hearing representative, and the hearing representative properly notified her of the date of the scheduled hearing, together with instructions on calling the toll-free number and entering the provided pass code. Appellant did not request a postponement, she failed to appear (or telephone as instructed), and she failed to provide any notification for such failure within 10 days of the date of the hearing. Given the presence of all three conditions necessary for abandonment, the hearing representative properly issued a formal decision finding that appellant abandoned her request for a hearing. The Board will therefore affirm the Office’s February 19, 2010 decision.

CONCLUSION

The Board finds that appellant abandoned her request for a hearing.

1
5 U.S.C. § 8124(b)(1).
2
Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.6.e. (January 1999).

2
 ORDER

IT IS HEREBY ORDERED THAT the February 19, 2010 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: November 19, 2010
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

3