J.W. and Department of the Navy, Puget Sound Naval Shipyard, Bremerton, WA (Board decision, November 26, 2012)

ECAB final decision on a hearing request. The Board affirmed OWCP's December 1, 2011 finding that J.W. abandoned his oral hearing request. The underlying injury merits were not decided here. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

J.W., a Navy shipyard employee, requested an oral hearing on his claim. OWCP mailed notice to his address more than thirty days before the scheduled date. He did not appear or timely explain the absence. The Board affirmed the abandonment finding.

Decision snapshot

• Authority: FECA oral hearing attendance.
• Outcome: December 1, 2011 abandonment finding affirmed.
• Key point: The hearing notice was proper and the absence was not timely explained.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.W., Appellant
)
)
and
)
) Docket No. 12-1309
DEPARTMENT OF THE NAVY, ) Issued: November 26, 2012
PUGET SOUND NAVAL SHIPYARD,
)
Bremerton, WA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On May 29, 2012 appellant filed a timely appeal of a December 1, 2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) finding that he had abandoned his request for an oral hearing. OWCP issued its last merit decision on July 13, 2011. As more than 180 days elapsed from that merit decision to the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.

ISSUE

This issue is whether OWCP properly determined that appellant abandoned his request for an oral hearing.

On appeal, appellant contends that an unforeseen urgent matter required his attention out of state and he was unable to attend the hearing.

1
5 U.S.C. § 8101 et seq.
FACTUAL HISTORY

On April 18, 2005 appellant, then a 35-year-old electrician, filed an occupational disease claim alleging a wrist condition due to his work using sawsalls and retracting cable cutters. On June 9, 2005 OWCP accepted appellant’s claim for bilateral wrist strains. It later approved appellant’s claim for a lesion of the ulnar nerve. On May 12, 2006 appellant underwent a right ulnar nerve decompression with medial epicondylectomy. OWCP paid appellant wage-loss compensation and medical benefits. The employing establishment separated appellant from its rolls effective November 16, 2006 due to his inability to perform assigned duties for medical reasons.

By decision dated July 13, 2011, OWCP suspended appellant’s compensation as it found that he had refused to participate in vocational rehabilitation in good faith.

On July 26, 2011 appellant requested an oral hearing before an OWCP hearing representative. By letter dated October 6, 2011, to appellant’s address of record, the Branch of Hearings and Review informed appellant that an oral hearing had been scheduled for his case on November 9, 2011 at 12:30 p.m. in Seattle, Washington. Appellant did not attend.

By decision dated December 1, 2011, OWCP’s hearing representative found that appellant failed to appear at the November 9, 2011 hearing. She further noted that there was no evidence of record that he contacted OWCP either prior to or subsequent to the scheduled hearing to explain his failure to appear. Accordingly, the hearing representative found that appellant abandoned his request for a hearing.

LEGAL PRECEDENT

A claimant who has received a final adverse decision by OWCP may obtain a hearing by writing 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 mailed to appellant and his representative a notice of a scheduled hearing.4

2
20 C.F.R. § 10.616(a).
3
Id. at 10.617(b). OWCP’s regulations also provide that notice of a hearing should be mailed to the claimant and the claimant’s authorized representative at least 30 days prior to the scheduled hearing. Id. 4 See Michelle R. Littlejohn, 42 ECAB 463, 465 (1991); see also K.D., Docket No. 11-77 (issued August 18, 2011).

2
The authority governing abandonment of hearings rests with OWCP’s regulations, which provides in pertinent part at section 10.622(f):5

“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….”

ANALYSIS

The record establishes that on October 6, 2011, in response to appellant’s request for an oral hearing, the Branch of Hearings and Review mailed an appropriate notice of the scheduled hearing to appellant’s address of record. The Board notes that the notice was sent to his address of record more than 30 days before the scheduled hearing date of November 9, 2011, and there is no contention that he did not receive it.6 The issue is thus, whether OWCP properly found that appellant had abandoned the hearing.

The record establishes that appellant failed to appear for the hearing scheduled for November 9, 2011 or request a postponement prior to that date. The record establishes that he failed to contact OWCP within 10 days after the scheduled hearing to explain his failure to appear. Although appellant argues on appeal that he could not attend the hearing as an urgent matter required his attention out of state, he did not make this argument in a timely fashion to OWCP either before or after the scheduled hearing. As appellant failed to appear for the oral hearing and did not establish good cause for his absence, the hearing representative properly found that appellant abandoned his request for an oral hearing.

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); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter 2.16016(g) (October 2011).
6
It is presumed, in the absence of evidence to the contrary, that a notice mailed to an individual in the ordinary course of business was received by that individual. This presumption arises when it appears from the record that the notice was properly addressed and duly mailed. This is called the “mailbox rule.” Michele Lagana, 52 ECAB 187 (2000); Levi Drew, Jr., 52 ECAB 442 (2001).

3
ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated December 1, 2011 is affirmed.

Issued: November 26, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

4