E.O. and U.S. Postal Service, Post Office, Boston, MA (Board decision, August 6, 2013)

ECAB final decision. The Board affirmed OWCP’s finding that E.O. abandoned her hearing request after missing the scheduled hearing without a timely request for another. It did not review the underlying termination of benefits. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

E.O., a postal carrier, asked for a hearing after OWCP ended her compensation benefits. OWCP mailed a hearing notice to her address of record more than 30 days before the scheduled date. She did not appear and did not ask for another hearing within the following 10 days. The Board held that OWCP properly treated the hearing request as abandoned. It did not address whether the earlier termination of benefits was correct because that merits decision was outside the Board’s appeal period.

Decision snapshot

• Authority: 20 C.F.R. § 10.622(f), the rule for a missed OWCP hearing.
• Outcome: October 11, 2012 hearing-abandonment decision affirmed; benefit termination not reviewed.
• Key point: After missing a properly noticed hearing, the claimant had 10 days to request another hearing.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.O., Appellant
)
)
and ) Docket No. 13-872
) Issued: August 6, 2013
U.S. POSTAL SERVICE, POST OFFICE,
)
Boston, MA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Vincent A. Murray, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On March 1, 2013 appellant, through her attorney, filed a timely appeal of an October 11, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) finding that she abandoned her hearing request.1 As more than 180 days elapsed from OWCP’s most merit decision on April 30, 2012,2 to the filing of this appeal on March 1, 2013, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit decision.

1
On appeal appellant and counsel contend that she did not attend the hearing because she did not receive notice of a scheduled oral hearing. The Board finds that these explanations were not submitted in a timely fashion to OWCP either before the scheduled hearing or within the 10-day period after the scheduled hearing. As they were not before OWCP at the time it issued its October 11, 2012 decision, the Board is precluded from reviewing them for the first time on appeal. See 20 C.F.R. § 501.2(c)(1). 2 An appeal of final adverse OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. See 20 C.F.R. § 501.3(e).
3
5 U.S.C. § 8101 et seq.
ISSUE

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

FACTUAL HISTORY

OWCP accepted that appellant, then a 30-year-old letter carrier, sustained a lumbar muscle spasm, right shoulder contusion and right hip contusion in the performance of duty on December 24, 2010. Appellant received appropriate medical and wage-loss compensation benefits.

By decision dated April 30, 2012, OWCP terminated appellant’s compensation benefits effective that day.

On May 22, 2012 appellant requested an oral hearing before an OWCP hearing representative.

In a July 30, 2012 letter, OWCP’s Branch of Hearings and Review notified appellant that it scheduled an oral hearing for 9:15 a.m. local time on September 12, 2012. It provided her with an address in Boston, Massachusetts for the hearing. OWCP advised appellant that postponement of the hearing would only be permitted upon receipt of documentation showing her nonelective hospitalization or that the death of a spouse, parent or child prevented her attendance. The notice was mailed to her address of record.

On September 12, 2012 appellant failed to participate in the video teleconference hearing.

By decision dated October 11, 2012, an OWCP hearing representative found that appellant failed to appear at the hearing and had abandoned her request. There was no evidence that she contacted OWCP prior to or subsequent to the scheduled hearing.

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 upon writing to the address specified in the decision within 30 days of the date of the decision for which a hearing is sought.4 Unless otherwise directed in writing by the claims examiner, an OWCP 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.5 OWCP has the burden of proving that it mailed notice of a scheduled hearing to a claimant.6 Section 10.622(f) of OWCP regulations provide that a claimant who fails to appear at a scheduled hearing may request in writing within 10 days after

4
5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).
5
20 C.F.R. § 10.617(b).
6
See M.B., Docket No. 10-1077 (issued March 17, 2011).

2 the date set for the hearing that another hearing be scheduled.7 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. 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. 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 has abandoned his or her request for a hearing.8

ANALYSIS

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

The record establishes that on July 30, 2012, in response to appellant’s timely request for an oral hearing, the Branch of Hearings and Review mailed an appropriate notice of the scheduled hearing to be held on September 12, 2012 at 9:15 a.m. local time in Boston, Massachusetts. The hearing notice was properly mailed to appellant’s last known address of record. As the Board has held, in the absence of evidence to the contrary, a letter properly addressed and mailed in the due course of business is presumed to have arrived at the mailing address in due course. This is known as the mailbox rule.9 The Board finds that the notice was sent more than 30 days prior to the scheduled hearing date of September 12, 2012. The record establishes that appellant did not appear at the appointed time. Further, she did not request a postponement of the hearing prior to September 12, 2012 or explain her failure to appear at the hearing within 10 days of the scheduled hearing. Thus, the Board finds that appellant abandoned her request for a hearing.

On appeal appellant, through her attorney, argues the merits of her claim. As noted above, more than 180 days have lapsed from the issuance of OWCP’s last merit decision dated April 30, 2012 to the filing of the current appeal on March 1, 2013; therefore, the Board has no jurisdiction over the merits of this case.10 Thus, the arguments are not substantiated.

CONCLUSION

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

7
20 C.F.R. § 10.622(f).
8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.6(g) (October 2011).
9
See, e.g., Kenneth E. Harris, 54 ECAB 502 (2003).
10
See supra notes 2-3.

3
ORDER

IT IS HEREBY ORDERED THAT the October 11, 2012 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: August 6, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

4