M.A. and U.S. Postal Service, Morgan Processing & Distribution Center, New York, NY (Board decision, November 25, 2014)

ECAB final decision. The Board set aside OWCP’s March 11, 2014 hearing abandonment decision and remanded M.A.’s case for a new hearing notice. Under 20 C.F.R. § 501.6(d), this Board order becomes final 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

M.A. sought a hearing after OWCP denied her recurrence claim, but OWCP treated the hearing request as abandoned when she did not appear. She said she never received the hearing notice. The Board found that OWCP had mailed the notice without a zip code, so the usual presumption that a properly mailed notice was received did not apply. It set aside the abandonment decision and directed OWCP to reschedule the hearing with proper notice, leaving the recurrence claim's merits for later.

Decision snapshot

• Authority: Hearing notice under 20 C.F.R. §§ 10.617(b) and 10.622(c).
• Outcome: March 11, 2014 abandonment decision set aside; hearing to be rescheduled.
• Key point: A hearing notice missing the zip code did not establish proper notice to M.A.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.A., Appellant
)
)
and ) Docket No. 14-1070
) Issued: November 25, 2014
U.S. POSTAL SERVICE, MORGAN
)
PROCESSING & DISTRIBUTION CENTER,
)
New York, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Tom Mullahey, for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On April 8, 2014 appellant, through her representative, filed an application for review of a decision of the Office of Workers’ Compensation Programs (OWCP) dated March 11, 2014 in which an OWCP hearing representative found that appellant abandoned a scheduled hearing and an October 23, 2013 decision in which OWCP denied a recurrence of disability. The appeal was docketed as No. 14-1070.1

In correspondence dated and postmarked November 21, 2013, appellant requested an oral hearing from the October 23, 2013 decision. In a notice dated January 2, 2014 and addressed to appellant’s address of record but without a zip code, OWCP advised her that a telephonic hearing would be held in her case on February 3, 2014 at 10:00 a.m. Eastern time. It provided instructions to appellant as to how to access the hearing. In a March 11, 2014 decision, OWCP 1 On September 23, 2010 appellant, a mail hander, filed a traumatic injury claim alleging that she injured her lower back picking up trays of mail. She stopped work that day. OWCP accepted that she sustained lumbosacral neuritis or radiculitis. Appellant was placed on the periodic compensation rolls. Based on the opinion of Dr. Hormozan Aprin, a Board-certified orthopedic surgeon and OWCP referral physician, the employing establishment offered her a modified mail handler position for four hours a day, that she accepted on May 23, 2013. Appellant began part-time modified duty on June 3, 2013. On June 13, 2013 she filed a recurrence claim, stating that her work duties caused incapacitating back pain. found that appellant had abandoned her request for a hearing. The decision noted that the record contained no indication that she contacted OWCP either prior or subsequent to the scheduled hearing to explain her failure to appear.

On appeal, appellant asserts that she did not receive the notice of hearing. The Board has duly considered the matter and finds that the case is not in posture for decision as the record supports that the Branch of Hearings and Review failed to properly issue the notice of hearing.

OWCP regulations and procedures provide that the Branch of Hearing and Review shall mail appropriate written notice 30 days prior to a scheduled hearing.2 Under the mailbox rule, it is presumed, in the absence of evidence to the contrary, that a notice properly mailed to an individual in the ordinary course of business was received by that individual. This presumption arises where it appears from the record that the notice was properly addressed and duly mailed.3 The presumption of receipt does not apply where a notice is sent to an incorrect address.4 As the January 2, 2014 notice of hearing, was not properly mailed (lacking the zip code), the Board finds that appellant was not provided proper notice of her hearing under section 10.617(b) of its regulations.

Thus, the case will be remanded to reschedule the hearing, giving her proper notice.5

2
20 C.F.R. § 10.622(c); Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.1601.6.b (March 2011).
3
M.U., Docket No. 09-526 (issued September 14, 2009).
4
Id.
5
The Board notes that, based on the posture of this order, it would be premature to address the merits of appellant’s recurrence claim.

2
 IT IS HEREBY ORDERED THAT the March 11, 2014 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded to OWCP for further action in conformance with this order of the Board.

Issued: November 25, 2014
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3