S.C. and U.S. Postal Service, Post Office, Jackson, GA (Board decision, September 13, 2016)

ECAB remand decision. The Board set aside OWCP’s March 3, 2015 abandonment finding and remanded for a new oral hearing with proper notice. The underlying emotional condition claim remains unresolved. 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

S.C., a postal employee, requested an oral hearing after OWCP denied his emotional condition claim. OWCP mailed the hearing notice, but it was returned as undeliverable before the scheduled date. OWCP nevertheless treated his absence as abandonment of the request. The Board held that the returned notice defeated the usual presumption of delivery and directed OWCP to schedule another hearing with proper notice.

Decision snapshot

• Authority: FECA hearing request provision, 5 U.S.C. § 8124(b).
• Outcome: March 3, 2015 abandonment decision set aside and remanded for a new hearing.
• Key point: A returned hearing notice did not provide sufficient notice to find abandonment.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.C., Appellant
)
)
and ) Docket No. 15-0941
) Issued: September 13, 2016
U.S. POSTAL SERVICE, POST OFFICE,
)
Jackson, GA, Employer
)
__________ )

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

ORDER REMANDING CASE

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

On March 24, 2015 appellant filed an application for review of a March 3, 2015 decision the Office of Workers’ Compensation Programs (OWCP) which found that he had abandoned his request for an oral hearing. The appeal was docketed as No. 15-0941.

The Board has duly considered the matter and finds that the case is not in posture for a decision and must be remanded to OWCP. On July 14, 2014 OWCP denied appellant’s claim for an emotional condition. On August 8, 2014 appellant requested an oral hearing received by OWCP on August 13, 2014. By letter dated January 8, 2015, OWCP advised him that a telephonic oral hearing was scheduled for 10:00 a.m. on February 10, 2015. However, on January 26, 2015, its January 8, 2015 letter was returned as undeliverable. By decision dated March 3, 2015, OWCP found that appellant had abandoned his request for an oral hearing, as he failed to appear for the hearing, and that there was no indication in the file that he had contacted OWCP either prior or subsequent to the scheduled hearing to explain his failure to appear. On appeal, appellant contends that he did not receive notice of the oral hearing.

Section 10.617(b) of OWCP’s regulations require OWCP to mail a notice of the time and place of the hearing to appellant at least 30 days before the scheduled date.1 OWCP has the 1 20 C.F.R. § 10.617(b). Under the Federal Employees’ Compensation Act 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. 5 U.S.C.
§ 8124(b)(1); 20 C.F.R. § 10.616(a).
burden of proving that it mailed a notice of a scheduled hearing to appellant.2 Under the mailbox rule, 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.3 However, as a rebuttable presumption, receipt will not be assumed when there is evidence of nondelivery.4 On January 18, 2015 OWCP’s January 8, 2015 letter advising appellant of the date and time of the telephonic oral hearing was returned as undeliverable. Thus, the Board finds that the mailbox rule does not apply and that OWCP did not provide appellant sufficient notice of the scheduled telephonic hearing.5 For this reason, the case will be remanded to OWCP for scheduling of another hearing before an OWCP hearing representative with proper notice provided to all parties. Following this and any necessary further development, OWCP shall issue an appropriate decision. Accordingly,

IT IS HEREBY ORDERED THAT the March 3, 2015 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further action consistent with this order of the Board.

Issued: September 13, 2016
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2
See Michelle R. Littlejohn, 42 ECAB 463 (1991).
3
See Michelle Lagana, 52 ECAB 187 (2000).
4
See M.C., Docket No. 15-0479 (issued April 21, 2015); C.O., Docket No. 10-1796 (issued March 23, 2011); M.U., Docket No. 09-0526 (issued September 14, 2009). 5 Id.

2