C.R. and Department of Veterans Affairs, Veterans Administration Medical Center, Milwaukee, WI (Board decision, December 9, 2015)

ECAB remand decision. The Board set aside OWCP’s May 26, 2015 finding that C.R. abandoned his oral hearing request and directed OWCP to reschedule the hearing. The underlying injury claim remains undecided on this appeal. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

C.R. requested a telephone hearing after OWCP denied his traumatic injury claim. OWCP mailed the hearing notice to a street address with a different number from the one he supplied, and he did not appear. The Board held that the usual presumption of receipt did not apply to an incorrectly addressed notice. It set aside OWCP’s abandonment finding and directed the agency to schedule another oral hearing.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.617(b).
• Outcome: May 26, 2015 hearing abandonment finding set aside; case remanded.
• Key point: OWCP could not treat a missed hearing as abandoned when it sent notice to the wrong address.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.R., Appellant
)
)
and ) Docket No. 15-1409
) Issued: December 9, 2015
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Milwaukee, WI, 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 ALEC J. KOROMILAS, Alternate Judge

On June 16, 2015 appellant filed a timely appeal from a May 26, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) which found that he abandoned his request for an oral hearing. The Board docketed the appeal as No. 15-1409.

The Board has duly considered the matter and finds that the case is not in posture for decision. On October 14, 2014 OWCP denied appellant’s traumatic injury claim. Appellant requested a telephonic oral hearing before the Branch of Hearings and Review on October 16, 2014. He indicated his street address as 10350 Plumtree Circle. On March 25, 2015 OWCP issued a notice of hearing, stating that the hearing would be held on May 5, 2015. It mailed the notice to a differently numbered street address. Appellant did not appear at the hearing, and on May 26, 2015 OWCP found that he abandoned his request for a hearing.

The record evidence reveals that OWCP’s March 25, 2015 notice of hearing was not sent to appellant’s proper address. Section 10.617(b) of OWCP’s regulations requires 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 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 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 In the instant case, the notice of hearing was sent to an incorrect address. Accordingly, the Board finds that appellant was not provided proper notice of his hearing under OWCP’s regulations.5 The case will be remanded to OWCP for rescheduling of the requested oral hearing.

IT IS HEREBY ORDERED THAT the May 26, 2015 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings consistent with this decision.

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).
2
See Michelle R. Littlejohn, 42 ECAB 463 (1991).
3
See M.U., Docket No. 09-526 (issued September 14, 2009).
4
Id.
5
20 C.F.R. supra note 1; N.W., Docket No. 11-1026 (issued November 25, 2011).

2
Issued: December 9, 2015
Washington, DC

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

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

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

3