D.O. and U.S. Postal Service, Post Office, Corpus Christie, TX (Board decision, May 18, 2016)

ECAB final decision on a hearing request. The Board affirmed OWCP’s finding that D.O. abandoned her request for a hearing. The Board did not review the merits of her injury claim. 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

D.O., a Postal Service mail carrier, requested a telephone hearing after OWCP denied her injury claim. OWCP mailed notice of the hearing to her address of record, but she did not call in at the scheduled time or request another hearing within 10 days. The Board affirmed the finding that she abandoned her hearing request. It could not review the merits of the earlier injury denial because the appeal of that decision was too late.

Decision snapshot

• Authority: 5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.622(f).
• Outcome: October 29, 2015 finding of hearing request abandonment affirmed; injury claim merits not reviewed.
• Key point: Failure to join the scheduled hearing or timely ask for another one constituted abandonment.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

_______
)
D.O., Appellant
)
)
and ) Docket No. 16-0676
)
Issued: May 18, 2016
U.S. POSTAL SERVICE, POST OFFICE, )
Corpus Christie, TX, Employer
)
_______ )

Appearances: Case Submitted on the Record
Juan Mũnoz, for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 22, 2016 appellant, through her representative, timely appealed an October 29, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days has elapsed from January 30, 2015, the date of the most recent merit decision, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of appellant’s claim.

ISSUE

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

1
Appellant’s representative indicated that he was appealing a January 30, 2015 OWCP merit decision. However, an appeal of office decisions issued on or after November 19, 2008 must be filed with 180 days of the decision. 20 C.F.R. § 501.3(e). The 180th day following January 30, 2015 was July 29, 2015. As this appeal was filed on February 22, 2016, the Board lacks jurisdiction over the January 30, 2015 merit decision. 2 5 U.S.C. § 8101 et seq.
 FACTUAL HISTORY

On December 3, 2014 appellant, then a 41-year-old mail carrier, filed a traumatic injury claim (Form CA-1), alleging that on November 22, 2014 she was side swiped by a truck and sustained lower and upper back stiffness and pain while in the performance of duty. She did not initially stop work. The employing establishment noted that appellant never complained of back problems, was seen by the emergency room physician, and was medically cleared.

By letter dated December 22, 2014, OWCP advised appellant that the evidence failed to establish an injury in the performance of duty. It allotted her 30 days to submit appropriate factual and medical evidence. OWCP mailed this to appellant’s address of record. Appellant did not respond within the allotted time.

In a January 30, 2015 decision, OWCP denied appellant’s claim, finding that the evidence of record did not establish that the injury occurred as alleged. It explained that appellant did not complete the questionnaire describing how her injury had occurred or otherwise provide any factual evidence of an injury occurring at work.

On February 26, 2015 appellant timely requested a telephonic hearing before an OWCP hearing representative. She argued that she had submitted the proper paperwork for her claim. Appellant also indicated that she did not receive the questionnaire or she would have provided the requested information.

In an August 27, 2015 letter, OWCP notified appellant that a telephone hearing was scheduled for October 14, 2015 at 10:45 a.m. Eastern Standard Time (EST). It instructed her to call a toll-free number and enter a pass code to connect with the hearing representative. The record reflects that the notice was mailed to appellant’s address of record.

Appellant did not call at the appointed time for the scheduled hearing.

By decision dated October 29, 2015, OWCP found that appellant abandoned her requested hearing. The decision noted that the hearing was scheduled for October 14, 2015, but she failed to appear as instructed. OWCP further found that there was no indication that appellant contacted it either prior or subsequent to the scheduled hearing to explain her failure to participate. Based on these factors, it concluded that she abandoned her hearing request.

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.3 Unless otherwise directed in writing by the claimant, the hearing representative will mail a notice of the

3
Id. at § 8124(b)(1); 20 C.F.R. § 10.616(a).

2 time and place of the hearing to the claimant and any representative at least 30 days before the scheduled date.4

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. 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.5 Where it has been determined that a claimant has abandoned his or her request for a hearing, OWCP’s Branch of Hearings and Review will issue a formal decision.6

ANALYSIS

By decision dated January 30, 2015, OWCP denied appellant’s claim for a traumatic injury. On February 26, 2015 appellant timely requested a telephone hearing.

In an August 27, 2015 letter, OWCP notified appellant that a telephone hearing was scheduled for October 14, 2015 at 10:45 a.m. EST. It mailed the notice to her address of record.7 OWCP instructed appellant to call a toll-free number and enter a pass code to connect with the hearing representative. Appellant did not call at the appointed time. She did not request a postponement of the hearing or explain her failure to appear at the hearing within 10 days of the scheduled hearing date of October 14, 2015.8 The Board therefore finds that she abandoned her request for a hearing.

On appeal appellant argues the merits of her claim. She also argues that she did not receive OWCP’s December 22, 2014 development letter advising her of the deficiencies in her claim. However, the only issue before the Board is whether OWCP properly found that appellant abandoned her request for a hearing. The Board does not have jurisdiction over the merits of the claim.

CONCLUSION

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

4
20 C.F.R. § 10.617(b).
5
Id. at § 10.622(f).
6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.6(g) (October 2011).
7
See Jeffrey M. Sagrecy, 55 ECAB 724 (2004) (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”). 8 Id. See also supra note 5.

3
 ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated October 29, 2015 is affirmed.

Issued: May 18, 2016
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

4