R.P. and Department of Labor, Bureau of Labor Statistics, Chicago, IL (Board decision, April 16, 2021)

ECAB final decision. The Board reversed OWCP's finding that R.P. abandoned his hearing request. The underlying injury claim was not decided in this order. The Board's order becomes final 30 days after issuance under 20 C.F.R. § 501.6(d); a party may petition for reconsideration within 30 days unless the order specifies another period, under § 501.7(a).

Plain-English summary

R.P., a Bureau of Labor Statistics worker, requested a hearing after OWCP denied his injury claim. He told OWCP before the hearing was scheduled that military duty and family leave would make him unavailable during the summer and asked for a date after September 15, 2019. OWCP scheduled a June hearing anyway, then treated his absence as abandonment. The Board found that he had given advance notice explaining why he could not attend. It reversed the abandonment decision without ruling on the injury claim.

Decision snapshot

• Authority: OWCP hearing-abandonment procedure in its FECA Procedure Manual, chapter 2.1601.6(g).
• Outcome: Hearing-abandonment decision reversed; injury claim not adjudicated by the Board.
• Key point: The existing record showed advance notice of the scheduling conflict.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.P., Appellant
)
)
and ) Docket No. 20-0207
) Issued: April 16, 2021
DEPARTMENT OF LABOR, BUREAU OF
)
LABOR STATISTICS, Chicago, IL, Employer
)
__________ )

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

ORDER REVERSING CASE

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

On November 4, 2019 appellant filed a timely appeal from a June 24, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 20-0207.

On September 14, 2018 appellant, then a 34-year-old economic assistant, filed a traumatic injury claim (Form CA-1) alleging that on July 24, 2018 he was physically and verbally assaulted and battered by a resident of an apartment complex while conducting housing surveys while in the performance of duty. On the reverse side of the claim form, the employing establishment indicated that appellant was injured in the performance of duty on July 24, 2018.

In a development letter dated November 20, 2018, OWCP informed appellant that additional evidence was needed to establish his claim. It advised him of the type of factual and medical evidence necessary and attached a questionnaire for his completion. OWCP provided 30 days for appellant to submit the requested evidence.

OWCP received evidence in response to the November 20, 2018 development letter.

By decision dated January 10, 2019, OWCP denied appellant’s traumatic injury claim, finding that the evidence of record was insufficient to establish that appellant was injured in the performance of duty, as alleged. It concluded, therefore, that the requirements had not been met to establish an injury as defined by FECA.

On February 6, 2019 appellant requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

An April 22, 2019 memorandum of telephone call (Form CA-110) indicated that appellant was concerned about the scheduling of his oral hearing date, and advised that he would not be available June through August due to military deployment. OWCP suggested that he send his request in writing with as many details as possible and added that it would be considered.

In an April 22, 2019 letter, appellant requested that his oral hearing be scheduled after September 15, 2019 in order to accommodate his military training in the summer and his Family and Medical Leave Act (FMLA) leave after his military training due to the upcoming birth of his child in the beginning of September. He stated that if his hearing was scheduled between June and August he would not be available due to his military leave, and he related that he attached reservation dates.

An April 25, 2019 Form CA-110 indicated that OWCP confirmed with appellant that partial documents were received regarding his request to delay his oral hearing, and it advised that the additional evidence he mentioned in his statement needed to be submitted prior to its final response. Appellant stated that he was working on submitting the evidence.

In an April 29, 2019 Form CA-110, OWCP informed appellant that the information currently on file was insufficient to grant a postponement. It further advised that if his claim was in posture for hearing it would be scheduled in June 2019.

On May 9, 2019 OWCP informed appellant that it scheduled his hearing date for June 10, 2019 at 10:30 a.m. Eastern Time and supplied the toll free number and passcode.

By decision dated June 24, 2019, OWCP determined that appellant had abandoned his request as he failed to appear at the June 10, 2019 oral hearing. It indicated that he had received written notice of the hearing 30 days in advance, and that he failed to appear for the oral hearing. OWCP further noted that there was no indication in the record that appellant had contacted it either prior to or subsequent to the scheduled hearing to explain his failure to appear.

The Board has duly considered the matter and finds that OWCP improperly determined that appellant had abandoned his request for hearing.

OWCP’s found in its June 24, 2019 decision that there was no indication in the record that appellant had contacted it either prior to or subsequent to the June 10, 2019 scheduled hearing to explain his failure to appear. However, an April 22, 2019 Form CA-110 indicated that appellant called OWCP concerned about the scheduling of his oral hearing date and indicated that he would not be available June through August due to military deployment. In an April 22, 2019 letter, appellant requested that his oral hearing be scheduled after September 15, 2019 in order to accommodate his military training in the summer and subsequent FMLA leave. An April 25, 2019 Form CA-110 indicated that OWCP confirmed with appellant that documents were received

2 regarding his request to delay his oral hearing. OWCP, however, proceeded to schedule his hearing for June, 10, 2019 when he would be unavailable due to military deployment and FMLA leave.

As the circumstances of this case do not meet the criteria for abandonment as provided in Chapter 2.1601.6(g) of OWCP’s procedures, the Board finds that appellant did not abandon his request for an oral hearing.1

IT IS HEREBY ORDERED THAT the June 24, 2019 decision of the Office of Workers’ Compensation Programs is reversed.

Issued: April 16, 2021
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

1
Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.6(g) (October 2011); see also N.P., Docket No. 09-2263 (issued May 17, 2010).

3