W.W. III and U.S. Postal Service, Greensprings Carrier Facility, Birmingham, AL (Board decision, September 29, 2022)

ECAB final decision. The Board affirmed OWCP's determination that the claimant abandoned his oral hearing request. It did not review the merits of the increased schedule award claim. 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

A postal carrier requested a hearing after OWCP denied an increase to his permanent impairment award. The Board found that OWCP mailed notice of a telephone hearing to his address of record and that he neither appeared nor asked within 10 days for another hearing or explained his absence. It affirmed OWCP's finding that he abandoned the hearing request without reviewing the impairment claim. The official release gives the hearing time as 10:00 p.m. in its factual history and 10:00 a.m. in its analysis; it does not resolve that discrepancy.

Decision snapshot

• Authority: Hearing notice and abandonment rules, 20 C.F.R. §§ 10.617(b), 10.622(f).
• Outcome: Abandonment determination affirmed; increased schedule award claim not reviewed.
• Key point: Failure to appear and request a replacement hearing within 10 days supported the abandonment finding on the Board's account, although the release gives inconsistent hearing times.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board
________
)
W.W. III, Appellant
)
)
and ) Docket No. 22-0589
) Issued: September 29, 2022
U.S. POSTAL SERVICE, GREENSPRINGS
)
CARRIER FACILITY, Birmingham, AL,
)
Employer
)
__________ )

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

DECISION AND ORDER

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

JURISDICTION

On March 11, 2022 appellant filed a timely appeal from a January 19, 2022 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days has elapsed from the last merit decision, dated August 18, 2021, 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 to review the merits of this case.

1
The Board notes that, following the January 19, 2022 decision, OWCP received additional evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. 2 5 U.S.C. § 8101 et seq.

ISSUE

The issue is whether OWCP properly determined that appellant abandoned his request for an oral hearing.

FACTUAL HISTORY

On September 13, 2011 appellant, then a 39-year-old city carrier, filed a traumatic injury claim (Form CA-1) alleging that on September 12, 2011 his vehicle was rear ended injuring his neck, lower back, both shoulders, both wrists, and his coccyx while in the performance of duty. He stopped work on September 13, 2011. OWCP accepted the claim for sprain of the neck, contusion of the shoulder and upper arm, and bilateral contusion of the back. 3 Appellant returned to light-duty work on November 1, 2011 and OWCP paid him wage-loss compensation on the supplemental rolls due to medical appointments. He returned to full-time light-duty work on July 18, 2013.

By decision dated May 7, 2014, OWCP granted appellant a schedule award for 12 percent permanent impairment of his right upper extremity (shoulder).

Subsequently, appellant requested an increased schedule award.

After further development, by decision dated August 18, 2021, OWCP denied appellant’s claim for an increased schedule award. On September 2, 2021 appellant requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

In a December 1, 2021 letter, OWCP’s hearing representative notified appellant that he had scheduled a telephonic hearing for January 5, 2022 at 10:00 p.m. Eastern Standard Time (EST). The notice included a toll-free number to call and provided the appropriate passcode and instructions on how to participate. The hearing representative mailed the notice to appellant’s last known address of record. Appellant did not appear for the hearing and no request for postponement was made.

By decision dated January 19, 2022, OWCP determined that appellant had abandoned his request for an oral hearing. It further found that there was no indication in the case record that he had contacted the Branch of Hearings and Review either prior to or subsequent to the scheduled hearing to explain his failure to appear.

LEGAL PRECEDENT

A claimant who has received a final adverse decision by OWCP may obtain a hearing by writing to the address specified in the decision within 30 days of the date of the decision for which

3
OWCP assigned the present claim OWCP File No. xxxxxx536. It previously accepted appellant’s April 9, 2005 traumatic injury claim for a right wrist sprain under OWCP File No. xxxxxx813. OWCP later accepted a right wrist sprain under OWCP File No. xxxxxx829 due to a May 23, 2006 employment injury. Its File Nos. xxxxxx536, xxxxxx829, and xxxxxx813 have been administratively combined by OWCP, with the latter serving as the master file.

2

a hearing is sought. 4 Unless otherwise directed in writing by the claimant, OWCP’s hearing representative will mail a notice of the time and place of the hearing to the claimant and any representative at least 30 days before the scheduled date. 5 OWCP has the burden of proving that it properly mailed to a claimant and any representative of record a notice of a scheduled hearing. 6

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. 7

ANALYSIS

The Board finds that OWCP properly determined that appellant abandoned his request for an oral hearing.

Following OWCP’s January 19, 2022 decision, appellant filed a timely request for an oral hearing before a representative of OWCP’s Branch of Hearings and Review. In a December 1, 2021 letter, the hearing representative notified appellant that a telephonic hearing was scheduled for January 5, 2022 at 10:00 a.m. EST. The hearing notice was properly mailed to appellant’s last known address of record 8 and included a toll-free number to call and provided the appropriate passcode and instructions on how to participate. There is no evidence of nondelivery of the hearing notice. However, appellant failed to appear for the scheduled hearing and he did not request a postponement or provide an explanation to OWCP for his failure to appear within 10 days of the scheduled hearing. 9 The Board, thus, finds that OWCP properly determined that he abandoned his request for an oral hearing. 10

4
20 C.F.R. § 10.616(a).
5
Id. at § 10.617(b).
6
H.C., Docket No. 22-0047 (issued May 25, 2022); C.H., Docket No. 21-0024 (issued November 29, 2021); T.R., Docket No. 19-1952 (issued April 24, 2020); M.R., Docket No. 18-1643 (issued March 1, 2019); T.P., Docket No. 15-0806 (issued September 11, 2015); Michelle R. Littlejohn, 42 ECAB 463 (1991). 7 20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter 2.1601.6g (September 2020); A.J., Docket No. 18-0830 (issued January 10, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018). 8 H.C., supra note 6; E.S., Docket No. 19-0567 (issued August 5, 2019).
9
See A.J., supra note 7.
10
See E.S., supra note 8.

3

CONCLUSION

The Board finds that OWCP properly determined that appellant abandoned his request for an oral hearing.

ORDER

IT IS HEREBY ORDERED THAT the January 19, 2022 decision of the Office of Workers’ Compensation Programs is affirmed

Issued: September 29, 2022
Washington, DC

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

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

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

4