J.W. and Department of Veterans Affairs, Veterans Health Administration, Philadelphia, PA (Board decision, January 23, 2023)

ECAB final decision. The Board affirmed OWCP's January 24, 2022 finding that the worker abandoned his hearing request. The Board did not review the underlying continuation of pay denial. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A VA nurse with an accepted COVID-19 claim requested a telephone hearing after OWCP denied continuation of pay. OWCP mailed a hearing notice to his address of record at least 30 days before the scheduled date. He did not call in, request a postponement, or explain his absence in writing within the following 10 days. The Board held that OWCP properly treated the hearing request as abandoned. It did not decide whether the nurse was entitled to continuation of pay.

Decision snapshot

• Authority: OWCP hearing notice and abandonment rules, 20 C.F.R. §§ 10.617(b), 10.622(f).
• Outcome: January 24, 2022 hearing abandonment decision affirmed; continuation of pay merits not reviewed.
• Key point: A claimant who misses a properly noticed hearing must request another hearing within 10 days and show good cause.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.W., Appellant
)
)
and ) Docket No. 22-1094
) Issued: January 23, 2023
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS HEALTH ADMINISTRATION,
)
Philadelphia, PA, 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 JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 15, 2022 appellant filed a timely appeal from a January 24, 2022 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed from the last merit decision, dated February 2, 2021, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.

ISSUE

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

FACTUAL HISTORY

On June 26, 2020 appellant, then a 54-year-old nurse, filed a traumatic injury claim (Form CA-1) alleging that on April 27, 2020 he contracted COVID-19 when working with COVID-19

1
5 U.S.C. § 8101 et seq. positive patients during a severe outbreak while in the performance of duty. By decision dated July 23, 2020, OWCP accepted appellant’s claim for COVID-19.

By decision dated February 2, 2021, OWCP denied appellant’s claim for continuation of pay (COP), finding that he failed to report the accepted April 27, 2020 employment injury on a form approved by OWCP within 30 days, as required. It further noted that the decision did not affect appellant’s entitlement to other disability benefits or compensation for wage loss due to the accepted April 27, 2020 employment injury.

On February 26, 2021 appellant requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review.

In a December 10, 2021 notice, OWCP’s hearing representative informed appellant that it had scheduled a telephonic hearing for January 14, 2022 at 9:30 a.m. Eastern Standard Time (EST). The notice provided a toll-free number and appropriate passcode for access to the hearing. The hearing representative mailed the notice to his last known address of record. Appellant did not appear for the hearing and no request for postponement was made.

By decision dated January 24, 2022, OWCP’s hearing representative found that appellant had abandoned his request for an oral hearing as he had received written notification of the hearing 30 days in advance, but failed to appear. 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 within 10 days after 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 a hearing is sought. 2 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. 3 OWCP has the burden of proving that it properly mailed to a claimant and any representative of record a notice of a scheduled hearing. 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

2
20 C.F.R. § 10.616(a).
3
Id. at § 10.617(b).
4
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).

2 to appear at the second scheduled hearing without good cause shown, shall constitute abandonment of the request for a hearing.5

ANALYSIS

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

Following OWCP’s February 2, 2021 decision denying appellant’s request for COP, he filed a timely request for an oral hearing before a representative of OWCP’s Branch of Hearings and Review. In a December 10, 2021 notice, OWCP’s Branch of Hearings and Review notif ied him that it had scheduled a telephonic hearing for January 14, 2022 at 9:30 a.m. EST. The hearing notice was properly mailed to appellant’s last known address of record and provided instructions on how to participate. 6 The Board has held that absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is presumed to have been received. This is called the mailbox rule. 7 As appellant failed to call in to the scheduled hearing and failed to request a postponement or explain his failure to appear in writing within 10 days of the scheduled hearing, the Board finds he abandoned his request for an oral hearing. 8

CONCLUSION

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

5
20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter 2.1601.6(g) (September 2020); A.J., Docket No. 18-0830 (issued January 10, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018). 6 E.S., Docket No. 19-0567 (issued August 5, 2019).
7
L.L., Docket No. 21-1194 (issued March 18, 2022); V.C., Docket No. 20-0798 (issued November 16, 2020); L.T., Docket No. 20-1539 (issued August 2, 2021). 8 Id.

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 ORDER

IT IS HEREBY ORDERED THAT the January 24, 2022 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: January 23, 2023
Washington, DC

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

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

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

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