R.P. and Department of Homeland Security, U.S. Customs and Border Protection, Air and Marine Operations El Paso Air Branch (Board decision, March 8, 2024)

ECAB final decision. The Board affirmed OWCP’s decision. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A Customs and Border Protection employee requested an oral hearing after denial of a schedule award. OWCP mailed notice of the hearing to his address of record. He did not call in and did not request postponement or explain his absence within ten days. The Board affirmed OWCP’s finding that he abandoned the hearing request; it did not review the schedule award merits.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: Hearing request treated as abandoned.
• Key point: The employee neither attended nor timely explained the missed hearing.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.P., Appellant
)
)
and ) Docket No. 23-1109
) Issued: March 8, 2024
DEPARTMENT OF HOMELAND SECURITY,
)
U.S. CUSTOMS AND BORDER PROTECTION,
)
AIR AND MARINE OPERATIONS EL PASO
)
AIR BRANCH, El Paso, TX, 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
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On August 18, 2023 appellant filed a timely appeal from a July 31, 2023 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed from the last merit decision, dated December 14, 2022, 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 before a representative of OWCP’s Branch of Hearings and Review.

1
5 U.S.C. § 8101 et seq.
 FACTUAL HISTORY

On June 14, 2022 appellant, then a 54-year-old customs and border protection interdiction agent, filed an occupational disease claim (Form CA-2) alleging that he developed hearing loss and tinnitus due to factors of his federal employment including noise exposure to gun fire, airplanes, helicopters, and radio traffic in a noisy environment. He noted that he first became aware of his hearing loss and realized its relation to his federal employment on March 15, 2022. Appellant did not stop work.

By decision dated October 18, 2022, OWCP accepted appellant’s claim for bilateral sensorineural hearing loss and bilateral tinnitus.

On November 2, 2022 appellant filed a claim for compensation (Form CA-7) for a schedule award.

By decision dated December 14, 2022, OWCP denied appellant’s claim for a schedule award as he failed to establish a compensable permanent impairment of a scheduled member or function of the body.

On January 11, 2023 appellant requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review.

In a June 13, 2023 notice, OWCP’s hearing representative informed appellant that he had scheduled a telephonic hearing for July 17, 2023 at 11:30 a.m. Eastern Standard Time (EST). The notice included the toll-free telephone number and passcode for access to the hearing. 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 received by OWCP.

By decision dated July 31, 2023, OWCP 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 after the scheduled hearing to explain his failure to appear.

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 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

2
20 C.F.R. § 10.616(a).

2 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 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 before a representative of OWCP’s Branch of Hearings and Review.

Following OWCP’s December 14, 2022 decision denying appellant’s claim for a schedule award, he filed a timely request for an oral hearing before a representative of OWCP’s Branch of Hearings and Review. In a June 13, 2023 notice, OWCP’s hearing representative notified appellant that he had scheduled a telephonic hearing for July 17, 2023 at 11:30 a.m. EST. The hearing representative properly mailed the hearing notice 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.7 This is called the mailbox rule.8

Appellant failed to call in for the scheduled hearing at the prescribed time. He did not request a postponement or provide an explanation to OWCP for failure to appear for the hearing within 10 days of the scheduled hearing. 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.9

3
Id. at § 10.617(b).
4
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). 5 20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter 2.1601.6g (September 2020); A.J., Docket No. 18-0830 (issued January 10, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018). 6 Id.
7
T.D., Docket No. 22-0705 (issued October 7, 2022).
8
M.S., Docket No. 22-0362 (issued July 29, 2022); L.L., Docket No. 21-1194 (issued March 18, 2022); L.T., Docket No. 20-1539 (issued August 2, 2021); V.C., Docket No. 20-0798 (issued November 16, 2020). 9 J.F., Docket No. 23-0348 (issued July 24, 2023); T.B., Docket No. 23-0202 (issued May 16, 2023).

3
 CONCLUSION

The Board finds that OWCP properly determined that appellant abandoned his request for an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

ORDER

IT IS HEREBY ORDERED THAT the July 31, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 8, 2024
Washington, DC

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

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

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

4