B.T. and U.S. Postal Service, Post Office, Las Vegas, NV (Board decision, February 1, 2013)

ECAB final decision on the merits. The Board affirmed OWCP’s June 26, 2012 denial of continuation of pay because B.T. filed the required claim form more than 30 days after her injury. The Board’s decision on this pay claim is final under 5 U.S.C. § 8128(b), without ordinary judicial review. 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

B.T., a postal mail processing clerk, reported a January 17, 2012 shoulder injury but filed the required traumatic injury form on May 11. She sought continuation of pay for time away from work. The Board held that the form was filed beyond the 30-day deadline for that benefit. It affirmed OWCP’s denial of continuation of pay.

Decision snapshot

• Authority: Continuation of pay under 5 U.S.C. § 8118(a) and 20 C.F.R. § 10.205(a).
• Outcome: June 26, 2012 continuation of pay denial affirmed.
• Key point: The claim form was filed too late for continuation of pay.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.T., Appellant
)
)
and ) Docket No. 12-1764
) Issued: February 1, 2013
U.S. POSTAL SERVICE, POST OFFICE,
)
Las Vegas, NV, Employer
)
__________ )

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

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On August 20, 2012 appellant filed a timely appeal from a June 26, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for continuation of pay as untimely filed. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

ISSUE

The issue is whether appellant’s claim for continuation of pay for her January 17, 2012 employment injury was timely filed.

On appeal appellant contends that she should have received continuation of pay as the only thing she did incorrectly was not report her injury immediately. 1 5 U.S.C. § 8101 et seq.
2
The Board notes that, following the issuance of the June 26, 2012 OWCP decision and on appeal, appellant submitted new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1).
FACTUAL HISTORY

On May 11, 2012 appellant, then a 47-year-old mail processing clerk, filed a traumatic injury claim (Form CA-1) alleging that she injured her left shoulder in the performance of duty on January 17, 2012. The employing establishment indicated on the claim form that appellant did not inform anyone of the injury until May 11, 2012.

Appellant submitted a May 13, 2012 statement from a witness who testified that he was working with appellant on January 17, 2012 and saw a gate open and fall onto her shoulder and head while they were caging up mail.

On June 26, 2012 OWCP accepted appellant’s claim for sprain of the shoulder and upper arm, unspecified site left.

By decision dated June 26, 2012, OWCP denied appellant’s claim for continuation of pay on the basis that she failed to report the January 17, 2012 employment injury on a form approved by OWCP within 30 days.

LEGAL PRECEDENT

Section 8118 of FECA3 provides for payment of continuation of pay, not to exceed 45 days, to an employee who has filed a claim for a period of wage loss due to traumatic injury with his or her immediate supervisor on a form approved by the Secretary of Labor within the time specified in section 8122(a)(2) of this title. Section 8122(a)(2) provides that written notice of injury must be given as specified in section 8119. The latter section provides in part that notice of injury shall be given in writing within 30 days after the injury.4 Claims that are timely under section 8122 are not necessarily timely under section 8118(a). FECA authorizes continuation of pay for an employee who has filed a valid claim for traumatic injury.5 Section 8118(a) makes continuation of pay contingent on the filing of a written claim within 30 days of the injury. When an injured employee makes no written claim for a period of wage loss within 30 days, he or she is not entitled to continuation of pay, notwithstanding prompt notice of injury.6

In order to establish entitlement to continuation of pay, an employee must establish, on the basis of reliable, probative and substantial evidence, that he or she was disabled as a result of a traumatic employment injury. As part of this burden, he or she must furnish medical evidence from a qualified physician who, based on a complete and accurate history, concludes that the

3
5 U.S.C. §§ 8101-8193; 5 U.S.C. § 8118.
4
Id. at § 8119(a), (c). See also Gwen Cohen-Wise, 54 ECAB 732 (2003).
5
Id. at § 8118(a).
6
See P.R., Docket No. 08-2239 (issued June 2, 2009). See also W.W., 59 ECAB 533 (2008).

2 employee’s disability for specific periods was causally related to such injury.7 As used in FECA, the term disability means incapacity because of an injury in employment to earn wages the employee was receiving at the time of the injury.8 In other words, if an employee is unable to perform the required duties of the job in which he or she was employed when injured, the employee is disabled.9

ANALYSIS

On May 11, 2012 appellant filed a claim for a January 17, 2012 traumatic injury.
Because she did not file a claim within 30 days from the date of injury, the time specified in section 8118(a) and 8122(a)(2) of FECA,10 she is not entitled to continuation of pay.

When an injured employee makes no written claim for a period of wage loss within 30 days, he or she is not entitled to continuation of pay, notwithstanding prompt notice of injury. A May 13, 2012 witness statement fails to show that appellant provided notice of injury to her the employing establishment. Moreover, oral notice is not determinative of whether she is entitled to continuation of pay under section 8118(a).11

On appeal appellant contends that she should have received continuation of pay as the only thing she did incorrectly was not report her injury immediately. In the case of William E. Ostertag,12 the Board explained that the exceptional circumstances provision of section 8122(d)(3), which may excuse the untimely filing of an original claim for compensation under section 8122(a) and (b), is not applicable to section 8118(a) which concerns a claim for continuation of pay. Because FECA makes no provision for an exception to the time limitation in section 8118(a), no exceptional or mitigating circumstance, including error by the employing establishment, can entitle a claimant to continuation of pay who has not filed a written claim within 30 days of the date of injury.13 Appellant did not submit written notice of injury on an

7
See Carol A. Dixon, 43 ECAB 1065 (1992); Virginia Mary Dunkle, 34 ECAB 1310 (1983). See Carol A. Lyles, 57 ECAB 265 (2005); 20 C.F.R. § 10.205(a) (to be eligible for continuation of pay, a person must: (1) have a traumatic injury which is job related and the cause of the disability, and/or the cause of lost time due to the need for medical examination and treatment; (2) file Form CA-1 within 30 days of the date of the injury; and (3) begin losing time from work due to the traumatic injury within 45 days of the injury). 8 See K.H., Docket No. 10-965 (issued January 10, 2011). See also Marvin T. Schwartz, 48 ECAB 521 (1997).
9
Id.
10
5 U.S.C. §§ 8118(a), 8122(a)(2).
11
See J.M., Docket No. 09-1563 (issued February 26, 2010).
12
33 ECAB 1925 (1982).
13
See Laura L. Harrison, 52 ECAB 515 (2001). See also S.C., Docket No. 10-460 (issued January 26, 2011).

3 approved form until May 11, 2012, more than 30 days after the January 17, 2012 employment injury, when she submitted a CA-1 form.14 Therefore, she is not entitled to continuation of pay.

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant’s claim for continuation of pay for her January 17, 2012 employment injury was not timely filed.

ORDER

IT IS HEREBY ORDERED THAT the June 26, 2012 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 1, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

14
See Robert E. Kimzey, 40 ECAB 762 (1989) where the Board found that, despite appellant’s contentions, inter alia, that he attempted to notify the proper employing establishment officials to file a compensation claim and they were unaware of the correct filing procedures, as no exceptional circumstances excuse timely filing for continuation of pay, he did not file his claim within the applicable time frames. The Board noted that appellant’s narrative notification did not comport with OWCP’s regulations setting forth the requirements for filing. Id. at 764 n.4. See also 20 C.F.R. §§ 10.205(a) and 10.210(a).

4