H.H. and U.S. Postal Service, Main Post Office, Loma Linda, CA (Board decision, April 5, 2013)

ECAB final decision. The Board affirmed OWCP’s July 2, 2012 denial of continuation of pay after H.H.’s accepted thumb injury. He filed the required written injury claim more than 30 days after the accident. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days 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

H.H., a postal city carrier, injured his right thumb in a motorcycle fall in the employee parking lot shortly before his shift. OWCP accepted the injury as work related but denied continuation of pay because he filed his written injury claim more than two months later. H.H. said he had reported the accident to his postmaster that day and had been told he could not file a claim because he had not clocked in. The Board held that oral notice and the reported misinformation did not excuse the statutory 30 day filing requirement for continuation of pay. It affirmed OWCP’s denial. The decision says H.H. could still seek wage loss benefits through a separate claim based on the accepted injury.

Decision snapshot

• Authority: FECA continuation of pay, 5 U.S.C. §§ 8118(a), 8122(a)(2).
• Outcome: July 2, 2012 continuation of pay denial affirmed; the underlying thumb injury remained accepted.
• Key point: Filing the written injury claim after 30 days barred continuation of pay despite same day oral notice to a supervisor.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
H.H., Appellant
)
)
and ) Docket No. 13-218
) Issued: April 5, 2013
U.S. POSTAL SERVICE, MAIN POST OFFICE,
)
Loma Linda, CA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On November 7, 2012 appellant filed a timely appeal of a July 2, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim for continuation of pay. 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.

ISSUE

The issue is whether OWCP properly denied appellant’s claim for continuation of pay.

On appeal, appellant contends that he did not file a workers’ compensation claim or request continuation of pay within 30 days of his injury because he was misinformed about the filing of a claim. Following his February 6, 2012 injury, he was advised by his postmaster that he could not file a claim since he had not clocked in at work before the accident.

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

On April 20, 2012 appellant, then a 59-year-old city carrier, filed a traumatic injury claim, Form CA-1, alleging that at 7:25 a.m. on February 6, 2012 he sustained a right thumb sprain due to an inability to safely ride his motorcycle. He stopped work on February 7, 2012. Appellant’s regular work hours were from 7:30 a.m. to 4:00 p.m.

The employing establishment controverted the claim, contending that appellant’s injury was not reported on a Form CA-1 within 30 days following the injury. It received notice of the claim on April 23, 2012. The employing establishment contended that appellant was not in the performance of duty at the time of the incident.

On June 18, 2012 appellant further described the February 6, 2012 incident. While getting ready to park his motorcycle in the employee parking lot, it slipped on loose gravel causing him to fall and dislocate his right thumb which required medical care. At the time of injury, appellant was dressed in his postal uniform and was within five minutes of clocking in to report for duty. He reported his injury to the postmaster on the day of the injury.

By letter dated July 2, 2012, OWCP accepted appellant’s claim for a closed dislocation and sprain of the right thumb. It found that he was within the performance of duty since he was sufficiently within the time frame for beginning work (five minutes) and was on the employing establishment’s premises in the parking lot at the time of injury. OWCP found that appellant was not entitled to continuation of pay, however, on the grounds that his claim was not filed within 30 days of the date of injury. It advised him that “If your injury results in lost time from work, you may claim compensation using Form CA-7.”

LEGAL PRECEDENT

Section 8118(a) of FECA authorizes continuation of pay, not to exceed 45 days, to an employee who has filed a claim for a period of wage loss due to a traumatic injury with his or her immediate superior on a form approved by the Secretary of Labor within the time specified in section 8122(a)(2) of this title.2 This latter section provides that written notice of injury shall be given within 30 days.3 The context of section 8122 makes clear that this means within 30 days of the injury.4

OWCP regulations provide, in pertinent part, that to be eligible for continuation of pay, an employee 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 (but if that form is not available, using

2
Id. at § 8118(a).
3
Id. at § 8122(a)(2).
4
Robert M. Kimzey, 40 ECAB 762, 763-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985).

2 another form would not alone preclude receipt); and (3) begin losing time from work due to the traumatic injury within 45 days of the injury.5

The Board has held that section 8122(d)(3) of FECA,6 which allows OWCP to excuse failure to comply with the time limitation provision for filing a claim for compensation because of exceptional circumstances, is not applicable to section 8118(a), which sets forth the filing requirements for continuation of pay. Thus, there is no provision in the law for excusing an employee’s failure to file a claim within 30 days of the employment injury.7

ANALYSIS

Appellant filed a written notice of injury on April 20, 2012 more than two months after his injury on February 6, 2012. The Board notes that his oral notice of injury to his supervisor on February 6, 2012 is not determinative of whether he is entitled to continuation of pay under section 8118(a).8 There is no provision in FECA for excusing a late filing and appellant is not entitled to continuation of pay.9 This is so regardless of any failure on the part of the employing establishment10 or the local FECA representative. The Board finds that appellant was not entitled to continuation of pay as he did not file within the requisite 30 days from the date of injury.

Appellant argued on appeal that he did not file a workers’ compensation claim or request continuation of pay within 30 days of his injury because he was misinformed by his postmaster that he could not file a claim since he had not clocked in at work before the accident. As noted, there is no excuse for failing to file notice of injury within 30 days of its occurrence. As OWCP noted, its decision denying continuation of pay does not affect appellant’s ability to file a claim for wage-loss benefits through a Form CA-7, for any disability or period of wage loss caused by the accepted employment injury.

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 is not entitled to continuation of pay.

5
20 C.F.R. § 10.205(a)(1-3). See also J.M., Docket No. 09-1563 (issued February 26, 2010).
6
5 U.S.C. § 8122(d)(3).
7
Dodge Osborne, 44 ECAB 849, 855 (1993).
8
See J.M., supra note 5.
9
Supra note 7.
10
See 20 C.F.R. § 10.211 (the employer’s responsibilities in continuation of pay cases).

3
ORDER

IT IS HEREBY ORDERED THAT the July 2, 2012 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: April 5, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

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

4