E.S. and U.S. Postal Service, Post Office, Denver, CO (Board decision, December 10, 2015)

ECAB final decision. The Board affirmed OWCP’s May 22, 2015 denial of continuation of pay for January 7 through February 21, 2015. 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

E.S., a Postal Service window clerk, injured his left knee when he struck a container at work. OWCP accepted the injury and related conditions, but denied continuation of pay because he filed his injury form on April 29, more than 30 days after the January 7 incident. The Board held that the filing period for continuation of pay could not be excused. The Board affirmed the denial of continuation of pay for January 7 through February 21, 2015.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8118(a).
• Outcome: May 22, 2015 continuation of pay denial affirmed.
• Key point: An accepted injury did not overcome the 30 day filing limit for continuation of pay.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.S., Appellant
)
)
and ) Docket No. 15-1800
) Issued: December 10, 2015
U.S. POSTAL SERVICE, POST OFFICE,
)
Denver, CO, Employer
)
__________ )

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

DECISION AND ORDER

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

JURISDICTION

On August 31, 2015 appellant filed a timely appeal of a May 22, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.

ISSUE

The issue is whether OWCP properly determined that appellant was not entitled to continuation of pay for the period January 7 to February 21, 2015.

FACTUAL HISTORY

Appellant, a 51-year-old window clerk, struck his left knee against a container on January 7, 2015. He filed a traumatic injury claim (Form CA-1) on April 29, 2015, which

1
5 U.S.C. § 8101 et seq.
OWCP accepted for left knee contusion, deep vein thrombosis on the left, and cellulitis of the left lower leg.

In a report dated March 6, 2015, Dr. Mark Mantano, a specialist in family medicine, noted that appellant was at maximum medical improvement and had returned to work on March 6, 2015.

In a May 22, 2015 decision, OWCP determined that appellant was not entitled to continuation of pay for the period January 7 to February 21, 2015 because he did not report his injury on a form approved by OWCP within 30 days following the injury. It noted that his reported date of injury was January 7, 2015 and that he filed the Form CA-1 traumatic injury claim on April 29, 2015. OWCP advised appellant that its decision concerned his entitlement to continuation of pay, but did not affect his entitlement to other compensation benefits. Appellant could still claim compensation by filing a Form CA-7, through his employer.

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 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

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

2
 ANALYSIS

Appellant filed a Form CA-1 written notice of a traumatic injury on April 29, 2015, more than 30 days after his injury on January 7, 2015. Because he filed the claim on April 29, 2015, the Board finds that it was not filed within 30 days of the injury, as specified in sections 8118(a) and 8122(a)(2) of FECA. There is no provision in FECA for excusing a late filing and appellant is not entitled to continuation of pay.8 This is so regardless of any failure on the part of the employing establishment.9 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.10

CONCLUSION

The Board finds that OWCP properly denied appellant’s claim for continuation of pay from January 7 to February 21, 2015.

ORDER

IT IS HEREBY ORDERED THAT the May 22, 2015 decision of the Office of Workers’ Compensation Programs be affirmed.

Issued: December 10, 2015
Washington, DC

Christopher J. Godfrey, 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

8
Id.
9
See 20 C.F.R. § 10.211 (the employing establishment’s responsibilities in continuation of pay cases).
10
Id.

3