T.S. and Department of the Treasury, Internal Revenue Service, Kansas City, MO (Board decision, March 30, 2023)

ECAB final decision. The Board affirmed OWCP’s decision. A party may petition the Board for reconsideration within 30 days of issuance unless the order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

T.S. injured her ankle in an August 23, 2021 workplace fall, and OWCP accepted the sprain. She filed her injury form on November 13, 2021, after the 30-day filing period for continuation of pay. The Board affirmed the denial of continuation of pay; the decision did not prevent a separate disability claim.

Decision snapshot

• Authority: 5 U.S.C. § 8118(a).
• Outcome: Continuation of pay denial affirmed.
• Key point: The injury form was filed more than 30 days after the injury.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.S., Appellant
)
)
and ) Docket No. 22-1117
) Issued: March 30, 2023
DEPARTMENT OF THE TREASURY,
)
INTERNAL REVENUE SERVICE,
)
Kansas City, MO, 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 JANICE B. ASKIN, Judge

JURISDICTION

On July 21, 2022 appellant filed a timely appeal from a July 21, 2022 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 over the merits of this case.

ISSUE

The issue is whether appellant has met her burden of proof to establish entitlement to continuation of pay (COP).

FACTUAL HISTORY

On November 13, 2021 appellant, then a 46-year-old tax technician, filed a traumatic injury claim (Form CA-1) alleging that on August 23, 2021 she tripped and fell on an electrical outlet

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5 U.S.C. § 8101 et seq. cover, twisting her right ankle and foot, while in the performance of duty. She indicated on her claim form that she was claiming COP. On the reverse side of the claim form, appellant’s supervisor acknowledged that appellant was injured in the performance of duty. The employing establishment, however, controverted appellant’s claim COP on November 19, 2021.

On January 25, 2022 OWCP accepted appellant’s claim for right ankle sprain.

By decision dated July 21, 2022, OWCP denied appellant’s claim for COP, finding that she had not reported her injury on an OWCP-approved form within 30 days of her accepted August 23, 2021 employment injury. It noted that the denial of COP did not preclude her from filing a claim for disability due to the effects of her claimed injury.

LEGAL PRECEDENT

Section 8118(a) of FECA authorizes COP, 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’s regulations provide, in pertinent part, that to be eligible for COP, 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; and (3) begin losing time from work due to the traumatic injury within 45 days of the injury. 5

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish entitlement to COP.

Appellant filed her Form CA-1 on November 13, 2021. By decision dated July 21, 2022, OWCP denied her claim for COP, as her claim was not filed within 30 days of the claimed employment injury.

The 30th day following August 23, 2021 was September 22, 2021. Because appellant filed her Form CA-1 on November 13, 2021, the Board finds that it was not filed within 30 days of the

2
Id. at § 8118(a).
3
Id. at § 8122(a)(2).
4
E.M., Docket No. 20-0837 (issued January 27, 2021); J.S., Docket No. 18-1086 (issued January 17, 2019); Robert M. Kimzey, 40 ECAB 762-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985). 5 20 C.F.R. § 10.205(a)(1-3); see also T.S., Docket No. 19-1228 (issued December 9, 2019); J.M., Docket No.
09-1563 (issued February 26, 2010); Dodge Osborne, 44 ECAB 849 (1993); William E. Ostertag, 33 ECAB 1925(1982).

2 claimed August 23, 2021 employment injury, as specified in sections 8118(a) and 8122(a)(2) of FECA.6 As such, appellant has not met her burden of proof to establish entitlement to COP.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish entitlement to COP.

ORDER

IT IS HEREBY ORDERED THAT the July 21, 2022 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 30, 2023
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6
Supra notes 2 and 3.

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