T.B. and Department of Veterans Affairs, National Cemetery Administration, Florida National Cemetery (Board decision, June 12, 2024)

ECAB final decision. The Board affirmed OWCP’s denial of continuation of pay. 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 Florida National Cemetery employee reported injuring his shoulder while backfilling a gravesite on October 27, 2023. He filed the written traumatic injury notice on November 29, 2023. The Board applied the 30-day filing requirement for continuation of pay and found the notice arrived too late. It affirmed OWCP’s denial of that benefit.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Continuation of pay denied.
• Key point: The traumatic injury form was filed more than 30 days after the incident.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.B., Appellant
)
)
and ) Docket No. 24-0455
) Issued: June 12, 2024
DEPARTMENT OF VETERANS AFFAIRS,
)
NATIONAL CEMETERY ADMINISTRATION,
)
FLORIDA NATIONAL CEMETERY,
)
Bushnell, FL, 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 March 27, 2024 appellant filed a timely appeal from a January 12, 2024 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. 2

ISSUE

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

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the January 12, 2024 decision, OWCP received additional evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.
FACTUAL HISTORY

On November 29, 2023 appellant, then a 36-year-old city cemetery caretaker, filed a traumatic injury claim (Form CA-1) alleging that on October 27, 2023 he sustained a right shoulder injury when backfilling a gravesite while in the performance of duty. On the reverse side of the claim form, appellant’s supervisor acknowledged that appellant was injured in the performance of duty. Appellant stopped work on November 28, 2023. On January 12, 2024 OWCP accepted the claim for right shoulder sprain and right rotator cuff injury.

By decision dated January 12, 2024, OWCP denied appellant’s claim for COP, finding that he had not reported his injury on an OWCP-approved form within 30 days of the accepted October 27, 2023 employment injury. It further noted that the decision affected only his entitlement to COP and did not affect his entitlement to other compensation benefits.

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.3 This latter section provides that written notice of injury shall be given within 30 days. 4 The context of section 8122 makes clear that this means within 30 days of the injury.5

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. 6

ANALYSIS

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

The record reflects that appellant filed written notice of his traumatic injury on a Form CA-1 on November 29, 2023, alleging that on October 27, 2023 he sustained a right shoulder injury when backfilling a gravesite while in the performance of duty. As noted above, to be eligible for COP, a claimant must file a Form CA-1 within 30 days of the date of injury. 7 As 3 Supra note 1 at § 8118(a).
4
Id. at § 8122(a)(2).
5
S.G., Docket No. 23-1033 (issued February 14, 2024); 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). 6 20 C.F.R. § 10.205(a)(1-3); S.G., id.; 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). 7 Id.

2 appellant filed his Form CA-1 on November 29, 2023, more than 30 days after the October 27, 2023 date of injury, the Board finds that he is not entitled to COP. 8

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 has not met his burden of proof to establish entitlement to COP.

ORDER

IT IS HEREBY ORDERED THAT the January 12, 2024 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: June 12, 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

8
S.G., supra note 5; A.H., Docket No. 23-0171 (issued June 16, 2023).

3