A.M. and Department of the Army, Defense Language Institute (Board decision, January 24, 2025)

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

An Army employee reported an elbow fracture from a work incident. She initially used an OSHA incident form and submitted the required traumatic injury form more than 30 days after the injury. The Board found that the OSHA form did not satisfy the filing requirement for continuation of pay. It affirmed OWCP’s denial.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Continuation of pay denied.
• Key point: The required injury claim was not filed within 30 days.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.M., Appellant
)
)
and ) Docket No. 25-0162
)
Issued: January 24, 2025
DEPARTMENT OF THE ARMY, DEFENSE
)
LANGUAGE INSTITUTE,
)
Presidio of Monterey, CA, 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 December 3, 2024 appellant filed a timely appeal from an October 28, 2024 merit decision of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

1
Appellant submitted a timely oral argument request before the Board. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). Appellant asserts that oral argument should be granted to address the arguments on appeal. The Board, in exercising its discretion, denies his/her request for oral argument because the arguments on appeal can adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance o f a Board decision and not serve a useful purpose. As such, the oral argument request is denied and this decision is based on the case record as submitted to the Board. 2 5 U.S.C. § 8101 et seq.
ISSUE.

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

FACTUAL HISTORY

On April 22, 2024 appellant, then a 64-year-old assistant professor, filed a traumatic injury claim (Form CA-1) alleging that on February 7, 2024 she sustained a right elbow fracture when she slipped and fell in the parking lot while in the performance of duty. On the reverse side of the claim form, her supervisor signed the form on April 29, 2024 and acknowledged that appellant was injured in the performance of duty. Appellant stopped work on the date of injury and returned to work on April 8, 2024.

By decision dated June 12, 2024, OWCP accepted the claim for right elbow displaced fracture (avulsion fracture) of medial epicondyle of right humerus.

By separate decision dated June 12, 2024, OWCP denied appellant’s claim for COP, finding that she had not reported her injury on an OWCP-approved form within 30 days of the accepted February 7, 2024 injury. It advised her that the denial of COP did not affect her entitlement to compensation, and that she could, therefore, file a claim for compensation (Form CA-7) for lost wages due to her accepted employment injury.

On July 9, 2024 appellant requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

A hearing was held on September 25, 2024. Appellant asserted that she had timely filed an Occupational Safety and Health Administration (OSHA) Form 301

Following the hearing, appellant submitted OSHA Form 301 Injury and Illness Incident Report with a filing date of February 14, 2024.

By decision dated October 28, 2024, OWCP’s hearing representative affirmed the June 12, 2024 decision.

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

2 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 (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.6

ANALYSIS

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

The record reflects that appellant filed written notice of her traumatic injury on a Form CA- 1 on April 22, 2024, alleging that on February 7, 2024 she sustained a right elbow fracture while in the performance of duty. As previously noted, OWCP’s regulations provide that a Form CA-1, must be filed within 30 days of the date of the injury. 7 If that form is not available, using another form would not alone preclude receipt. 8 The record indicates that appellant initially filed her claim via an OSHA Form 301. However, the Board has held that an OSHA form is not considered a claim for a period of wage loss as required by 5 U.S.C. § 8118.9

There is no provision in FECA for excusing a late filing regarding COP. 10 As appellant filed her Form CA-1 on April 22, 2024, more than 30 days after the February 7, 2024 date of injury, the Board finds that appellant’s COP claim was untimely filed. 11 Accordingly, appellant has not met her burden of proof to establish entitlement to COP.

3
Id. at § 8118(a).
4
Id. at § 8122(a)(2).
5
C.B., Docket No. 23-1035 (issued June 5,2024); 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); see also C.B., id.; 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.
8
Id.
9
R.D., Docket No. 23-0046 (issued March 28, 2023); R.J., Docket No. 08-2338 (issued June 9, 2009).
10
See C.C., Docket No. 18-0912 (issued July 11, 2019).
11
See D.M., Docket No. 23-0108 (issued July 11, 2023).

3
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 her burden of proof to establish entitlement to COP.

ORDER

IT IS HEREBY ORDERED THAT the October 28, 2024 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: January 24, 2025
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

4