United States Department of Labor

Employees’ Compensation Appeals Board

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T.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

North Houston, TX, Employer

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Docket No. 19-1228

Issued: December 9, 2019

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

JANICE B. ASKIN, Judge

JURISDICTION

On May 13, 2019 appellant filed a timely appeal from a March 29, 2019 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 established entitlement to continuation of pay (COP).

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the March 29, 2019 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.
2

FACTUAL HISTORY

On February 9, 2019 appellant, then a 42-year-old mail processing clerk, filed a traumatic 

injury claim (Form CA-1) alleging that, on February 3, 2019, she injured her back when she lifted 

a stack of magazines and turned awkwardly while in the performance of duty. She checked a box 

on the claim form indicating that she was requesting COP. On the reverse side of the claim form, 

the employing establishment indicated that appellant stopped work on the date of injury. 

In a report dated February 19, 2019, received by the employing establishment on 

February 20, 2019 and forwarded to OWCP on February 23, 2019, Dr. Steven B. Inbody, a Boardcertified neurologist, diagnosed sprain of ligaments of the cervical spine, sprain of ligaments of 

the lumbar spine, brachial neuritis/radiculitis, and left leg sciatica. He noted that appellant was to 

be off work from February 19 to March 27, 2019 due to total incapacitation. A COP nurse was 

assigned to appellant’s claim on February 25, 2019.

In a development letter dated February 25, 2019, OWCP advised appellant of the 

deficiencies of her claim, informed her of the type of evidence needed to establish her claim, and 

provided a questionnaire for her completion. It afforded her 30 days to submit the necessary 

evidence.

OWCP continued to receive medical evidence. 

By decision dated March 29, 2019, OWCP accepted appellant’s claim for sprain of 

ligaments of the thoracic spine. By separate decision of the same date, it denied COP during 

appellant’s absence from work finding that she had not submitted medical evidence to the 

employing establishment within 10 days of the date of injury. 

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.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 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

 

3 5 U.S.C. § 8118(a).

4

Id. at § 8122(a)(2).

5 C.C., Docket No. 18-0912 (issued July 11, 2019); J.S., Docket No. 18-1086 (issued January 17, 2019); Robert M. 

Kimzey, 40 ECAB 762, 763-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985).
3

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

OWCP’s regulations and procedures further provide that COP may be terminated if 

medical evidence which on its face supports disability due to a work-related injury is not received 

within 10 calendar days after the claim is submitted (unless the employer’s own investigation 

shows disability to exist). However if the required medical evidence is later provided, COP shall 

be reinstated retroactive to the date of termination.

7

ANALYSIS

The Board finds that the case is not in posture for decision. 

Appellant filed her traumatic injury claim (Form CA-1) on February 9, 2019 alleging a 

traumatic injury on February 3, 2019. In a report dated February 19, 2019, received by the 

employing establishment on February 20, 2019 and forwarded to OWCP on February 23, 2019,

Dr. Inbody, diagnosed sprain of ligaments of the cervical spine, sprain of ligaments of the lumbar 

spine, brachial neuritis/radiculitis, and left leg sciatica due to the accepted employment injury. He 

noted that appellant was to be off work from February 19 to March 27, 2019 due to total 

incapacitation. A COP nurse was assigned on February 23, 2019 to assist appellant’s return to 

work. 

On March 29, 2019 OWCP accepted the claim for thoracic spine ligament sprain. By 

separate decision of even date, it denied COP as appellant had not submitted medical evidence to 

the employing establishment within 10 days of the date of injury. 

An employer may terminate COP of an employee when medical evidence which on its face 

supports disability due to a work-related injury is not received within 10 calendar days after the 

claim is submitted. However, once medical evidence is received, COP should be reinstated 

retroactively. The employing establishment received Dr. Inbody’s report on February 20, 2019.

While this report was not received within 10 days of the injury, once it was received, OWCP’s 

regulations and procedures required that the employing establishment reinstate appellant’s 

entitlement to COP retroactively to the date of its termination.

8

The case must therefore be remanded for OWCP to determine appellant’s entitlement to a 

retroactive reinstatement of COP. After this and other such further development as deemed 

necessary, it shall issue a de novo decision. 

 

6 20 C.F.R. § 10.205(a)(1-3); see also J.M., Docket No. 09-1563 (issued February 26, 2010).

7 20 C.F.R. § 10.222(a)(1); Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial 

Payments, Chapter 2.807.9(a) (June 2012).

8

Id.
4

CONCLUSION

The Board finds that this case is not in posture for decision. 

ORDER

IT IS HEREBY ORDERED THAT the March 29, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and this case is remanded for further proceedings 

consistent with this opinion. 

Issued: December 9, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board