United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.D., Appellant

and

U.S. POSTAL SERVICE, OLIVETTE BRANCH 

POST OFFICE, St. Louis, MO, Employer

__________________________________________

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Docket No. 19-1819

Issued: July 2, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On August 17, 2019 appellant filed a timely appeal from a February 22, 2019 merit 

decision and a July 19, 2019 nonmerit 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 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from February 22, 2019, the date of OWCP’s decision regarding 

eligibility for continuation of pay, was August 21, 2019. Because using August 22, 2019, the date the appeal was 

received by the Clerk of the Appellate Boards, would result in the loss of appeal rights, the date of the postmark is 

considered the date of filing. The date of the U.S. Postal Service postmark is August 17, 2019, rendering the appeal

from the decision of February 22, 2019 timely filed. See 20 C.F.R. § 501.3(f)(1); X.Y., Docket No. 19-1290 (issued 

January 24, 2020).

2 5 U.S.C. § 8101 et seq.
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ISSUES

The issues are: (1) whether appellant has established entitlement to continuation of pay for 

the period December 21, 2018 through February 3, 2019; and (2) whether OWCP properly 

determined that appellant abandoned her request for an oral hearing before an OWCP hearing 

representative.

FACTUAL HISTORY

On December 27, 2018 appellant, then a 46-year-old city carrier assistant, filed a traumatic 

injury claim (Form CA-1) alleging that she sustained neck strain on December 20, 2018 when her

vehicle was side-swiped while in the performance of duty. She stopped work on January 2, 2019. 

OWCP accepted appellant’s claim for sprain of ligaments of the thoracic spine and strain of the 

muscle, fascia, and tendon at the neck level.

In the attending physician’s report portion of an Authorization for Examination And/Or

Treatment (Form CA-16) dated December 20, 2018, Dr. Scott Jones, Board-certified in 

preventative medicine, diagnosed cervical and thoracic strain. He noted that appellant had no 

period of disability and was able to resume light work on that date, with restrictions of no lifting, 

pushing/pulling greater than 10 pounds, no reaching overhead, and no delivery with employing 

establishment vehicles.

In a work status report dated December 27, 2018, Dr. Jones diagnosed cervicalgia, thoracic 

spine pain, strain of muscle and tendon of unspecified wall of thorax and cervical disc disorder 

with radiculopathy. He found that appellant could: work with restrictions of lifting, pushing, and 

pulling up to 10 pounds; no over-the-shoulder activity; and avoiding repetitive head and neck 

turning. In an accompanying duty status report (Form CA-17) of the same date, Dr. Jones advised 

her to resume work on that date and recommended work restrictions of lifting/carrying no more 

than 10 pounds and no more than six hours of driving per day. On the supervisor’s side of the duty 

status report, a supervisor noted that limited duty would be provided excluding bedrest.

On January 9, 2019 the employing establishment challenged appellant’s claim and 

controverted entitlement of continuation of pay. It noted that she worked continuously after the 

injury occurred, visiting a physician seven days after the date of the claimed incident. The 

employing establishment noted that appellant subsequently claimed temporary total disability.

In a development letter dated January 14, 2019, OWCP informed appellant of the 

deficiencies of her claim and requested additional medical evidence. It explained that she had not 

submitted a physician’s opinion as to how her injury resulted in her diagnosed conditions. OWCP 

afforded appellant 30 days to respond. 

OWCP thereafter received a report dated December 21, 2018 wherein Dr. Jones diagnosed 

cervicalgia, thoracic spine pain, strain of the muscle and tendon of an unspecified wall of the thorax 

(initial encounter), and strain of the muscle, fascia, and tendon at neck level. Dr. Jones noted that 

appellant’s diagnoses were related to a traffic accident at work and recommended work restrictions 

of lifting, pushing, or pulling up to 10 pounds, no over-the-shoulder activity, and avoiding 

repetitive head and neck turning. In a Form CA-17 dated December 21, 2018, he related that 
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appellant would work full time with lifting and carrying limited to 10 pounds, no over-the-shoulder 

activity, and no repetitive head/neck turning.

In a Form CA-17 report dated January 4, 2019, Dr. Jones recommended work restrictions 

including no lifting/carrying over 10 pounds and no over-the-shoulder activity. In a work status 

report of the same date, he diagnosed cervicalgia, thoracic spine pain, strain of the muscle and 

tendon of an unspecified wall of the thorax, and cervical disc disorder with radiculopathy. 

Dr. Jones recommended work restrictions including lifting/pulling/pushing up to 10 pounds, 

avoiding over-the-shoulder activity, and ability to change positions from sitting to standing 

periodically.

In a work activity status report dated January 14, 2019, Dr. Gustavo M. Galeano, a family 

medicine specialist, diagnosed strain of the muscle and tendon of an unspecified wall of the thorax. 

He recommended that appellant return to work on January 14, 2019 with restrictions of lifting up 

to 10 pounds continuously; pushing/pulling up to 10 pounds continuously, no driving of employing 

establishment vehicles; and no bending or twisting of the trunk. A report of the same date from

Dr. Galeano diagnosed strain of the thoracic region and strain of the neck muscle. He stated that 

appellant was approximately 25 percent of the way toward meeting the physical requirements of 

her position. Dr. Galeano recommended that appellant return to work on that date with restrictions 

of lifting up to 10 pounds continuously, pushing/pulling up to 10 pounds continuously, and no 

driving of employing establishment vehicles.

In an undated attending physician’s report (Form CA-20), Dr. Galeano diagnosed 

thoracic/back/neck strain, noting a period of partial disability beginning December 20, 2018, the 

same date appellant was able to resume light work. He noted that appellant should be on modified 

duty with restrictions of no driving company vehicles, no lifting or pushing over 10 pounds, and 

sitting or walking as needed.

In a work activity status report dated January 22, 2019, Dr. Galeano diagnosed strain of the 

muscle and tendon of an unspecified wall of the thorax and recommended that appellant return to 

work on January 22, 2019 with restrictions of lifting up to 10 pounds continuously, pushing/pulling 

up to 10 pounds continuously, no driving of employing establishment vehicles, and no bending or 

twisting of the trunk. In a report of the same date, he diagnosed strain of the thoracic region and 

recommended work restrictions of lifting up to 10 pounds continuously, pushing/pulling up to 10 

pounds continuously, and no driving of employing establishment vehicles.

In a work activity status report dated January 28, 2019, Dr. Galeano recommended that 

appellant return to regular duty as of January 28, 2019. However, in another work activity status 

report of the same date, he recommended that she return to work on January 28, 2019 with the 

same restrictions as in his January 22, 2019 report. Dr. Galeano diagnosed thoracic strain in 

another report of the same date and recommended the same work restrictions. He repeated 

appellant’s work restrictions regarding lifting/pushing/pulling, driving, and bending/twisting in a 

work activity status report dated February 4, 2019. 

By decision dated February 22, 2019, OWCP found that appellant was not entitled to 

continuation of pay for the period December 21, 2018 through February 3, 2019 because the 
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medical evidence of record did not establish that she was temporarily totally disabled from work 

during that period.

On March 6, 2019 appellant requested an oral hearing before an OWCP hearing 

representative.

In a letter dated June 7, 2019, OWCP’s hearing representative notified appellant that a 

telephonic hearing was scheduled for Monday, July 9, 2019 at 11:30 a.m. Eastern Standard Time 

(EST). The notice included a toll-free number to call and provided the appropriate passcode. 

OWCP’s hearing representative mailed the notice to appellant’s last known address of record. 

Appellant did not appear for the hearing. 

By decision dated July 19, 2019, OWCP’s hearing representative determined that appellant 

had abandoned her request for an oral hearing, finding that appellant had received a 30-day 

advance written notice of the hearing scheduled for July 9, 2019, but failed to appear. OWCP’s 

hearing representative further noted that there was no indication in the case record that appellant 

had contacted OWCP to request a postponement prior to the hearing or provide an explanation to 

OWCP for her failure to appear at the hearing within 10 days of the scheduled hearing. 

Consequently, appellant was deemed to have abandoned her request for an oral hearing.

LEGAL PRECEDENT -- ISSUE 1

Section 8118 of FECA provides for payment of continuation of pay, not to exceed 45 days, 

to an employee who has filed a claim with her immediate supervisor for a period of wage loss due 

to a traumatic injury on a form approved by the Secretary of Labor within the time specified in 

section 8122(a)(2) of FECA.3 

FECA’s implementing regulations provide in pertinent part:

“An employer shall continue the regular pay of an eligible employee without a break in time 

for up to 45 calendar days, except when, and only when:

(a) The disability was not caused by a traumatic injury;

(b) The employee is not a citizen of the United States or Canada;

(c) No written claim was filed within 30 days from the date of injury;

(d) The injury was not reported until after employment has been terminated;

(e) The injury occurred off the employing agency’s premises and was otherwise not 

within the performance of official duties;

 

3 5 U.S.C. § 8118; 20 C.F.R. §§ 10.5(q), (ee); A.F., Docket No. 14-1838 (issued January 22, 2015); Brady L. 

Fowler, 44 ECAB 343, 351 (1992).
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(f) The injury was caused by the employee’s willful misconduct, intent to injure or kill 

himself or herself or another person, or was proximately caused by intoxication by 

alcohol or illegal drugs; or

(g) Work did not stop until more than 45 days following the injury.”

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ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly determined that appellant was not entitled to 

continuation of pay.

Appellant submitted reports from Dr. Jones and Galeano from December 20, 2018 

containing work restrictions related to appellant’s accepted conditions of sprain of ligaments of 

the thoracic spine and strain of the muscle, fascia, and tendon at the neck level. On February 22, 

2019 OWCP found that appellant was not entitled to continuation of pay for the period 

December 21, 2018 through February 3, 2019 because the medical evidence did not establish that 

she was temporarily totally disabled from work during this period, though it did establish that she 

was released to return to work with restrictions. The Board finds that this denial of continuation 

of pay was erroneous, as it was not based on any of the categories outlined in section 10.220 of 

FECA’s implementing regulations.

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 Therefore, upon return of the case record OWCP shall pay 

continuation of pay compensation as set forth in this decision. 

CONCLUSION

The Board finds appellant has established entitlement to continuation of pay for the period 

December 21, 2018 through February 3, 2019. 

 

4 20 C.F.R. § 10.220. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial 

Payments, Chapter 2.807.11 (June 2012). 

5 Supra note 4. There is no evidence of record that the employing establishment provided appellant a written job 

offer advising her that a modified job was available.
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ORDER

IT IS HEREBY ORDERED THAT the February 22, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: July 2, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board