United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.N., Appellant

and

U.S. POSTAL SERVICE, FORT WORTH 

PROCESSING & DISTRIBUTION CENTER, 

Fort Worth, TX, Employer

__________________________________________

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Docket No. 21-0402

Issued: January 31, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 28, 2021 appellant filed a timely appeal from a January 5, 2021 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

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the January5, 2021 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. 
2

ISSUE

The issue is whether appellant has met her burden of proof to establish entitlement to 

continuation of pay (COP).

FACTUAL HISTORY

On May 23, 2019 appellant, then a 61-year-old mail processing clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on December 9, 2018 she was working on a sorting 

machine while in the performance of duty when she rotated to sit down and experienced shooting 

pain down her back and into her right leg, aggravating a previously-accepted employment injury.

3

 

On the reverse side of the claim form the employing establishment indicated that, following her 

original injury, she returned to work in a modified position. Appellant stopped work on 

December 9, 2018. 

In a December 12, 2018 medical note, Dr. Christopher Mann, an osteopath specializing in 

occupational medicine, indicated that appellant fell at work on December 9, 2018 that caused her 

to aggravate her back injury. He indicated that she would be disabled from work from 

December 12 through 18, 2018. 

In a December 18, 2018 diagnostic report, Dr. Albert Tesoriero, a Board-certified 

radiologist, performed a magnetic resonance imaging (MRI) scan of appellant’s lumbar spine, 

revealing straightening of the lower lumbar lordosis, a mild spondylitic annular bulge at L2-3 and 

L3-4 as well as stenosis of the spinal canal at L4-5 and L5-S1. 

In a December 27, 2018 report, Dr. Mann explained that he had been treating appellant 

since April 9, 2015 and that she experienced a material worsening of her back injury on 

December 10, 2018 where her right leg gave out and caused her to fall at work. Upon further 

medical observation, he found that she was temporarily disabled and she was held off of work

from December 10, 2018 to January 23, 2019 for therapeutic treatment. Dr. Mann reviewed the 

December 18, 2018 lumbar spine MRI scan and explained that her diagnoses of lordosis, 

compressions of the spinal nerve roots and bilateral foraminal narrowing would have made her 

more susceptible to an aggravation of her injury with basic increases in her physical activity. He 

noted that this would correlate with the fact that she reported her leg suddenly “gave way” and 

caused her to fall. Dr. Mann further opined that appellant’s fall to the floor would have most likely 

contributed to her current physical findings of impinged nerve roots causing numbness, tingling 

and poor standing or walking endurance. He diagnosed a lumbosacral intervertebral disc disorder 

with radiculopathy. Dr. Mann noted that the upgraded diagnosis had been submitted to OWCP’s 

office since May 10, 2018 with no response to date. He concluded that she sustained a material 

worsening of her original April 8, 2015 employment injury. 

3 Appellant initially filed a notice of recurrence (Form CA-2a) related to a previously accepted April8, 2015 claim 

for thoracic or lumbosacral neuritis or radiculitis and a displacement of lumbar intervertebral disc without myelopathy 

under OWCP File No. xxxxxx732. On August 27, 2020 OWCP notified her that it had administratively converted her 

recurrence claim under OWCP File No. xxxxxx732 to a new traumatic injury claim occurring on December 9, 2018 

under OWCP File No. xxxxxx231.
3

In a May 10, 2018 letter, Dr. Mann diagnosed lumbosacral neuritis and a lumbar disc 

displacement. He recommended that appellant’s diagnosis be expanded to include lumbosacral 

intervertebral disc disorder with radiculopathy so that she could receive medical treatment 

necessary to treat her condition. 

In a January 9, 2019 duty status report (Form CA-17), Dr. Mann diagnosed a lumbar disc 

displacement and checked a box marked “No” to advise that appellant was unable to return to 

work. In a medical note of even date, he indicated that she would be totally disabled from work 

January 9 through 23, 2019 due to her claimed December 9, 2018 employment injury.4 

In a February 5, 2019 medical report, Dr. Patrick Stanton, Board-certified in pain medicine, 

evaluated appellant for pain in her lower back, buttocks and legs and identified the onset of her 

injury as April 8, 2015. He diagnosed lumbosacral radiculopathy and ordered a lumbosacral 

steroid injection. 

In medical reports dated December 12, 2018 to February 18, 2019, Dr. Mann recounted the 

December 9, 2018 employment incident in which appellant reported that her right leg gave out and 

caused her to fall, aggravating the muscles in her lower back. He diagnosed lumbosacral region 

radiculopathy and lumbosacral region other intervertebral disc displacement. 

In medical reports dated from February 22 to May 8, 2019, Dr. Stanton reviewed 

appellant’s history of lower back pain radiating into her right lower extremity and diagnosed 

lumbosacral radiculopathy. He administered lumbar therapeutic epidural steroid installations to 

treat her lumbosacral radiculopathy. 

In a May 10, 2019 letter, Dr. Mann indicated that OWCP had failed to acknowledge the 

receipt of medical evidence appellant submitted. He asserted that her claim for compensation 

began on December 10, 2018 when she was seen in his office on December 12, 2018 and was 

found to have experienced a material worsening of her April 8, 2015 employment injury under 

OWCP File No. xxxxxx732. 

In attending physician’s reports (Form CA-20) dated January 16 to September 4, 2019,

Dr. Mann diagnosed lumbosacral intervertebral disc disorder, lumbar herniated disc and lumbar

radiculopathy due to the April 8, 2015 employment injury. He checked a box marked “Yes” to 

indicate his opinion that her condition was caused or aggravated by the April 8, 2015 employment 

incident.

In a September 11, 2019 letter, Dr. Mann expressed his disagreement with OWCP’s 

July 30, 2019 decision in OWCP File No. xxxxxx732. He explained that appellant’s injury was a 

recurrence of her April 8, 2015 injury and should not have been categorized as a new injury. 

In a March 23, 2020 report, Dr. Mann described his treatment history in relation to 

appellant’s April 8, 2015 employment injury. He opined that she was totally disabled from full, 

4 Dr. Mann indicated that appellant’s employment injury occurred on November 9, 2018, however,this appears to 

be a typographical error.
4

unrestricted work duty as the result of her accepted conditions and that her injuries had continued 

to digress over the last three years. 

By decision dated August 28, 2020, OWCP accepted appellant’s traumatic injury claim for 

lumbosacral region radiculopathy and lumbosacral region other intervertebral disc displac ement. 

By separate decision of even date, it denied her claim for COP, finding that she had not reported 

her injury on an OWCP-approved form within 30 days of the accepted December 9, 2018 

employment injury. OWCP noted that the denial of COP did not affect her entitlement to other 

compensation benefits. 

OWCP continued to receive evidence. Appellant submitted a May 22, 2019 physical 

therapy report from Landrie Johansen, a physical therapist. 

In an August 31, 2020 Form CA-20, Dr. Mann diagnosed intervertebral disc displacement 

and radiculopathy and checked a box marked “Yes” to indicate that appellant’s conditions were 

caused or aggravated by the December 9, 2018 employment injury. 

On October 13, 2020 appellant requested reconsideration of OWCP’s August 28, 2020 

decision denying COP. She submitted arguments in support of her request, including the allegation 

that no one informed her of the documentation she needed to submit and that her attending 

physician submitted medical evidence supporting her claim. 

OWCP also received physical therapy reports dated May 23 to July 1, 2019. 

In an October 12, 2020 Form CA-20, Dr. Mann diagnosed intervertebral disc displacement 

and radiculopathy and checked a box marked “Yes” to indicate that appellant’s conditions were 

caused or aggravated by the December 9, 2018 employment injury. 

By decision dated January 5, 2021, OWCP denied modification of its August 28, 2020 

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 

this title.5 This latter section provides that written notice of injury shall be given within 30 days. 6 

The context of section 8122 makes clear that this means within 30 days of the injury. 7

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 

5

Supra note 1 at § 8118(a).

6

Id. at § 8122(a)(2).

7 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, 763-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985).
5

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.8

The employee must provide a written report on a Form CA-1 to the employing 

establishment within 30 days of the injury.9 OWCP’s procedures provide that another OWCPapproved form, such as CA-2, CA-2a, or CA-7 forms, which contain words of claim, can be used 

to satisfy timely filing requirements.10

The Board has held that section 8122(d)(3) of FECA,11 which allows OWCP to excuse 

failure to comply with the time limitation provision for filing a claim for compensation because of 

exceptional circumstances, is not applicable to section 8118(a), which sets forth the filing 

requirements for COP. Thus, there is no provision in the law for excusing an employee’s failure 

to file a claim within 30 days of the employment injury.12

ANALYSIS

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

COP.

Appellant filed written notice of her traumatic injury on May 23, 2019, which was more 

than 30 days after her December 9, 2018 employment injury. Because she filed her claim on 

May 23, 2019, the Board finds that it was not filed within 30 days of the injury, as specified in 

sections 8118(a) and 8122(a)(2) of FECA. In her October 13, 2020 request for reconsideration, 

appellant reported that no one informed her of the documentation she needed to submit in support 

of her claim. However, there is no provision in FECA for excusing such a late filing. 13 

Additionally, appellant claimed that her physician submitted medical evidence relating to her 

claim. However, despite this, there remains no evidence of written notice on an OWCP-approved 

form prior to May 23, 2019.14 The Board, therefore finds that OWCP properly denied COP as 

appellant did not file her claim within the requisite 30 days from the date of injury.15

8

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

9

Id. at § 10.210(a).

10 Federal (FECA) Procedure Manual, Part 2 --Claims,Continuation of Pay and Initial Payments, Chapter 2.807.5 

(June 2012).

11 5 U.S.C. § 8122(d)(3).

12 E.M., Docket No. 20-0837 (issued January 27, 2021); Dodge Osborne, 44 ECAB 849, 855 (1993); WilliamE. 

Ostertag, 33 ECAB 1925 (1982).

13 Id.; see also E.S., Docket No. 15-1800 (issued December 10, 2015).

14 Supra note 9 and 10.

15 20 C.F.R. § 10.210(a); J.S., Docket No. 18-1086 (issued January17, 2019).
6

CONCLUSION

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

COP.16

ORDER

IT IS HEREBY ORDERED THAT the January 5, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 31, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

16 Upon return of the case record, OWCP shall administratively combine the present claim file with OWCP File 

No. xxxxxx732.