United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.M., Appellant

and

DEPARTMENT OF THE AIR FORCE, SCOTT 

AIR FORCE BASE, IL, Employer

__________________________________________

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Docket No. 20-0837

Issued: January 27, 2021

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, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 5, 2020 appellant filed a timely appeal from October 23 and November 25, 2019 

merit decisions, and a January 27, 2020 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 Appellant submitted a timely request for oral argument 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). In 

support of appellant’s oral argument request, he asserted that oral argument should be granted because he had followed 

his physician’s advice regarding treatment and return to work after his employment injury. Appellant also asserted 

that he did not participate in the scheduled hearing before OWCP’s Branch of Hearings and Review because he was 

working on a project with his supervisor. The Board, in exercising its discretion, denies appellant’s 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 of 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.
2

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish entitlement

to continuation of pay (COP); (2) whether he has met his burden of proof to establish a right 

humerus fracture causally related to the accepted August 28, 2019 employment incident; and 

(3) OWCP properly determined that appellant abandoned his request for an oral hearing before an 

OWCP hearing representative.

FACTUAL HISTORY

On October 16, 2019 appellant, then a 58-year-old purchasing agent, filed a traumatic 

injury claim (Form CA-1) alleging that on August 28, 2019 he fractured his right arm when he 

tripped over a box and landed on his right elbow while in the performance of duty. He stopped 

work on August 28, 2019 and returned to work on September 16, 2019.3

In a statement dated August 28, 2018, a coworker related that he was walking in the 

warehouse with appellant when appellant tripped over a box and landed on his left side and arm.

In a letter dated October 22, 2019, the employing establishment controverted appellant’s 

claim for COP because the injury had not been reported within 30 days of the date of the claimed 

injury.

In a development letter dated October 23, 2019, OWCP advised appellant of the 

deficiencies of his claim and advised him of the type of factual and medical evidence necessary to 

establish entitlement to FECA benefits. It noted that no medical evidence had been submitted with 

his claim. OWCP afforded appellant 30 days to submit the necessary evidence. 

On October 23, 2019 the employing establishment forwarded an October 22, 2019 e-mail 

from appellant explaining why he did not file his claim within 30 days of the August 28, 2019 

incident. Appellant explained that the injury occurred during fiscal year closeout, the busiest time 

of year for procurement. He also related that his physician had instructed him to wear a sling for 

six weeks and had restricted his ability to move his right arm for two weeks.

By decision dated October 23, 2019, OWCP denied COP for the period August 29 to 

September 22, 2019. It explained that appellant had not reported his injury on an OWCP-approved 

form within 30 days following the August 28, 2019 employment incident. OWCP added that the 

denial of COP did not preclude him from filing a claim for disability due to the effects of the 

claimed August 28, 2019 employment injury.

On October 27, 2019 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review.

 

3 The Board notes there is discrepancy in the evidence as to when appellant returned to work. The Form CA-1 

notes September 16, 2019 as the return to work date. However, a report of work status form noted September 23, 

2019 as the date appellant returned to work during the COP eligibility period. In an October 27, 2019 letter, appellant 

noted that he was off work from August 28 to September 13, 2019. In a claim for compensation (Form CA-7) dated 

October 21, 2019, appellant requested leave buy back from September 1 through 14, 2019. 
3

OWCP subsequently received a September 3, 2019 disability note from Dr. Charles L. 

Lehmann, a Board-certified orthopedic surgeon, who diagnosed right humerus fracture and placed 

appellant off work until further notice. 

By decision dated November 25, 2019, OWCP accepted that the August 28, 2019 

employment incident occurred as alleged, but denied appellant’s traumatic injury claim, finding 

that the evidence of record did not include medical evidence demonstrating that the diagnosed 

right humerus fracture was causally related to accepted employment incident. 

In a December 10, 2019 letter, OWCP informed appellant that an oral hearing would take 

place on January 14, 2010 at 11:00 a.m., Eastern Standard Time (EST). It provided a toll free 

number and a pass code to access the hearing by telephone. OWCP mailed the letter to appellant’s 

last known address of record.

By decision dated January 27, 2020, OWCP found that appellant had abandoned his request 

for an oral hearing in connection with the denial of COP. It indicated that he had failed to appear 

at the telephonic hearing scheduled for January 14, 2020 and failed to contact OWCP prior to or 

subsequent to the scheduled hearing to his failure to appear.

LEGAL PRECEDENT -- ISSUE 1

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

The context of section 8122 makes clear that this means within 30 days of the injury.6

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.7

The Board has held that section 8122(d)(3) of FECA,8 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 

 

4 Supra note 2 at § 8118(a).

5

Id.

6 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).

7

J.S., id.; Robert M. Kimzey, 40 ECAB 762 (1989); Myra Lenburg, id.

8 Supra note 2 at § 8122(d)(3).
4

requirements for COP.

9

 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.10

ANALYSIS -- ISSUE 1

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

COP.

Appellant filed written notice of his traumatic injury (Form CA-1) on October 16, 2019. 

By decision dated October 23, 2019, OWCP denied his request for COP, as his claim was not filed 

within 30 days following the August 28, 2019 employment injury. Appellant explained that the

delay in filing his claim occurred because he was injured during a very busy period at the end of 

the fiscal year. He also explained that his arm was immobile for the first two weeks, following the 

injury, and in a sling for six weeks.

The Board notes that there is no provision in FECA for excusing a late filing regarding 

COP.11 Because appellant filed written notice of his traumatic injury claim (Form CA-1) on 

October 16, 2019, the Board finds that it was not filed within 30 days of the claimed August 28, 

2019 employment injury, as specified in sections 8118(a) and 8122(a)(2) of FECA. Therefore 

appellant is not entitled to COP.

LEGAL PRECEDENT -- ISSUE 2

An employee seeking benefits under FECA12 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA,13 that an injury was sustained in the performance of duty as 

alleged, and that any disability or medical condition for which compensation is claimed is causally 

related to the employment injury.14 These are the essential elements of each and every 

compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an 

occupational disease.15

 

9 C.C., and J.S., supra note 6; William E. Ostertag, 33 ECAB 1925 (1982).

10 Id.; Dodge Osborne, 44 ECAB 849 (1993).

11 Id.

12 Supra note 2. 

13 T.L., Docket No. 19-1467 (issued July 24, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 

ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

14 T.L., id.; J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. 

Chadden, Sr., 40 ECAB 312 (1988).

15 T.L., supra note 13; K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued 

February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
5

To determine if an employee has sustained a traumatic injury in the performance of duty, 

OWCP begins with an analysis of whether fact of injury has been established. Fact of injury 

consists of two components that must be considered in conjunction with one another. The first 

component is whether the employee actually experienced the employment incident that allegedly 

occurred.16 The second component is whether the employment incident caused a personal injury.17

Rationalized medical opinion evidence is required to establish causal relationship. The 

opinion of the physician must be based on a complete factual and medical background, must be 

one of reasonable medical certainty, and must be supported by medical rationale explaining the 

nature of the relationship between the diagnosed condition and the specific employment incident.18 

Neither the mere fact that a disease or condition manifests itself during a period of employment, 

nor the belief that the disease or condition was caused or aggravated by employment factors or 

incidents is sufficient to establish causal relationship.19

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met his burden of proof to establish a right humerus 

fracture causally related to the accepted August 28, 2019 employment incident.

The only medical evidence appellant submitted in support of his claim was a September 3, 

2019 disability note from Dr. Lehmann diagnosing right humerus fracture and placing appellant 

off work. Dr. Lehmann, however, offered no opinion regarding the cause of this condition. The 

Board has held that medical evidence that does not offer an opinion regarding the cause of an 

employee’s condition is of no probative value on the issue of causal relationship.20 Thus, this 

evidence is insufficient to support his claim.

As appellant has not submitted rationalized medical evidence to establish that his 

diagnosed right humerus fracture was causally related to the accepted employment incident of 

August 28, 2019, the Board finds that he has not met his burden of proof.

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.

 

16 K.M., id.; L.M., id.; Delores C. Ellyett, id.

17 M.H., Docket No. 18-1737 (issued March 13, 2019); A.D., Docket No. 17-1855 (issued February 26, 2018);

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); John J. Carlone, 41 ECAB 

354 (1989).

18 S.S., Docket No. 18-1488 (issued March 11, 2019); L.D., Docket No. 17-1581 (issued January 23, 2018); 

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

19 J.L., Docket No. 18-1804 (issued April 12, 2019); L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000);

Gary L. Fowler, 45 ECAB 365 (1994).

20 M.C., Docket No. 20-0125 (issued July 15, 2020); D.C., Docket No. 19-1093 (issued June 25, 2020); see also 

L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
6

LEGAL PRECEDENT -- ISSUE 3

A claimant who has received a final adverse decision by OWCP may obtain a hearing by 

writing to the address specified in the decision within 30 days of the date of the decision for which 

a hearing is sought.21 Unless otherwise directed in writing by the claimant, OWCP’s hearing 

representative will mail a notice of the time and place of the hearing to the claimant and any 

representative at least 30 days before the scheduled date.22 OWCP has the burden of proof to 

establish that it properly mailed to a claimant and any representative of record a notice of a 

scheduled hearing.23

A claimant who fails to appear at a scheduled hearing may request in writing, within 10 

days after the date set for the hearing, that another hearing be scheduled. Where good cause for 

failure to appear is shown, another hearing will be scheduled and conducted by teleconference. 

The failure of the claimant to request another hearing within 10 days, or the failure of the claimant 

to appear at the second scheduled hearing without good cause shown, shall constitute abandonment 

of the request for a hearing.24

ANALYSIS -- ISSUE 3

The Board finds that OWCP properly determined that appellant abandoned his request for 

an oral hearing before an OWCP hearing representative. 

Following OWCP’s October 23, 2019 decision concerning the denial of COP, appellant 

filed a timely request for a telephonic oral hearing before a representative of OWCP’s Branch of 

Hearings and Review. In a December 10, 2019 letter, OWCP’s hearing representative notified 

appellant that his telephonic hearing was scheduled for January 14, 2020 at 11:00 a.m., EST. The 

hearing representative properly mailed the hearing notice to appellant’s last known address of 

record25 and provided him with a toll free number and a pass code to use at the time of the 

scheduled hearing. There is no evidence of nondelivery of the hearing notice. Appellant, however, 

failed to appear for the scheduled hearing and he did not request a postponement or provide an 

explanation to OWCP for his failure to attend the hearing within 10 days of the scheduled 

 

21 20 C.F.R. § 10.616(a).

22 Id. at § 10.617(b).

23 T.R., Docket No. 19-1952 (issued April 24, 2020); M.R., Docket No. 18-1643 (issued March 1, 2019);

T.P., Docket No. 15-0806 (issued September 11, 2015); Michelle R. Littlejohn, 42 ECAB 463 (1991).

24 20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written 

Record, Chapter 2.1601.6(g) (October 2011); A.J., Docket No. 18-0830 (issued January 10, 2019); L.B., supra

note 20.

25 R.J., Docket No. 18-1701 (issued May 18, 2020); E.S., Docket No. 19-0567 (issued August 5, 2019).
7

hearing.26 The Board thus finds that OWCP properly determined that appellant abandoned his 

request for a telephonic oral hearing.27

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish that he was 

entitled to receive COP. The Board further finds that appellant has not met his burden of proof to 

establish a right humerus fracture causally related to the accepted August 28, 2019 employment 

incident. The Board also finds OWCP properly determined that appellant abandoned his request 

for a telephonic hearing before an OWCP hearing representative.

ORDER

IT IS HEREBY ORDERED THAT the October 23 and November 25, 2019, and

January 27, 2020 decisions of the Office of Workers’ Compensation Programs are affirmed. 

Issued: January 27, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

26 R.J., id.; A.J., Docket No. 18-0830 (issued January 10, 2019).

27 Supra note 25.