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United States Department of Labor
Employees’ Compensation Appeals Board
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__________________________________________
J.M., Appellant
and
DEPARTMENT OF VETERANS
AFFAIRS, CLEVELAND VETERANS ADMINISTRATION MEDICAL CENTER, Brecksville, OH, Employer
__________________________________________
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Docket No. 09-1563
Issued: February 26,
2010
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Appearances: Case
Submitted on the Record
Alan J.
Shapiro,Esq., for the appellant
Office of Solicitor, for the Director
DECISION AND ORDER
Before:
DAVID S. GERSON,
Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On June 4, 2009 appellant
filed a timely appeal from August 13, 2008 and May 1, 2009 decisions
of the Office of Workers’ Compensation Programs denying her claim for continuation
of pay. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant
is entitled to continuation of pay for her October 21, 2005 employment injury.
FACTUAL HISTORY
On December 6, 2005
appellant, then a 49-year-old nurse, filed a traumatic injury claim alleging
that she fractured her left ankle on October 21, 2005 while she attempted
to move a patient from the floor onto a mattress. The employing establishment
controverted appellant’s claim for continuation of pay on the grounds that she
failed to submit a CA-1 claim form (Report of Traumatic Injury) within 30 days
of the October 21, 2005 injury, as required. On July 20, 2006 the
Office accepted her claim for a closed fracture of the left fibula and a left
ankle sprain.
By decision dated August 13,
2008, the Office denied appellant’s claim for continuation of pay on the
grounds that she failed to submit a written claim within 30 days of her October 21,
2005 employment injury.
Appellant requested a hearing that
was held on February 17, 2009. She testified that on the day of the
injury, October 21, 2005, she reported her injury to her supervisor and to
the medical officer on duty. Appellant was not asked to complete a form. She
submitted a CA-1 claim form on December 6, 2005 when she returned to
work. Her representative argued that filing a CA-20 (Attending Physician’s
Report) met the requirement for filing a notice of traumatic injury on an approved
form.
On March 13, 2009 the
employing establishment contended that a CA-20 form did not meet the
requirement for entitlement to continuation of pay. It noted that the CA-20 is
completed by a physician, not the employee, and there is no place provided on
the form for the employee to sign the form as a means of filing written notice
of injury and a claim for continuation of pay.
By decision dated May 1,
2009, an Office hearing representative affirmed the August 13, 2008
decision denying continuation of pay for appellant’s October 21, 2005
employment injury.
LEGAL PRECEDENT
Office 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 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.”
The Federal Employees’ Compensation Act authorizes continuation of pay for an
employee who has filed a valid claim for a traumatic injury.
ANALYSIS
On December 6, 2005
appellant filed a claim for an October 21, 2005 traumatic injury.
Because she did not file a claim within 30 days, the time specified in sections
8118(a) and 8122(a)(2) of the Act,
she is not entitled to continuation of pay.
Section 8122 of the Act
provides that original claims for compensation for disability or death must be
filed within 3 years after the injury or death unless the immediate supervisor
had actual knowledge of the injury or death within 30 days or written notice of
death or injury, as specified in section 8119, was given within 30 days.
Actual knowledge and written notice of injury under section 8119 thereby serve
to satisfy the statutory period for filing an original claim for compensation.
The Office accepted the claim as timely and paid compensation.
Claims that are timely under
section 8122 are not necessarily timely under section 8118(a). Section 8118(a)
makes continuation of pay contingent on the filing of a written claim within 30
days of the injury. When an injured employee makes no written claim for a
period of wage loss within 30 days, she is not entitled to continuation of pay,
notwithstanding prompt notice of injury. The record shows that appellant
provided notice of injury to her supervisor on October 21, 2005 but this
oral notice is not determinative to whether she is entitled to continuation of pay
under section 8118(a).
Appellant argued that her
supervisor did not ask her to complete a claim form on October 21, 2005
and she submitted a CA-1 claim form on December 6, 2005 when she returned
to work. In the case of William E. Ostertag,
the Board explained that the “exceptional circumstances” provision of
section 8122(d)(3), which may excuse the untimely filing of an original claim
for compensation under section 8122(a) and (b), is not applicable to section
8118(a) which concerns a claim for continuation of pay. Because the Act makes
no provision for an exception to the time limitation in section 8118(a), no
exceptional or mitigating circumstance, including error by the employing
establishment, can entitle a claimant to continuation of pay who has not filed
a written claim within 30 days of the date of injury.
Appellant contends that the CA-20, attending physician’s report, submitted by
her doctor on November 17, 2005 met the requirement for filing a notice of
traumatic injury on an approved form. However, a CA-20 form is not accepted by
the Office as one of the approved forms for filing written notice of a claim
for wage loss due to a traumatic injury.
The CA-20 form is a medical document from an employee’s physician and does not
constitute a claim for compensation by the employee. It is the claimant’s
burden to provide written notice of injury and a CA-20 form is not completed or
signed by the claimant. Appellant did not submit written notice of injury on an
approved form until December 6, 2005, more than 30 days after the
October 21, 2005 employment injury, when she submitted a CA-1 form.
Therefore, appellant is not entitled to continuation of pay.
CONCLUSION
The Board finds that appellant
is not entitled to continuation of pay for her October 21, 2005 employment
injury.
ORDER
IT
IS HEREBY ORDERED THAT the decisions of the Office of Workers’ Compensation
Programs dated May 1, 2009 and August 13, 2008 are affirmed.
Issued: February 26, 2010
Washington, DC
David S. Gerson, Judge
Employees’
Compensation Appeals Board
Michael E.
Groom, Alternate Judge
Employees’
Compensation Appeals Board
James A.
Haynes, Alternate Judge
Employees’
Compensation Appeals Board