M.N. and Department of Homeland Security, U.S. Customs & Border Protection, Calexico, CA (Board decision, June 7, 2023)

ECAB remand decision. The Board set aside OWCP's June 4, 2021 denial and directed it to apply updated COVID-19 diagnosis guidance in a new decision. Whether the claim qualifies remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

A customs and border protection agent reported contracting COVID-19 while inspecting travelers and submitted a positive antigen test. OWCP denied the claim because it found the medical evidence lacked a COVID-19 diagnosis, then declined to reopen it on reconsideration. The Board found that OWCP had not applied updated guidance for antigen tests. It set aside the merits denial and ordered a new decision under the current bulletins. The later nonmerit decision became moot, and the Board did not decide whether the claim should be accepted.

Decision snapshot

• Authority: American Rescue Plan Act § 4016; FECA Bulletin Nos. 21-09, 21-10, and 22-06.
• Outcome: Merits denial set aside and remanded; later nonmerit denial set aside as moot.
• Key point: OWCP must consider the positive antigen test under the updated COVID-19 diagnosis rules.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.N., Appellant
)
)
and ) Docket No. 21-1097
)
Issued: June 7, 2023
DEPARTMENT OF HOMELAND SECURITY, )
U.S. CUSTOMS & BORDER PROTECTION, )
Calexico, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge

On July 13, 2021 appellant filed a timely appeal from a June 4, 2021 merit decision and a June 24, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 21-1097.

On December 18, 2020 appellant, then a 57-year-old customs and border protection agent, filed a traumatic injury claim (Form CA-1) alleging that on December 16, 2020 he contracted COVID-19 while in the performance of duty. He noted that he interacted with members of the traveling public while conducting primary and secondary inspection duties in passenger and commercial environments. On the reverse side of the claim form, the supervisor, acknowledged that appellant was injured in the performance of duty, and that his knowledge of the facts about the injury agreed with statements of the employee and/or witnesses. Appellant stopped work on December 18, 2020.

OWCP received a COVID-19 antigen test result dated December 16, 2020, which indicated that appellant had tested positive for COVID-19.

In a note dated January 4, 2021, Dr. Unnati Sampat, a Board-certified internal and geriatric medicine specialist, related that appellant had tested positive for COVID-19 on December 16, 2020 and had been under her care. She noted that he had completed two weeks of quarantine and could return to work on January 5, 2021 without restrictions. By decision dated June 4, 2021, OWCP accepted that the December 16, 2020 employment exposure occurred as alleged, but denied appellant’s traumatic injury claim, finding that he had not submitted medical evidence containing a diagnosis of COVID-19. It concluded, therefore, that the requirements had not been met to establish an injury as defined by the Federal Employees’ Compensation Act (FECA).1

On June 11, 2021 appellant requested reconsideration of the June 4, 2021 decision.

By decision dated June 24, 2021, OWCP denied appellant’s request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

The Board, having duly considered the matter, finds that this case is not in posture for decision.

An employee seeking benefits under FECA 2 has the burden of proof to establish the essential elements of his or her claim, including 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, 3 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. 4 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.5

Under section 4016 of the American Rescue Plan Act (ARPA) of 2021 6 any claim made for COVID-19 by or on behalf of a “covered employee” for benefits under FECA will be deemed to have an injury proximately caused by exposure to COVID-19 arising out of the nature of the covered employee’s employment. A “covered employee” is defined by ARPA as an employee under 5 U.S.C. § 8101(a) and employed in the federal service at any time during the period beginning on January 27, 2020 and ending on January 27, 2023. A “covered employee” prior to a diagnosis of COVID-19 must have carried out duties that required a physical interaction with at least one other person (a patient, member of the public, or a coworker); or was otherwise sub ject to a risk of exposure to COVID-19.7

1
5 U.S.C. § 8101 et seq.
2
Id.
3
F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D. Cameron, 41 ECAB 153 (1989). 4 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); James E. Chadden, Sr., 40 ECAB 312 (1988). 5 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); Delores C. Ellyett, 41 ECAB 992 (1990). 6 Public Law 117-2 (March 11, 2021).
7
FECA Bulletin No. 21-09 (issued April 28, 2021).

2
 Exposure to COVID-19 alone is not sufficient to establish a work-related medical condition. Manifestation of COVID-19 must occur within 21 days of the covered exposure.8 To establish a diagnosis of COVID-19, a claimant must submit the following: (1) a positive Polymerase Chain Reaction (PCR) or Antigen COVID-19 test result; or (2) a positive Antibody test result, together with contemporaneous medical evidence that the claimant had documented symptoms of and/or was treated for COVID-19 by a physician (a notice to quarantine is not sufficient if there was no evidence of illness); or (3) if no positive laboratory test is available, a COVID-19 diagnosis from a physician together with rationalized medical opinion supp orting the diagnosis and an explanation as to why a positive test result is not available. Self-administered COVID-19 testing is insufficient to establish a diagnosis of COVID-19 under FECA unless the administration of the self-test is monitored by a medical professional and the results are verified through documentation submitted by such professional. 9

Paragraph 2 of FECA Bulletin No. 21-10 provides, inter alia, “The FECA program will review all COVID-19 claims previously denied in accordance with the guidance provided in FECA Bulletin No. 21-09 based on the submission of an antigen test without contemporaneous medical to determine if the claim can now be accepted. This will occur without a request from the claimant. If the FECA program determines that the case can now be accepted under the ARPA, the case will be reopened under the Director’s own motion under Section 8128(a) of the FECA, and the case will be accepted. If this occurs, the claimant and employing agency will be notified. ”

In light of the above-noted amendments, OWCP did not take into consideration all of the applicable criteria for establishing a diagnosis of COVID-19 when it denied appellant’s claim. This case shall therefore be remanded for consideration and application of FECA Bulletin Nos. 21-09, 21-10, and 22-06 with regard to appellant’s claim for COVID-19.10 Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision.11 Accordingly,

8
Id.
9
FECA Bulletin Nos. 21-09 (issued April 28, 2021), 21-10 (issued August 17, 2021), and 22-06 (issued February 16, 2022). FECA Bulletin No. 21-10 amended FECA Bulletin No. 21-09 in part to allow for a positive Antigen COVID-19 test result. FECA Bulletin No. 22-06 amended FECA Bulletin Nos. 21-09 and 21-10 to update COVID-19 claims processing guidelines relating to reinfection and home tests. 10 See e.g., Order Remanding Case, K.C., Docket No. 22-1066 (issued December 23, 2022), Order Remanding Case, G.C., Docket No. 21-1016 (issued September 27, 2022) (the Board remanded these cases for proper application of FECA Bulletin No. 21-09). 11 In light of the Board’s disposition regarding the merit issue, the nonmerit issue is rendered moot.

3
 IT IS HEREBY ORDERED THAT the June 4, 2021 merit decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings consistent with this order of the Board. The June 24, 2021 nonmerit decision of the Office of Workers’ Compensation Programs is set aside as moot.

Issued: June 7, 2023
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

4