J.S. and Department of Homeland Security, Immigration & Customs Enforcement, Newark, NJ (Board decision, September 11, 2023)

ECAB remand decision. The Board set aside OWCP’s August 31, 2021 continuation of pay denial and returned the claim for use of the last workplace COVID exposure date. Eligibility 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 federal immigration employee sought continuation of pay after a claimed workplace COVID illness. OWCP denied the request without applying its guidance that uses the last exposure before diagnosis as the injury date. The Board ordered OWCP to apply that rule and issue a new decision.

Decision snapshot

• Authority: FECA continuation of pay provision, 5 U.S.C. § 8118(a), and COVID exposure guidance.
• Outcome: Continuation of pay denial set aside; exposure date remanded.
• Key point: COVID continuation of pay timing requires the correct last exposure date.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.S., Appellant
)
)
and ) Docket No. 21-1352
)
Issued: September 11, 2023
DEPARTMENT OF HOMELAND SECURITY, )
IMMIGRATION & CUSTOMS
)
ENFORCEMENT, Newark, NJ, 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 September 13, 2021 appellant filed a timely appeal from an August 31, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 21-1352.

On July 20, 2020 appellant, then a 67-year-old general attorney, filed a traumatic injury claim (Form CA-1) alleging that on March 12, 2020 he contracted COVID-19 while in the performance of duty. He stopped work on March 17, 2020.

By decision dated January 19, 2021, OWCP accepted the claim for COVID-19. It paid appellant wage-loss compensation on the supplemental rolls commencing January 17, 2021.

By separate decision also dated January 19, 2021, OWCP denied appellant’s claim for COP, finding that he had not reported his injury on an OWCP-approved form within 30 days of the accepted March 12, 2020 employment injury.

On February 9, 2021 appellant, through his then-counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review regarding the January 19, 2021 decision denying COP.
OWCP subsequently expanded its acceptance of the claim to include acute respiratory failure with hypoxia due to COVID-19, dyspnea due to COVID-19, vocal cord dysfunction due to COVID-19, pneumonia due to COVID-19, and shortness of breath due to COVID-19.

By decision dated July 12, 2021, OWCP’s hearing representative affirmed the January 19, 2021 decision.

On July 26, 2021 appellant requested reconsideration.

By decision dated August 31, 2021, OWCP denied modification.

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

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 su perior on a form approved by the Secretary of Labor within the time specified in section 8122(a)(2) of this title.1 This latter section provides that written notice of injury shall be given within 30 days. 2 The context of section 8122 makes clear that this means within 30 days of the injury. 3

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. 4

FECA Bulletin No. 21-09 at subsection II.2, however, provides that, “The FECA program considers COVID-19 to be a traumatic injury since it is contracted during a single workday or shift (see 20 C.F.R. § 10.5(ee)), and considers the date of last exposure prior to the medical evidence establishing the COVID-19 diagnosis as the Date of Injury since the precise time of transmission may not always be known due to the nature of the virus.”5

1
5 U.S.C. § 8118(a).
2
Id. at § 8122(a)(2).
3
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). 4 20 C.F.R. § 10.205(a)(1-3); see also T.S., Docket No. 19-1228 (issued December 9, 2019); J.M., Docket No. 09- 1563 (issued February 26, 2010); Dodge Osborne, 44 ECAB 849 (1993); William E. Ostertag, 33 ECAB 1925 (1982). 5 FECA Bulletin No. 21-09.II.2 (issued April 29, 2021). On March 11, 2021 the American Rescue Plan Act of 2021 (ARPA) was signed into law. Pub. L. No. 117-2. OWCP issued FECA Bulletin No. 21-09 to provide guidance regarding the processing of COVID-19 FECA claims as set forth in the ARPA. Previously, COVID-19 claims under FECA were processed under the guidelines provided by FECA Bulletin No. 20-05 (issued March 31, 2020) and FECA Bulletin No. 21-01 (issued October 21, 2020). FECA Bulletin No. 21-09 supersedes FECA Bulletin Nos. 20-05 and 21-01.

2
In denying appellant’s claim for COP, OWCP failed to consider the date of last exposure as the date of injury in accordance with the guidance in FECA Bulletin No. 21-09. This case will, therefore, be remanded for application of FECA Bulletin No. 21 -09 with regard to appellant’s claim for COP. 6 Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the August 31, 2021 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.

Issued: September 11, 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

6
See Order Remanding Case, D.P., Docket No. 23-0224 (issued July 19, 2023); Order Remanding Case, P.A., Docket No. 23-0165 (issued June 14, 2023); Order Remanding Case, L.J., Docket No. 22-1041 (issued December 30, 2022); Order Remanding Case, K.C., Docket No. 22-1066 (issued December 23, 2022).

3