L.R. and U.S. Postal Service, Processing & Distribution Center, Greenville, SC (Board decision, October 17, 2022)

ECAB remand decision. The Board set aside OWCP's February 7, 2022 denial of continuation of pay and directed it to apply its COVID-19 guidance before issuing a new decision. Entitlement to continuation of pay 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 postal mail processing clerk sought continuation of pay after reporting a COVID-19 exposure at work. OWCP denied the request because he filed his injury claim more than 30 days after the reported exposure date. The Board found that OWCP had not applied its COVID-19 guidance, which uses the last exposure before medical evidence of diagnosis as the injury date when transmission time is uncertain. It set aside the denial and directed OWCP to apply that guidance and issue a new decision. The Board did not decide whether the worker qualified for continuation of pay.

Decision snapshot

• Authority: FECA continuation-of-pay requirements and FECA Bulletin No. 21-09.
• Outcome: Denial of continuation of pay set aside; claim remanded for a new decision.
• Key point: OWCP had to apply its COVID-19 date-of-injury guidance before assessing the filing deadline.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.R., Appellant
)
)
and ) Docket No. 22-0510
) Issued: October 17, 2022
U.S. POSTAL SERVICE, PROCESSING &
)
DISTRIBUTION CENTER, Greenville, SC,
)
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 JANICE B. ASKIN, Judge

JURISDICTION

On February 15, 2022 appellant filed a timely appeal from a February 7, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 22-0510.

On January 25, 2022 appellant, then a 32-year-old mail processing clerk, filed a traumatic injury claim (Form CA-1) alleging that on December 25, 2021 he contracted COVID-19 from a coworker while in the performance of duty. He indicated that he received positive COVID-19 results on December 30, 2021 and immediately reported it to his supervisor. Appellant stopped work on December 30, 2021 and returned to work on January 6, 2022.

In support of his claim, appellant submitted a polymerase chain reaction laboratory test result, collected on December 27, 2021 which revealed that he tested positive for COVID-19.

By decision dated February 7, 2022, OWCP denied appellant’s claim for COP, finding that he had not reported the December 25, 2021 injury on an OWCP-approved form within 30 days of the date of injury. It further noted that the decision affected only his entitlement to COP and did not affect his entitlement to other benefits. OWCP notified appellant that he could claim compensation for wage-loss resulting from the decision by filing a claim for compensation (Form CA-7).

The Board, having duly considered this 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 superior 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 CFR 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

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

1
Id. at § 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 762-64 (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 (ARPA) of 2021 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 (released March 31, 2020) and FECA Bulletin No. 21-01 (released October 21, 2020). FECA Bulletin No. 21-09 supersedes FECA Bulletin Nos. 20-05 and 21-01.

2 for COP.6 Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision. Accordingly,

ORDER

IT IS HEREBY ORDERED THAT the February 7, 2022 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.

Issued: October 17, 2022
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6
See e.g., Order Remanding Case, W.G., Docket No. 18-0451 (issued February 21, 2019) (The Board found that OWCP failed to properly develop the medical evidence by requesting the DMA to provide an impairment rating in accordance with the new guidance in FECA Bulletin No. 17-06 for consistently rating upper extremity im pairments. The Board remanded the case for further development consistent with OWCP procedures in FECA Bulletin No. 17-06); Order Remanding Case, H.W., Docket No. 10-404 (issued September 28, 2011) (The Board remanded the case to OWCP for selection of another impartial medical specialist in accordance with its procedures).

3