A.M. and Department of Veterans Affairs, Birmingham VA Medical Center, Birmingham, AL (Board decision, February 23, 2023)

ECAB final decision. The Board affirmed OWCP's denial of continuation of pay. The decision says this pay ruling does not determine entitlement to other compensation benefits. 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 VA practical nurse reported contracting COVID-19 on January 4, 2022 and stopped work. She filed the required traumatic injury claim form on February 7, 2022. The Board held that the filing was more than 30 days after the reported injury date, so she did not qualify for continuation of pay. It affirmed OWCP's denial of that benefit while leaving other compensation questions open.

Decision snapshot

• Authority: 5 U.S.C. §§ 8118(a) and 8122(a)(2); 20 C.F.R. § 10.205(a).
• Outcome: OWCP's February 14, 2022 denial of continuation of pay affirmed.
• Key point: The Form CA-1 was filed more than 30 days after the claimed COVID-19 injury date.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.M., Appellant
)
)
and
)
) Docket No. 22-0523
DEPARTMENT OF VETERANS AFFAIRS, ) Issued: February 23, 2023
BIRMINGHAM VA MEDICAL CENTER,
)
Birmingham, AL, Employer
)
__________ )

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

DECISION AND ORDER

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 24, 2022 appellant filed a timely appeal from a February 14, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

ISSUE

The issue is whether appellant has met her burden of proof to establish entitlement to continuation of pay (COP).

1
5 U.S.C. § 8101 et seq.
2
The Board notes that appellant submitted additional argument on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. FACTUAL HISTORY

On February 7, 2022 appellant, then a 42-year-old practical nurse, filed a traumatic injury claim (Form CA-1) alleging that she contracted COVID-19 on January 4, 2022 while in the performance of duty. She noted that on December 29, 2021 she had been assigned to perform COVID-19 testing on COVID symptomatic patients, with three out of the seven patients testing positive for COVID-19. Appellant stopped work on January 4, 2022 and returned to work on January 24, 2022.

OWCP received a January 12, 2022 report from Dr. Stephanie M. Morgan, a physician specializing in family medicine, noting that appellant had been evaluated on January 12, 2022. Dr. Morgan released appellant to return to work on January 22, 2022. She also indicated that appellant could return earlier if her COVID-19 test was negative and she was fever and symptom free for 24 hours without the use of medication.

By decision dated February 14, 2022, OWCP denied appellant’s claim for COP, finding that she did not report the injury on a form approved by OWCP within 30 days following the injury. It noted that the denial of COP did not affect her entitlement to other compensation benefits.

LEGAL PRECEDENT

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.3 This latter section provides that written notice of injury shall be given within 30 days.4 The context of section 8122 makes clear that this means within 30 days of the injury.5

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.6

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

3
Id. at § 8118(a).
4
Id. at § 8122(a)(2).
5
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). 6 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).

2 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.”7

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish entitlement to COP.

Appellant filed written notice of her traumatic injury on a Form CA-1 on February 7, 2022, alleging that on January 4, 2022 she was exposed to COVID-19 while in the performance of duty. She stopped work on January 4, 2022. As previously noted, FECA Bulletin No. 21-09 defines date of injury as the date of last exposure, which in this case was January 4, 2022.8 As appellant filed her Form CA-1 on February 7, 2022, more than 30 days after the January 4, 2022 date of injury, the Board finds that appellant has not met her 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.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish entitlement to COP.

7
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. 8 Id.

3
 ORDER

IT IS HEREBY ORDERED THAT the February 14, 2022 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 23, 2023
Washington, DC

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

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

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

4