M.M. and Department of Veterans Affairs, Veterans Health Administration, Aurora, CO (Board decision, September 28, 2022)

ECAB remand decision. The Board set aside OWCP's February 22, 2022 denial of continuation of pay and ordered it to apply the COVID-19 guidance for determining the injury date. Eligibility for 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 VA nurse reported contracting COVID-19 at work and submitted a positive test dated January 3, 2022. OWCP denied continuation of pay because his injury form was filed more than 30 days after the injury date he reported. The Board found that OWCP had not considered its COVID-19 guidance, which uses the last exposure before diagnosis as the injury date when transmission timing is uncertain. It set aside the denial and directed OWCP to issue a new decision after applying that guidance.

Decision snapshot

• Authority: 5 U.S.C. §§ 8118(a) and 8122(a)(2); FECA Bulletin No. 21-09.
• Outcome: Continuation of pay denial set aside and remanded.
• Key point: OWCP had to apply its COVID-19 injury-date rule before deciding whether the filing met the 30-day deadline.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.M., Appellant
)
)
and ) Docket No. 22-0595
) Issued: September 28, 2022
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS HEALTH ADMINISTRATION,
)
Aurora, CO, 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
JANICE B. ASKIN, Judge
JAMES D. McGINLEY, Alternate Judge

On March 4, 2022 appellant filed a timely appeal from a February 22, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 22-0595.

On February 10, 2022 appellant, then a 38-year-old nurse, filed a traumatic injury claim (Form CA-1) alleging that on December 30, 2021 he contracted COVID-19 while in the performance of duty. On the reverse side of the claim form the employing establishment controverted his request for COP because notice of the injury had not been reported within 30 days, noting that the injury claim was not received until February 10, 2022.1 Appellant stopped work on January 3, 2022 and returned to work on January 11, 2022.

In support of his claim, appellant submitted a polymerase chain reaction (PCR) COVID- 19 test result dated January 3, 2022, which indicated that he was positive for COVID-19.

By decision dated February 22, 2022, OWCP denied appellant’s claim for COP, finding that he had failed to report the December 30, 2021 employment injury on a form approved by

1
OWCP processed the claim as a short form closure.
OWCP within 30 days, as required. It advised him that the denial of COP did not affect his entitlement to compensation, and that he could, therefore, file a claim for compensation (Form CA-7) for lost wages due to the alleged employment injury.

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

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. 5

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.”6

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

2
Id. at § 8118(a).
3
Id. at § 8122(a)(2).
4
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). 5 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). 6 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 (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 for COP.7 Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the February 22, 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: September 28, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7
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 impairments. 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