D.M. and Department of Veterans Affairs, Jesse Brown VA Medical Center, Chicago, IL (Board decision, February 16, 2023)

ECAB final decision. The Board affirmed OWCP's denial of continuation of pay because the injury form was filed outside the 30 day period. OWCP had separately accepted the COVID-19 claim and paid wage-loss compensation for part of the absence. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A VA health aid technician reported a workplace COVID-19 exposure on October 17, 2021. She filed the injury form on November 30, explaining that illness and lack of knowledge of the deadline had delayed her. OWCP accepted her COVID-19 claim and paid wage-loss compensation for part of her absence, but denied continuation of pay. The Board held that the injury form came more than 30 days after the applicable injury date and affirmed that denial. The ruling did not disturb the separate acceptance of the COVID-19 claim.

Decision snapshot

• Authority: 5 U.S.C. §§ 8118(a) and 8122(a)(2); FECA Bulletin 21-09.
• Outcome: OWCP's February 1, 2022 continuation of pay denial affirmed.
• Key point: Continuation of pay has a separate 30 day filing deadline even when OWCP accepts the injury claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.M., Appellant
)
)
and ) Docket No. 22-0614
) Issued: February 16, 2023
DEPARTMENT OF VETERANS AFFAIRS,
)
JESSE BROWN VA MEDICAL CENTER,
)
Chicago, IL, 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 JANICE B. ASKIN, Judge
JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 23, 2022 appellant filed a timely appeal from a February 1, 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

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the issuance of the February 1, 2022 decision, OWCP received additional evidence. 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.

ISSUE

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

FACTUAL HISTORY

On November 30, 2021 appellant, then a 47-year-old health aid technician, filed a traumatic injury claim (Form CA-1) alleging that on October 17, 2021 she was exposed to COVID-19 when she completed a one-to-one close observation with a patient, while in the performance of duty. She indicated that she had tested positive for COVID-19. Appellant stopped work on October 17, 2021 and returned to work on November 29, 2021.

By decision dated December 10, 2021, OWCP denied appellant’s claim for COP, finding that she had not reported the October 17, 2021 injury on an OWCP-approved form within 30 days of the date of injury. It further noted that the decision affected only her entitlement to COP and did not affect her entitlement to other benefits. OWCP notified appellant that she could claim compensation for wage loss by filing a claim for compensation (Form CA-7).

On December 24, 2021 appellant requested reconsideration. She argued that she did not file the required form within 30 days of the date of injury, as she was very ill and was unaware of the requirement.

By decision dated January 25, 2022, OWCP accepted appellant’s claim for COVID-19.
The record reflects that she received wage-loss compensation on the supplemental rolls from October 25 to November 29, 2021.

By decision dated February 1, 2022, OWCP denied modification of the December 10, 2021 decision.

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

3
Supra note 1 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).

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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 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.”7

ANALYSIS

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

The record reflects that appellant filed written notice of her traumatic injury on a Form CA-1 on November 30, 2021, alleging that on October 17, 2021 she was exposed to COVID-19. She stopped work on October 17, 2021. As previously noted, FECA Bulletin No. 21-09 defines date of injury as the date of last exposure, which in this case was October 17, 2021.8 As appellant filed her Form CA-1 on November 30, 2021 more than 30 days after the October 17, 2021 date of injury, the Board finds that she 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.

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). 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.

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ORDER

IT IS HEREBY ORDERED THAT the February 1, 2022 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 16, 2023
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4