U.G. and Department of Veterans Affairs, Oklahoma City VA Medical Center, Oklahoma City, OK (Board decision, September 29, 2022)

ECAB remand decision. The Board set aside OWCP's February 22, 2022 denial and remanded for a new continuation-of-pay decision; eligibility remains unresolved. Under 20 C.F.R. § 501.6(d), this order becomes final 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

A dental assistant at a VA medical center sought continuation of pay after testing positive for COVID-19. OWCP denied the request because she filed her injury claim more than 30 days after the December 30, 2021 date she reported. The Board found that OWCP had not applied FECA Bulletin No. 21-09, which uses the worker's last exposure before medical evidence of a COVID-19 diagnosis as the injury date. It set aside the denial and returned the claim for a new decision under that guidance. The Board did not decide whether she qualifies for continuation of pay.

Decision snapshot

• Authority: Continuation of pay and injury notice, 5 U.S.C. §§ 8118(a), 8122(a)(2); 20 C.F.R. § 10.205(a); FECA Bulletin No. 21-09.
• Outcome: February 22, 2022 denial set aside; claim remanded for a new decision.
• Key point: OWCP had to apply the COVID-19 injury-date guidance before deciding whether the claim was timely.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
U.G., Appellant
)
)
and ) Docket No. 22-0650
) Issued: September 29, 2022
DEPARTMENT OF VETERANS AFFAIRS,
)
OKLAHOMA CITY VA MEDICAL CENTER,
)
Oklahoma City, OK, 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
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

On March 23, 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. 22-0650.

On February 15, 2022 appellant, then a 42-year-old dental assistant, filed a traumatic injury claim (Form CA-1) alleging that on December 30, 2021 she contracted COVID-19 when conducting patient care while in the performance of duty. She indicated on the claim form that she was claiming continuation of pay (COP). On the reverse side of the claim form, appellant’s supervisor acknowledged that appellant was injured in the performance of duty. Appellant stopped work on January 3, 2022 and returned to work on January 10, 2022.

In support of her claim, appellant submitted a polymerase chain reaction (PCR) test result for COVID-19 dated January 1, 2022 administered by Dr. Tiffany Elliott, an emergency medicine specialist, which indicated that she was positive for COVID-19.

On February 17, 2022 the employing establishment controverted COP, stating that the injury was not reported on a Form CA-1 within 30 days of the injury.

By decision dated February 22, 2022, OWCP denied her claim for COP, finding that she had not reported her injury on an OWCP-approved form within 30 days of her alleged December 30, 2021 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.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 (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.

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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 February 22, 2022 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 29, 2022
Washington, DC

Alec J. Koromilas, 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

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 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).

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