L.K. and Department of Veterans Affairs, Captain James A. Lovell Federal Health Care Center, North Chicago, IL (Board decision, October 4, 2022)

ECAB remand decision. The Board set aside OWCP’s denial of continuation of pay and directed it to apply its COVID-19 guidance when deciding the filing deadline. 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 nursing assistant sought continuation of pay after reporting workplace exposure to COVID-19. OWCP denied the request because it found that she filed her injury form more than 30 days after the claimed injury date. The Board found that OWCP had failed to apply its COVID-19 guidance, which treats the last exposure before diagnosis as the injury date when the transmission time is unknown. It set aside the denial and ordered OWCP to issue a new decision under that guidance. The Board did not decide whether she qualified for pay.

Decision snapshot

• Authority: FECA Bulletin No. 21-09 uses the last exposure before diagnosis as the COVID-19 injury date for this purpose.
• Outcome: Continuation-of-pay denial set aside; claim remanded for a new decision.
• Key point: OWCP had to apply its COVID-19 date-of-injury guidance before deciding timeliness.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.K., Appellant
)
)
and ) Docket No. 22-0651
) Issued: October 4, 2022
DEPARTMENT OF VETERANS AFFAIRS,
)
CAPITAL JAMES A. LOVELL FEDERAL
)
HEALTH CARE CENTER, North Chicago, IL,
)
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 JAMES D. McGINLEY, Alternate Judge

On March 22, 2022 appellant filed a timely appeal from a March 14, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 22-0651.

On February 27, 2022 appellant, then a 68-year-old nursing assistant, filed a traumatic injury claim (Form CA-1) alleging that on December 3, 2021 she contracted COVID-19 after she was exposed to either a patient or coworker. She explained that her symptoms began on December 3, 2021 and that her exposure could have occurred on November 30 and December 1, 2021. Appellant stopped work on December 4, 2022.

In support of her claim appellant submitted excuse slips. OWCP also received a December 5, 2021 report from Dr. Jeffrey L. Grassle, Board-certified in internal medicine, who diagnosed COVID-19 infection, based upon a PCR COVID test.

By decision dated March 14, 2022, OWCP denied appellant’s claim for continuation of pay (COP), finding that she had not reported her December 3, 2021 injury on an OWCP-approved form within 30 days of the date of 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 for COP.6 Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision. Accordingly,

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. 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).

2
 IT IS HEREBY ORDERED THAT the March 14, 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: October 4, 2022
Washington,

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

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

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

3