S.R. and Department of the Army, Installation Management Command, Fort Campbell, KY (Board decision, October 21, 2022)

ECAB remand decision. The Board set aside OWCP's February 28, 2022 denial of continuation of pay and directed OWCP to apply its COVID-19 guidance and issue a new decision. 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

An Army firefighter filed a claim after testing positive for COVID-19 and using leave while away from work. OWCP denied continuation of pay because it found that his injury report came more than 30 days after the injury. The Board found that OWCP had not applied its COVID-19 guidance, which treats the date of last exposure before diagnosis as the injury date. It set aside the denial and ordered OWCP to apply that guidance before deciding the continuation-of-pay claim again. The order did not resolve the firefighter's eligibility.

Decision snapshot

• Authority: Continuation-of-pay timing rules under 5 U.S.C. §§ 8118(a), 8122(a)(2), and FECA Bulletin No. 21-09.
• Outcome: Denial of continuation of pay set aside; claim remanded for a new decision.
• Key point: OWCP must apply its COVID-19 date-of-injury guidance to the timing question.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

______
)
)
S.R., Appellant
)
) Docket No. 22-0656
and ) Issued: October 21, 2022
)
DEPARTMENT OF THE ARMY,
)
INSTALLATION MANAGEMENT
)
)
COMMAND, Fort Campbell, KY,
)
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 21, 2022 appellant filed a timely appeal from a February 28, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 22-0656.

On February 22, 2022 appellant, then a 44-year-old firefighter, filed a traumatic injury claim (Form CA-1) alleging that he contracted COVID-19 on February 15, 2021 while in the performance of duty. He became symptomatic on February 17, 2021 and tested positive on February 21, 2021. Appellant did not claim COP, but rather noted that he had used sick/annual leave. On the reverse side of the claim form, the employing establishment noted that he stopped work on February 16, 2021 and returned to work on March 2, 2021.

In a narrative statement dated February 22, 2022, appellant described his exposure to coworkers and the public due to interactions required by his job duties as a firefighter. OWCP also received a position description. Appellant submitted a February 21, 2021 test result, which indicted that an antigen test performed at the First Care Urgent Care clinic was positive for COVID-19.

By decision dated February 28, 2022, OWCP denied appellant’s claim for COP, finding that he did not report the injury on a form approved by OWCP within 30 days following the injury. It further noted that the decision affected only his entitlement to COP and did not affect his entitlement to other benefits. OWCP notified appellant that he could claim compensation for wage-loss resulting from the decision by filing a claim for compensation (Form CA-7).

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 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.”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 his claim for

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 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 cla ims as set forth in the ARPA. Previously, COVID-19 claims under FECA were processed under the guidelines provided by FECA Bulletin No. 20 -05 (released March 31, 2020) and FECA Bulletin No. 21-01 (released October 21, 2020). FECA Bulletin No. 21-09 supersedes FECA Bulletin Nos. 20-05 and 21-01.

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COP.6 Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision. Accordingly,

ORDER

IT IS HEREBY ORDERED THAT the February 28, 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 21, 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

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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