M.D. and Department of Transportation, Federal Aviation Administration, White Plains, NY (Board decision, February 24, 2023)

ECAB final decision. The Board affirmed OWCP's denial of continuation of pay. The order says this decision concerns that pay benefit and does not determine entitlement to other compensation benefits. 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 air traffic controller reported contracting COVID-19 on January 7, 2022 and stopped work. She filed the required traumatic injury claim form on February 8, 2022. The Board held that she missed the 30 day filing deadline for continuation of pay and affirmed OWCP's denial of that benefit. The decision did not decide whether she was entitled to other compensation benefits.

Decision snapshot

• Authority: 5 U.S.C. §§ 8118(a) and 8122(a)(2); 20 C.F.R. § 10.205(a).
• Outcome: OWCP's February 28, 2022 denial of continuation of pay affirmed.
• Key point: The required Form CA-1 was filed more than 30 days after the claimed injury date.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.D., Appellant
)
)
and ) Docket No. 22-0771
) Issued: February 24, 2023
DEPARTMENT OF TRANSPORTATION,
)
FEDERAL AVIATION ADMINISTRATION,
)
White Plains, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On April 7, 2022 appellant filed a timely appeal from a February 28, 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.

ISSUE

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

FACTUAL HISTORY

On February 8, 2022 appellant, then a 33-year-old air traffic controller, filed a traumatic injury claim (Form CA-1) alleging that on January 7, 2022 she contracted COVID-19 while in the performance of duty. She explained that she felt symptoms and stayed home and then tested

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5 U.S.C. § 8101 et seq. positive. On the reverse side of the claim form, appellant’s supervisor, M.M., acknowledged that appellant was injured in the performance of duty. An accompanying report of work status (Form CA-3) indicated that appellant stopped work on January 7, 2022 and returned to work on January 21, 2022.

Appellant submitted a January 10, 2022 letter from an urgent care provider indicating that she tested positive for COVID-19.

By decision dated February 28, 2022, OWCP denied appellant’s claim for COP, finding that she had not reported her injury on an OWCP-approved form within 30 days of the accepted employment injury. It further noted that the decision affected only her entitlement to COP and did not affect her entitlement to other compensation benefits.

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.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

2
Supra note 1 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 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.

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 ANALYSIS

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

Appellant filed her Form CA-1 on February 8, 2022. By decision dated February 28, 2022, OWCP denied her request for COP, as her claim was not filed within 30 days of the claimed date of injury, January 7, 2022.

Because appellant filed her Form CA-1 on February 8, 2022, the Board finds that it was not filed within 30 days of the claimed January 7, 2022 employment injury, as specified in sections 8118(a) and 8122(a)(2) of FECA.7 Accordingly, appellant is not entitled to COP.

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.

7
Id.

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 ORDER

IT IS HEREBY ORDERED THAT the February 28, 2022 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 24, 2023
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

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

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