J.S. and Department of Veterans Affairs, Captain James A. Lovell Federal Health Care Center, North Chicago, IL (Board decision, December 5, 2022)

ECAB remand decision. The Board set aside OWCP's denial of continuation of pay and directed it to apply FECA Bulletin 21-09 when deciding the claim anew. Entitlement to 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

J.S., a VA motor vehicle operator, filed a claim after a positive COVID-19 test. OWCP denied continuation of pay because he had filed his injury form more than 30 days after the reported injury date. The Board found that OWCP had not applied its COVID-19 guidance, which treats the last exposure before a medical diagnosis as the injury date when the exact transmission time is unknown. It sent the claim back for OWCP to apply that guidance and issue a new decision. The Board did not decide whether J.S. qualifies for continuation of pay.

Decision snapshot

• Authority: FECA continuation of pay timing rules, 5 U.S.C. §§ 8118(a), 8122(a)(2), and FECA Bulletin 21-09.
• Outcome: Continuation of pay denial set aside; claim remanded for new review.
• Key point: OWCP had to apply its COVID-19 date of injury guidance before deciding whether the filing was timely.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.S., Appellant
)
)
and ) Docket No. 22-0854
) Issued: December 5, 2022
DEPARTMENT OF VETERANS AFFAIRS,
)
CAPTAIN 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 May 12, 2022 appellant filed a timely appeal from a January 26, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate Boards assigned the appeal Docket No. 22-0854.

On January 11, 2022 appellant, then a 51-year-old motor vehicle operator, filed a traumatic injury claim (Form CA-1) alleging that he contracted COVID-19 on October 7, 2021 while in the performance of duty. He noted that at the end of his work shift on October 7, 2021 he started feeling sick and feverish. 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 October 12, 2021 and returned to work on December 13, 2021.

1
The Board notes that, following the January 26, 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. In support of his claim, appellant submitted a nucleic acid amplification, polymerase chain reaction test result dated October 10, 2021, which indicated that he was positive for COVID-19.

In a letter dated January 13, 2022, the employing establishment controverted appellant’s entitlement to continuation of pay (COP), asserting that the claim was filed more than 30 days after the date of injury.

By decision dated January 26, 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.

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.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
U.S.C. § 8118(a).
3
Id. at § 8122(a)(2).
4
K.E., Docket No. 22-0482 (issued June 16, 2022); 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, 763-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985). 5 20 C.F.R. § 10.205(a)(1-3); see also L.S., Docket No. 21-1064 (issued April 14, 2022); 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 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 (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.

2
 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.7 Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the January 26, 2022 decision of the Office of Workers’ Compensation Programs is set aside and case is remanded for further proceedings consistent with this order of the Board.

Issued: December 5, 2022
Washington, DC

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

7
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).

3