F.G. and Department of Transportation, Federal Aviation Administration, Tampa, FL (Board decision, November 29, 2022)

ECAB remand decision. The Board set aside OWCP's February 7, 2022 denial of continuation of pay and directed it to determine the proper date of last COVID-19 exposure. 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 air traffic controller tested positive for COVID-19 and sought continuation of pay. OWCP denied that benefit because he filed his injury form more than 30 days after the date he reported as the injury date. The Board found that OWCP had not determined his last workplace exposure under its COVID-19 guidance, which could affect the filing period. It set aside the denial and ordered a new decision after that fact is developed.

Decision snapshot

• Authority: Continuation of pay under 5 U.S.C. § 8118(a) and FECA Bulletin No. 21-09.
• Outcome: Continuation of pay denial set aside; case remanded.
• Key point: The last exposure date must be established before applying the filing deadline to a COVID-19 claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
F.G., Appellant
)
)
and ) Docket No. 22-0859
) Issued: November 29, 2022
DEPARTMENT OF TRANSPORTATION,
)
FEDERAL AVIATION ADMINISTRATION,
)
Tampa, FL, 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 JANICE B. ASKIN, Judge

On May 14, 2022 appellant filed a timely appeal from a February 7, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 22-0859.

On January 29, 2022 appellant, then a 37-year-old air traffic controller, filed a traumatic injury claim (Form CA-1) alleging that on December 12, 2021 he contracted COVID-19 while in the performance of duty. He indicated on his claim form that he was claiming COP. On the reverse side of the claim form, appellant’s supervisor did not indicate the date that appellant stopped work, but acknowledged that appellant was injured in the performance of duty. The employing establishment controverted COP as the claim was not filed within 30 days of the injury.

In support of his claim, appellant submitted a COVID-19 antigen test result dated December 19, 2021, demonstrating a positive COVID-19 test result.

By decision dated February 7, 2022, OWCP denied appellant’s claim for COP, finding that he had not reported his injury on an OWCP-approved form within 30 days of his alleged December 12, 2021 employment injury. It noted that the denial of COP did not preclude appellant from filing a claim for disability (Form CA-7) due to the effects of his claimed injury. The Board has duly considered the matter and 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 properly develop the case to determine the date of last exposure. 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) (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 February 7, 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: November 29, 2022
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

3