S.M. and Department of Veterans Affairs, Providence Veterans Medical Center, Providence, RI (Board decision, May 3, 2023)

ECAB final decision. The Board affirmed OWCP’s denial of S.M.’s continuation of pay after a December 30, 2021 COVID-19 exposure. She filed the required Form CA-1 on February 1, 2022, beyond the 30-day statutory notice period. A party may petition the Board for reconsideration within 30 days of issuance unless the order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

The Board used the last exposure as the injury date under OWCP’s COVID-19 guidance. Because S.M. reported the injury on the approved form more than 30 days later, she did not meet the notice requirement for continuation of pay.

Decision snapshot

• Authority: 5 U.S.C. § 8118(a).
• Outcome: Continuation of pay denied as untimely.
• Key point: Continuation of pay denied as untimely.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.M., Appellant
)
)
and ) Docket No. 22-1169
)
Issued: May 3, 2023
DEPARTMENT OF VETERANS AFFAIRS,
)
PROVIDENCE VETERANS MEDICAL
)
CENTER, Providence, RI, Employer )
__________ )

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

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 3, 2022 appellant filed a timely appeal from a February 7, 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 1, 2022 appellant, then a 32-year-old medical clerk, filed a traumatic injury claim (Form CA-1) alleging that on December 30, 2021 she contracted an illness while in the performance of duty. On the reverse side of the claim form, appellant’s supervisor acknowledged

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5 U.S.C. § 8101 et seq. that appellant was injured in the performance of duty, acknowledged that she stopped work on December 30, 2021 and that she returned to work on January 10, 2022. The supervisor controverted COP, noting that the claim had been filed more than 30 days following the date of injury.

In support of her claim, appellant submitted positive COVID-19 polymerase chain reaction and antigen tests, noting that her date of last testing was December 30, 2021.

By decision dated February 7, 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 her alleged December 30, 2021 employment injury. It advised her that the COP denial 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 th e medical evidence establishing the COVID-19 diagnosis as the [d]ate[-]of[-i]njury since the precise time of transmission may not always be known due to the nature of the virus. ”6

2
Id. 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.

The record reflects that appellant filed written notice of her traumatic injury on a Form CA-1 on February 1, 2022, alleging that on December 30, 2021 she was exposed to COVID- 19 while in the performance of duty. She stopped work on December 30, 2021. As previously noted, FECA Bulletin No. 21-09 defines date of injury as the date of last exposure, which in this case was December 30, 2021.7 As appellant filed her Form CA-1 on February 1, 2022 more than 30 days after the December 30, 2021 date of injury, the Board finds that she has not met her burden of proof.

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 7, 2022 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: May 3, 2023
Washington, DC

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

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

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

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