J.D. and Department of Veterans Affairs, Rocky Mountain Regional VA Medical Center (Board decision, December 12, 2022)

ECAB final decision remanding case. The Board set aside OWCP's August 8, 2022 continuation of pay denial and remanded for a new decision under its COVID-19 guidance. 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

J.D., a VA support services administrator, reported a workplace COVID-19 exposure and a positive test on January 12, 2022. OWCP denied continuation of pay because he filed his injury form more than 30 days after the injury date it used. The Board found that OWCP had not applied its COVID-19 guidance, which uses the last exposure before medical evidence of infection as the injury date. It set aside the denial and directed OWCP to reconsider the pay claim under that guidance.

Decision snapshot

• Authority: Continuation of pay, 5 U.S.C. § 8118(a); notice of injury, 5 U.S.C. § 8122(a)(2).
• Outcome: Continuation of pay denial set aside; case remanded for a new decision.
• Key point: OWCP must apply its COVID-19 injury date guidance when deciding continuation of pay eligibility.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.D., Appellant
)
)
and ) Docket No. 22-1222
) Issued: December 12, 2022
DEPARTMENT OF VETERANS AFFAIRS,
)
ROCKY MOUNTAIN REGIONAL VA
)
MEDICAL CENTER, Aurora, CO, 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
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

On August 15, 2022 appellant filed a timely appeal from an August 8, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 22-1222.

On July 25, 2022 appellant, then a 47-year-old support services administrator, filed a traumatic injury claim (Form CA-1) alleging that on January 12, 2022 he contracted COVID-19 when he was exposed to a coworker with COVID-19 while in the performance of duty. He indicated that he tested positive for COVID-19 on January 12, 2022. On the reverse side of the claim form appellant’s supervisor acknowledged that appellant’s injury occurred while in the performance of duty. Appellant stopped work on January 12, 2022 and returned on January 24, 2022.

In support of his claim, appellant submitted a laboratory test result for an antigen test dated January 12, 2022, which indicated that his test was positive for COVID-19.

By decision dated August 8, 2022, OWCP denied appellant’s claim for continuation of pay (COP), finding that he had not reported his injury on an OWCP-approved form within 30 days of his alleged January 12, 2022 employment injury. It noted that the denial of COP did not preclude him from filing a claim for disability due to the effects of his employment injury. The Board, having duly considered the 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 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
5 U.S.C. § 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 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) (The Board found that OWCP failed to properly develop the medical evidence by requesting the District Medical Adviser 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 August 8, 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: December 12, 2022
Washington, DC

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

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

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

3