E.B. and Department of Veterans Affairs, Northern California Health Care System, Martinez VA Medical Center (Board decision, January 23, 2023)

ECAB remand decision. The Board set aside OWCP's July 25, 2022 denial of continuation of pay and returned the claim for a new decision under its COVID-19 guidance. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A VA medical instrument technician reported workplace COVID-19 exposure and later tested positive. OWCP denied his request for continuation of pay because his injury form was filed more than 30 days after the injury date he reported. The Board found that OWCP had not applied its COVID-19 guidance, which uses the last exposure before medical evidence of diagnosis as the injury date. It set aside the denial and directed OWCP to reconsider the claim under that guidance. The Board did not decide whether the worker qualifies for continuation of pay.

Decision snapshot

• Authority: Continuation of pay and notice timing, 5 U.S.C. §§ 8118(a), 8122(a)(2); 20 C.F.R. § 10.205(a).
• Outcome: July 25, 2022 denial set aside; claim remanded for a new OWCP decision.
• Key point: OWCP had to apply its COVID-19 date-of-injury guidance before deciding whether the claim was timely.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.B., Appellant
)
)
and ) Docket No. 22-1356
) Issued: January 23, 2023
DEPARTMENT OF VETERANS AFFAIRS,
)
NORTHERN CALIFORNIA HEALTH CARE
)
SYSTEM, MARTINEZ VA MEDICAL
)
CENTER, Martinez, CA, 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 VALERIE D. EVANS-HARRELL, Alternate Judge

On September 22, 2022 appellant filed a timely appeal from a July 25, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 22-1356.

On July 21, 2022 appellant, then a 59-year-old medical instrument technician, filed a traumatic injury claim (Form CA-1) alleging that on May 31, 2022 he was exposed to COVID-19 during interactions with his coworkers and patients while in the performance of duty. On the reverse side of the claim form, appellant’s supervisor acknowledged that he was injured in the performance of duty. Appellant stopped work on June 5, 2022 and returned on June 12, 2022.

In support of his claim, appellant submitted an antigen test result dated June 8, 2022, which indicated that his test was positive for COVID-19.

By decision dated July 25, 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 following the injury. It advised him that the denial of COP did not affect his entitlement to compensation benefits. 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.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) (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 July 25, 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: January 23, 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

3