D.M. and Department of Veterans Affairs, West Roxbury VA Medical Center, West Roxbury, MA (Board decision, July 11, 2023)

ECAB final decision. The Board affirmed OWCP's August 29, 2022 denial of continuation of pay because the worker filed her injury claim more than 30 days after the COVID-19 exposure date. The order concerns continuation of pay, not other compensation benefits. 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

A VA nurse reported contracting COVID-19 at work on January 4, 2022 and stopped work that day. She filed her injury claim form on February 8. The Board used January 4 as the date of last exposure under OWCP's COVID-19 guidance. Because the form was filed more than 30 days later, the Board affirmed denial of continuation of pay. The decision did not rule out other compensation benefits.

Decision snapshot

• Authority: 5 U.S.C. §§ 8118(a) and 8122(a)(2), continuation of pay and the 30-day notice requirement.
• Outcome: Continuation of pay denial affirmed.
• Key point: The COVID-19 last-exposure date controls the 30-day filing period for continuation of pay.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.M., Appellant
)
)
and ) Docket No. 23-0108
)
Issued: July 11, 2023
DEPARTMENT OF VETERANS AFFAIRS,
)
WEST ROXBURY VA MEDICAL CENTER,
)
West Roxbury, MA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On October 31, 2022 appellant filed a timely appeal from an August 29, 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 e stablish entitlement to continuation of pay (COP).

FACTUAL HISTORY

On February 8, 2022 appellant, then a 35-year-old licensed practical nurse, filed a traumatic injury claim (Form CA-1) alleging that on January 4, 2022 she contracted COVID-19

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5 U.S.C. § 8101 et seq. while in the performance of duty. She stopped work on January 4, 2022 and returned on January 18, 2022. On the reverse side of the claim form, appellant’s supervisor acknowledged that appellant was injured in the performance of duty.

In support of her claim, appellant submitted a polymerase chain reaction (PCR) test result for COVID-19 dated January 6, 2022, which indicated that a nasal swab collected on January 4, 2022 was positive for COVID-19.

In a February 15, 2022 letter, the employing establishment controverted the claim as appellant had not filed her claim within 30 days from the date of injury.

By decision dated February 22, 2022, OWCP denied appellant’s claim for COP, finding that she had not reported the January 4, 2022 injury on an OWCP-approved form within 30 days of the date of the accepted employment injury. It further noted that the decision affected only her entitlement to COP and did not affect her entitlement to other compensation benefits.

Thereafter, OWCP received a series of e-mails to and from the employing establishment regarding the procedures for filing a compensation claim for COVID-19.

On March 6, 2022 appellant requested a telephonic hearing before a representative of OWCP’s Branch of Hearings and Review, which was held on June 15, 2022.

By decision dated August 29, 2022, OWCP’s hearing representative affirmed the February 22, 2022 decision.

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

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).

2 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 [d]ate of [i]njury since the precise time of transmission may not always be known due to the nature of the virus.”6

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 8, 2022, alleging that on January 4, 2022 she contracted COVID-19 while in the performance of duty. She stopped work on January 4, 2022. As previously noted, FECA Bulletin No. 21-09 defines date of injury as the date of last exposure, which in this case was January 4, 2022.7 As appellant filed her Form CA-1 on February 8, 2022, more than 30 days after the January 4, 2022 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.

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. 7 Id.

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 ORDER

IT IS HEREBY ORDERED THAT the August 29, 2022 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: July 11, 2023
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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