B.B. and Department of Defense, Department of Defense Education Activity, Alexandria, VA (Board decision, January 25, 2023)

ECAB remand decision. The Board set aside OWCP's October 24, 2022 denial of continuation of pay and remanded for a new decision applying FECA Bulletin No. 21-09; 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 Department of Defense elementary school teacher said she contracted COVID-19 after exposure to children at work. OWCP denied continuation of pay because she filed her injury claim more than 30 days after the date she identified as the injury date. The Board found that OWCP had not applied its COVID-19 guidance, which uses the last exposure before the medical evidence of diagnosis as the date of injury. It set aside the denial and directed OWCP to apply that guidance and issue a new decision. The Board did not decide whether she qualifies for continuation of pay.

Decision snapshot

• Authority: 5 U.S.C. §§ 8118(a), 8122(a)(2); 20 C.F.R. § 10.205(a); FECA Bulletin No. 21-09.
• Outcome: Continuation of pay denial set aside and remanded for a new decision.
• Key point: OWCP needed 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

________
)
B.B., Appellant
)
)
and ) Docket No. 23-0124
) Issued: January 25, 2023
DEPARTMENT OF DEFENSE, DEPARTMENT
)
OF DEFENSE EDUCATION ACTIVITY,
)
Alexandria, VA, Employer,
)
__________ )

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

ORDER REMANDING CASE

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

On November 4, 2022 appellant filed a timely appeal from an October 24, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 23-0124.

On October 6, 2022 appellant, then a 45-year-old elementary school teacher, filed a traumatic injury claim (Form CA-1) alleging that on January 27, 2022 she contracted COVID-19 when she was exposed to children for six hours in a confined space while in the performance duty. On the reverse side of the claim form, the employing establishment acknowledged that she was injured in the performance of duty, but controverted her request for continuation of pay (COP) because notice of the injury had not been reported within 30 days, noting that the injury claim was not received until October 6, 2022. Appellant stopped work on January 31, 2022 and returned to work on February 8, 2022.

In a memorandum dated March 24, 2022, the employing establishment indicated that appellant tested positive for COVID-19 on January 28, 2022.

By decision dated October 24, 2022, OWCP denied appellant’s claim for COP, finding that she had failed to report the January 27, 2022 employment injury on a form approved by OWCP within 30 days, as required. It advised her that the denial of COP did not affect her entitlement to compensation.

The Board, having duly considered the matter, concludes 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 her claim for

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.

2
COP.6 Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the October 24, 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 25, 2023
Washington, DC

Patricia H. Fitzgerald, Deputy 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

6
See Order Remanding Case, K.C., Docket No. 22-1066 (issued December 23, 2022); Order Remanding Case, T.S., Docket No. 22-0830 (issued December 19, 2022); Order Remanding Case, G.C., Docket No. 21-1016 (issued September 27, 2022).

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