A.H. and Department of Homeland Security, U.S. Customs & Border Protection, Dulles International Airport, Dulles, VA (Board decision, June 16, 2023)

ECAB final decision. The Board affirmed OWCP's September 19, 2022 denial of continuation of pay. 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 Customs and Border Protection agent stopped work after testing positive for COVID-19. He filed his traumatic injury form nearly three months after the date identified as his last workplace exposure. The Board held that the filing missed the 30-day deadline for continuation of pay and affirmed OWCP's denial. The decision concerned continuation of pay only, leaving other possible compensation benefits unaddressed.

Decision snapshot

• Authority: FECA continuation of pay deadline, 5 U.S.C. § 8118(a); 20 C.F.R. § 10.205(a).
• Outcome: Denial of continuation of pay affirmed.
• Key point: A COVID-19 claim form filed beyond 30 days of the injury date does not qualify for continuation of pay.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.H., Appellant
)
)
and ) Docket No. 23-0171
)
Issued: June 16, 2023
DEPARTMENT OF HOMELAND SECURITY, )
U.S. CUSTOMS & BORDER PROTECTION, )
DULLES INTERNATIONAL AIRPORT,
)
Dulles, VA, 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
JANICE B. ASKIN, Judge
JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 14, 2022 appellant filed a timely appeal from a September 19, 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 his burden of proof to establish entitlement to continuation of pay (COP).

FACTUAL HISTORY

On September 14, 2022 appellant, then a 40-year-old border patrol agent, filed a traumatic injury claim (Form CA-1) alleging that he contracted COVID-19 on June 19, 2022 while in the

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5 U.S.C. § 8101 et seq. performance of duty. He noted that he started feeling sick with coughing and a runny nose. Appellant stopped work on June 19, 2022 and returned to work on June 27, 2022. On the reverse side of the form, appellant’s immediate supervisor noted, “[i]njured worked [sic] can[no]t be compensated COP as he filed [Form CA-1] past 30 days from date of injury.”

In support of his claim, appellant submitted an antigen test, collected on June 19, 2022 which revealed that he had tested positive for COVID-19 on that date.

By decision dated September 19, 2022, OWCP denied appellant’s claim for COP, finding that he had not reported his injury on an OWCP-approved form within 30 days of the June 19, 2022 employment injury. It further noted that the decision affected only his entitlement to COP and did not affect his 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 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., 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.”6

2
Id. at § 8118(a).
3
Id. at § 8118(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 his burden of proof to establish entitlement to COP.

The record reflects that appellant filed written notice of his traumatic injury on a Form CA-1 on September 14, 2022, alleging that on June 19, 2022 he was exposed to COVID-19 while in the performance of duty. He stopped work on June 19, 2022.

As previously noted, FECA Bulletin No. 21-09 defines date of injury as the date of last exposure, which in this case was June 19, 2022.7 As appellant did not submit written notice of injury on an approved form until September 14, 2022, more than 30 days after the June 19, 2022 date of injury, the Board finds that he is not entitled to COP.8

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 his burden of proof to establish entitlement to COP.

7
Id.
8
See A.G., Docket No. 20-0942 (issued February 14, 2022).

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 ORDER

IT IS HEREBY ORDERED THAT the September 19, 2022 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: June 16, 2023
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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