E.A. and Department of Homeland Security, U.S. Customs and Border Protection, U.S. Border Patrol, Brownsville, TX (Board decision, February 22, 2023)

ECAB remand decision. The Board set aside OWCP's August 29, 2022 denial and returned the claim for a new decision that accounts for the corrected injury date. Entitlement to continuation of pay remains for OWCP to decide. 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 Border Patrol employee claimed a COVID-19 infection from a workplace exposure and sought continuation of pay. OWCP denied the claim as untimely, using August 5, 2020 as the injury date. Before that denial, the employee had corrected the date to August 5, 2022, and the employing agency confirmed the correction. OWCP's Director acknowledged that the corrected date appeared to make the claim timely and asked for a remand. The Board granted that request, set aside the denial, and directed OWCP to issue a new decision on the pay claim.

Decision snapshot

• Authority: Federal Employees' Compensation Act continuation of pay claim.
• Outcome: OWCP's August 29, 2022 denial set aside; claim remanded for a new decision.
• Key point: OWCP must consider the corrected injury date when deciding continuation of pay.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.A., Appellant
)
)
and ) Docket No. 23-0199
) Issued: February 22, 2023
DEPARTMENT OF HOMELAND SECURITY,
)
U.S. CUSTOMS AND BORDER PROTECTION,
)
U.S. BORDER PATROL, Brownsville, TX,
)
Employer
)
_________ )

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

ORDER GRANTING REMAND

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

On November 25, 2022 appellant filed a timely appeal from an August 29, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). By that decision, OWCP denied his traumatic injury claim (Form CA-1) asserting that he sustained a COVID-19 infection causally related to the accepted employment exposure as untimely filed. The Clerk of the Appellate Boards assigned Docket No. 23-0199 to appellant’s appeal.

On December 14, 2022 the Director of OWCP filed a motion to remand with the Clerk of the Appellate Boards. The Director noted that OWCP failed to consider appellant’s statement correcting the date of injury from August 5, 2020 to August 5, 2022, which had been confirmed by the employing establishment. The Director further noted that appellant had submitted the correction prior to the issuance of the August 29, 2022 decision. The Director also acknowledged that, under the facts and circumstances of this case, “where it appears that appellant’s date of injury was on ‘August 5, 2022’ and not ‘2020’, appellant’s claim was filed within 30 days of his date of injury entitling him to COP.” Consequently, the Director requested that the Board set aside OWCP’s August 29, 2022 decision and remand the case to OWCP. On remand, the Director indicated that OWCP will issue a de novo decision on appellant’s entitlement to COP for exposure to COVID-19 in the performance of duty, “and authorize the payment of appropriate benefits as claimed by appellant.”

The Clerk of the Appellate Boards served appellant with a copy of the Director’s motion to remand on December 15, 2022. No reply was received.

The Board, having duly considered this matter, grants the Director’s motion. On remand, OWCP shall further develop the case as set forth in the Director’s motion to remand, to be followed by the issuance of a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the motion to remand filed by the Director of the Office of Workers’ Compensation Programs is granted. The August 29, 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: February 22, 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

2