D.P. and Department of Veterans Affairs, Des Moines VA Medical Center, Des Moines, IA (Board decision, July 19, 2023)

ECAB remand decision. The Board set aside OWCP's September 19, 2022 denial of continuation of pay and directed it to apply the COVID-19 injury date rule in FECA Bulletin No. 21-09. Eligibility for 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).

Plain-English summary

A VA pharmacist sought continuation of pay after reporting COVID-19 exposure at work. OWCP denied the request because it found that he had filed his injury form too late. The Board held that OWCP had not used the last exposure before the medical diagnosis as the injury date, as required by its COVID-19 guidance. It set aside the denial and ordered a new decision; the separate hearing issue became moot.

Decision snapshot

• Authority: FECA continuation of pay provisions, 5 U.S.C. §§ 8118(a) and 8122(a)(2); FECA Bulletin No. 21-09.
• Outcome: Pay denial set aside and remanded for a new injury date analysis.
• Key point: COVID-19 continuation of pay timeliness must use the last exposure before medical diagnosis as the injury date.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.P., Appellant
)
)
and ) Docket No. 23-0224
) Issued: July 19, 2023
DEPARTMENT OF VETERANS AFFAIRS,
)
DES MOINES VA MEDICAL CENTER,
)
Des Moines, IA, 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
JANICE B. ASKIN, Judge
JAMES D. McGINLEY, Alternate Judge

On December 2, 2022 appellant filed a timely appeal from a September 19, 2022 merit decision and a November 17, 2022 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 23 -0224 to the appeal.

On September 13, 2022 appellant, then a 50-year-old pharmacist, filed a traumatic injury claim (Form CA-1) alleging that on July 2, 2022 he contracted COVID-19 when he was exposed to a coworker diagnosed with COVID-19 while in the performance of duty. On the reverse side of the claim form, C.F., an employing establishment supervisor, confirmed that appellant’s injury occurred while in the performance of duty. Appellant stopped work on July 5, 2022 and returned on July 15, 2022.

By decision dated September 19, 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 of the accepted employment injury. It noted that the denial of COP did not affect his entitlement to other compensation benefits. OWCP notified appellant that he could file a claim for compensation (Form CA-7) for lost wages due to the alleged employment injury. In an appeal request form dated September 26, 2022 and received by OWCP on November 2, 2022 appellant requested a hearing before a representative of OWCP’s Branch of Hearings and Review. By decision dated November 17, 2022, OWCP denied his request for a hearing, finding that it was untimely filed. It further exercised its discretion and determined that the issue in the case could equally well be addressed by a request for reconsideration before OWCP along with the submission of new evidence.

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

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 (released March 31, 2020) and FECA Bulletin No. 21-01 (released October 21, 2020). FECA Bulletin No. 21-09 supersedes FECA Bulletin Nos. 20-05 and 21-01.

2 appellant’s claim for 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 September 19, 2022 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for f urther proceedings consistent with this order of the Board. 7

Issued: July 19, 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

6
See Order Remanding Case, L.J., Docket No. 22-1041 (issued December 30, 2022); see also Order Remanding Case, K.C., Docket No. 22-1066 (issued December 23, 2022). 7 In light of the Board’s disposition regarding the COP issue, the issue regarding the denial of appellant’s hearing as untimely filed is moot.

3