S.U. and Department of Veterans Affairs, Palo Alto VA Medical Center, Palo Alto, CA (Board decision, June 9, 2023)

ECAB remand decision. The Board granted OWCP's motion, set aside its November 28, 2022 decision, and sent the continuation of pay claim back for development of the injury date. Entitlement to 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).

Plain-English summary

A VA employee claimed continuation of pay after reporting COVID-19 contracted at work. OWCP asked the Board to set aside its decision because the record did not establish the correct injury date or clearly show when the employee stopped work. Those facts mattered to his eligibility for continuation of pay. The Board granted the motion and ordered OWCP to develop the record and issue a new decision. It did not decide eligibility itself.

Decision snapshot

• Authority: OWCP Director's motion to remand for development of the injury date.
• Outcome: Prior decision set aside and remanded.
• Key point: OWCP needed the injury date and work stoppage facts before deciding continuation of pay.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
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S.U., Appellant
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and ) Docket No. 23-0294
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Issued: June 9, 2023
DEPARTMENT OF VETERANS AFFAIRS,
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PALO ALTO VA MEDICAL CENTER,
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Palo Alto, CA, Employer
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__________ )

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

ORDER GRANTING REMANDING

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

On December 26, 2022 appellant filed a timely appeal from a November 28, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 23-0294.

The Director of OWCP filed a motion on January 9, 2023, requesting that the Board set aside OWCP’s November 28, 2022 decision and remand the case for further specified development. The Director noted that although appellant’s November 22, 2022 traumatic injury claim (Form CA-1) for having contracted COVID-19 while in the performance of duty included a date of injury of October 16, 2022, the record reveals that he was not tested until October 24, 2022. The Director further noted that the record is unclear as to “when exactly appellant stopped working” and, on appeal, appellant contends that his date of injury was October 25, 2022. The Director acknowledged “that there is no indication” regarding why OWCP listed October 16, 2022 as the date of injury as the evidence of record did not support that this was the date of actual exposure because appellant was exposed to an ill coworker on that date. The Director conc luded that under the facts and circumstances of this case, the date of injury is unclear “and, therefore, appellant’s entitlement to COP is uncertain.” On remand, the Director indicated that OWCP will further develop the record to determine the date of injury, to be followed by a de novo decision on appellant’s entitlement to COP for exposure to COVID-19 while in the performance of duty.
The Clerk of the Appellate Boards served appellant with a copy of the Director’s motion to remand on January 19, 2023. No response was received.

The Board, having duly considered the matter, concludes that, for all of the reasons espoused by the Director in his motion to remand, this motion shall be granted. Accordingly,

IT IS HEREBY ORDERED THAT the motion to remand filed by the Director of the Office of Workers’ Compensation Programs is granted. The November 28, 2022 decision of OWCP is set aside and the case is remanded for further proceedings consistent with this order of the Board.

Issued: June 9, 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

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