R.C. and Department of Veterans Affairs, West Haven VA Medical Center, West Haven, CT (Board decision, July 13, 2023)

ECAB remand decision. The Board set aside OWCP's July 25, 2022 denial of continuation of pay and directed it to apply the COVID-19 date-of-injury guidance before issuing a new decision. 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 nurse reported workplace COVID-19 exposure and sought continuation of pay after testing positive. OWCP denied the request because it treated his claim form as filed more than 30 days after the injury. The Board found that OWCP had not applied its COVID-19 guidance, which uses the date of last exposure before medical confirmation as the injury date. It set aside the denial and ordered OWCP to reconsider the timing under that guidance. The Board did not decide whether the nurse ultimately qualified for continuation of pay.

Decision snapshot

• Authority: 5 U.S.C. §§ 8118(a) and 8122(a)(2), continuation of pay and injury notice timing.
• Outcome: Continuation of pay denial set aside; case remanded for a new decision.
• Key point: OWCP must use its COVID-19 exposure date guidance when applying the 30-day filing rule.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
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R.C., Appellant
)
)
and ) Docket No. 23-0300
)
Issued: July 13, 2023
DEPARTMENT OF VETERANS AFFAIRS,
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WEST HAVEN VA MEDICAL CENTER,
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West Haven, CT, 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
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge

On December 8, 2022 appellant filed a timely appeal from a July 25, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 23-0300.

On July 17, 2022 appellant, then a 34-year-old nurse, filed a traumatic injury claim (Form CA-1) alleging that on June 16, 2022 he was exposed to COVID-19 during interactions with his patients and coworkers while in the performance of duty. He noted that he developed symptoms on June 17, 2022 and tested positive for COVID-19 on June 18, 2022. On the reverse side of the claim form, appellant’s supervisor did not indicate the date he stopped work, but acknowledged that he was injured in the performance of duty.

In support of his claim, appellant submitted an antigen test result dated June 18, 2022, which revealed that he tested positive for COVID-19.

On July 25, 2022 OWCP received a work status report (Form CA-3) indicating that appellant stopped work on June 17, 2022.

By decision dated July 25, 2022, OWCP denied appellant’s claim for continuation of pay (COP), finding that he had not reported his June 16, 2022 injury on an OWCP-approved form within 30 days following the injury. It further noted that the decision affected only her entitlement to COP and did not affect her entitlement to other benefits. OWCP notified appellant that she could claim compensation for wage loss resulting from the decision by filing a claim for compensation (Form CA-7).

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 appellant’s claim

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 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 July 25, 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: July 13, 2023
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6
See Order Remanding Case, V.M., Docket No. 21-1096 (issued May 5, 2023); 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).

3