S.M. and Department of Defense, Defense Health Agency, General Leonard Wood Army Community Hospital (Board decision, August 22, 2023)

ECAB remand decision. The Board set aside OWCP's January 9, 2023 denial of continuation of pay and returned the claim for a new decision under FECA Bulletin No. 21-09. Eligibility for 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 referral management coordinator at an Army community hospital sought continuation of pay after reporting a work-related COVID-19 infection. OWCP denied the request because it concluded that she had not filed the required injury form within 30 days of the injury. The Board found that OWCP had not applied its COVID guidance, which uses the last exposure before medical evidence of diagnosis as the injury date. It set aside the denial and directed OWCP to apply that rule and issue a new decision.

Decision snapshot

• Authority: FECA continuation of pay and notice provisions, 5 U.S.C. §§ 8118(a), 8122(a)(2); FECA Bulletin No. 21-09.
• Outcome: Continuation of pay denial set aside and remanded for a new decision.
• Key point: OWCP must use the COVID guidance's last-exposure rule to assess the filing deadline.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
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S.M., Appellant
)
)
and ) Docket No. 23-0382
)
Issued: August 22, 2023
DEPARTMENT OF DEFENSE, DEFENSE
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HEALTH AGENCY, GENERAL LEONARD
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WOOD ARMY COMMUNITY HOSPITAL,
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Fort Leonard Wood, MO, Employer
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__________ )

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

ORDER REMANDING CASE

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

On January 17, 2023 appellant filed a timely appeal from a January 9, 2023 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 23-0382.

On January 4, 2023 appellant, then a 62-year-old referral management coordinator, filed a traumatic injury claim (Form CA-1) alleging that she contracted COVID-19 on September 24, 2022 while in the performance of duty. On the reverse side of the claim form, the employing establishment acknowledged that appellant was injured in the performance of duty . It indicated that appellant originally filed her claim on October 13, 2022 and again on October 17, 2022 but the claim was filed under the Department of the Army when the agency had transitioned to its current name, so the claim form was returned to appellant. She stopped work on September 26, 2022 and returned to work on October 5, 2022.

Appellant submitted a laboratory test result collected on September 24, 2022, which revealed that she tested positive for COVID-19.
 On January 5, 2023 the employing establishment controverted continuation of pay (COP), asserting that the injury was not reported on a form approved by OWCP within 30 days of the injury.

By decision dated January 9, 2023, OWCP denied appellant’s claim for COP, finding that she had not reported her injury on an OWCP-approved form within 30 days of the accepted employment injury. It noted that the denial of COP did not affect her entitlement to other compensation benefits.

The Board, having duly considered the 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

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, 763-64 (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 therefore be remanded for application of FECA Bulletin No. 21-09 with regard to 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 January 9, 2023 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: August 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

6
See Order Remanding Case, K.C., Docket No. 22-1066 (issued December 23, 2022); Order Remanding Case, T.S., Docket No. 22-0830 (issued December 19, 2022); Order Remanding Case, L.W., Docket No. 22-0749 (issued September 28, 2022); Order Remanding Case, G.C., Docket No. 21-1016 (issued September 27, 2022).

3