S.A. and Department of Veterans Affairs, Palo Alto VA Medical Center, Palo Alto, CA (Board decision, August 14, 2023)

ECAB remand decision. The Board set aside OWCP's January 4, 2023 denial of continuation of pay and remanded for application of its COVID-19 guidance and a new decision. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A VA nurse sought continuation of pay after testing positive for COVID-19 and missing work in November 2022. OWCP denied the claim because she filed her injury form more than 30 days after the date she gave for the injury. The Board found that OWCP had not applied its COVID-19 guidance, which treats the last exposure before diagnosis as the injury date when assessing a claim. It set aside the denial and directed OWCP to apply that guidance and issue a new decision. Eligibility for continuation of pay remains unresolved.

Decision snapshot

• Authority: FECA continuation of pay, 5 U.S.C. §§ 8118(a), 8122(a)(2); 20 C.F.R. § 10.205(a).
• Outcome: Denial set aside; claim remanded for a new decision.
• Key point: OWCP must apply its COVID-19 guidance when determining the injury date for continuation of pay.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.A., Appellant
)
)
and ) Docket No. 23-0384
)
Issued: August 14, 2023
DEPARTMENT OF VETERANS AFFAIRS,
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PALO ALTO VA MEDICAL CENTER,
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Palo Alto, CA, Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

On January 18, 2023 appellant filed a timely appeal from a January 4, 2023 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 23-0384.

On December 23, 2022 appellant, then a 37-year-old nurse, filed a traumatic injury claim (Form CA-1) alleging that on November 14, 2022 she contracted COVID-19 while in the performance of duty. On the reverse side of the claim form, the employing establishment acknowledged that she was injured in the performance of duty, but controverted continuation of pay (COP) because the claim was not filed within 30 days of the injury. Appellant stopped work on November 16, 2022 and returned to work on November 27, 2022.

Appellant submitted a polymerase chain reaction test result collected on November 17, 2022, by the employing establishment, which revealed that she tested positive for COVID-19.

On November 22, 2022 Dr. Bruce P. Lawrence, a Board-certified family practitioner, indicated that appellant was unable to perform her duties from November 15 through 27, 2022 and could return to work on November 28, 2022. By decision dated January 4, 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 therefore be remanded for application of FECA Bulletin No. 21 -09 with regard to her claim for

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.

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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 4, 2023 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceeding consistent with this order of the Board.

Issued: August 14, 2023
Washington, DC

Janice B. Askin, 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, P.A., Docket No. 23-0165 (issued June 14, 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).

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