J.M. and U.S. Postal Service, Post Office, Edison (Board decision, November 27, 2023)

ECAB final decision. The Board affirmed OWCP's denial of continuation of pay for failure to file the injury form within 30 days. 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 postal mail handler assistant said he contracted COVID-19 at work on November 30, 2022 and sought continuation of pay for missed work. He filed his injury form on January 8, 2023. The Board held that this was more than 30 days after the stated exposure date, missing the deadline for continuation of pay. It affirmed OWCP's denial of that benefit. OWCP had advised that he could still file a claim for lost wages through a separate compensation form.

Decision snapshot

• Authority: 5 U.S.C. §§ 8118(a), 8122(a)(2); 20 C.F.R. § 10.205(a).
• Outcome: Denial of continuation of pay affirmed.
• Key point: The injury form must be filed within 30 days to qualify for continuation of pay.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.M., Appellant
)
)
and ) Docket No. 23-0412
)
Issued: November 27, 2023
U.S. POSTAL SERVICE, POST OFFICE, )
Edison, NJ, Employer
)
__________ )

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

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge

JURISDICTION

On January 31, 2023 appellant filed a timely appeal from a January 23, 2023 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2

ISSUE

The issue is whether appellant has met his burden of proof to establish entitlement to continuation of pay (COP).

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the January 23, 2023 decision, OWCP received additional evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.
FACTUAL HISTORY

On January 8, 2023 appellant, then a 47-year-old mail handler assistant, filed a traumatic injury claim (Form CA-1) alleging that on November 30, 2022 he contracted COVID-19 “at the facility” while in the performance duty. On the reverse side of the claim form the employing establishment controverted his request for COP because notice of the injury had not been reported within 30 days, noting that the injury claim was not received until January 8, 2023. Appellant stopped work on the date of injury and returned to work on December 9, 2022.

In support of his claim, appellant submitted a polymerase chain reaction (PCR) test result dated November 30, 2022, which indicated a positive result for COVID-19.

By decision dated January 23, 2023, OWCP denied appellant’s claim for COP, finding that he had failed to report the November 30, 2022 employment injury on a form approved by OWCP within 30 days, as required. It advised him that the denial of COP did not affect his entitlement to compensation, and that he could, therefore, file a Form CA-7 for lost wages due to the employment injury.

LEGAL PRECEDENT

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.3 This latter section provides that written notice of injury shall be given within 30 days. 4 The context of section 8122 makes clear that this means within 30 days of the injury. 5

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. 6

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

3
Supra note 1 at § 8118(a).
4
Id. at § 8122(a)(2).
5
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). 6 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).

2 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.”7

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish entitlement to COP.

The record reflects that appellant filed written notice of his traumatic injury on a Form CA-1 on January 8, 2023, alleging that on November 30, 2022 he was exposed to COVID-19 while in the performance of duty. As previously noted, FECA Bulletin No. 21 -09 defines date of injury as the date of last exposure, which in this case was November 30, 2022.8 As appellant filed his Form CA-1 on January 8, 2023, more than 30 days after the November 30, 2022 date of injury, the Board finds that he has not met his burden of proof.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish entitlement to COP.

7
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. 8 Id.

3
ORDER

IT IS HEREBY ORDERED THAT the January 23, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: November 27, 2023
Washington, D.C.

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

4