B.J. and U.S. Postal Service, Cornell Station, Bronx, NY (Board decision, August 17, 2023)

ECAB final decision. The Board affirmed OWCP's February 6, 2023 denial of continuation of pay. 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 lead clerk sought continuation of pay after time away from work related to alleged COVID-19 exposure. The Board used December 28, 2022 as the injury date under OWCP's COVID guidance and found that her January 30, 2023 injury form was filed more than 30 days later. She argued on appeal that postal management had misplaced earlier paperwork, but the Board could not consider evidence submitted after OWCP's final decision. It affirmed the denial of continuation of pay, which did not decide her entitlement to other compensation benefits.

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 affirmed for late filing.
• Key point: The Board assessed timeliness from the December 2022 last-exposure date and the injury form in the record.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
B.J., Appellant
)
) Docket No. 23-0507
and ) Issued: August 17, 2023
)
U.S. POSTAL SERVICE, CORNELL STATION,
)
Bronx, NY, Employer
)
__________ )

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

DECISION AND ORDER

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

JURISDICTION

On February 28, 2023 appellant filed a timely appeal from a February 6, 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 her 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 February 6, 2023 merit decision, OWCP received additional evidence, including a handwritten Form CA-1. 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 30, 2023 appellant, then a 61-year-old lead clerk, filed a traumatic injury claim (Form CA-1) alleging that on that day she contracted COVID-19 while in the performance of duty. On the reverse side of the claim form, the employing establishment controverted the claim, contending that appellant did not contract COVID-19 at work rather, she was at home when she contracted the condition. Appellant stopped work on December 28, 2022 and returned on January 9, 2023.

By decision dated February 6, 2023, OWCP denied appellant’s claim for COP, finding that she had not reported the alleged December 28, 2022 injury on an OWCP-approved form within 30 days of the date of the injury. It further noted that the decision affected only her entitlement to COP and did not affect her entitlement to other compensation benefits.

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

3
Id. 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 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.”7

ANALYSIS

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

Appellant filed her Form CA-1 on January 30, 2023. She stopped work on December 28, 2022. As previously noted, FECA Bulletin No. 21-09 defines date of injury as the date of last exposure, which in this case was December 28, 2022.8

Because appellant filed her Form CA-1 on January 30, 2023, the Board finds that it was not filed within 30 days of the alleged December 28, 2022 employment injury, as specified in section 8118(a) and 8122(a)(2) of FECA. Accordingly, she is not entitled to COP.9

On appeal appellant contends that she returned to work on January 9, 2023 and completed and submitted all the necessary paperwork for her claim. She further contended, however, that she had to resubmit the paperwork because employing establishment management misplaced the paperwork and acknowledged its error. The Board is precluded from reviewing evidence which was not of record as of the date of OWCP’s final decision. 10

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met her 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 (ARPA) of 2021 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.
9
See L.J., Docket No. 22-1187 (issued January 4, 2023); H.J., Docket No. 22-0772 (issued August 25, 2022);
J.T., Docket No. 22-0588 (issued July 20, 2022).
10
20 C.F.R. § 501.2(c)(1).

3
 ORDER

IT IS HEREBY ORDERED THAT the February 6, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: August 17, 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

4