S.S. and Department of Veterans Affairs, West Los Angeles VA Medical Center, Los Angeles, CA (Board decision, September 15, 2023)

ECAB final decision. The Board affirmed OWCP’s December 12, 2022 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 VA nurse sought continuation of pay for a May 2022 COVID illness. She filed her traumatic injury notice in December, more than 30 days after the May 2 last exposure date used under OWCP’s COVID guidance. The Board held that the filing was too late for continuation of pay and affirmed the denial.

Decision snapshot

• Authority: FECA continuation of pay filing provision, 5 U.S.C. § 8118(a).
• Outcome: Continuation of pay denial affirmed.
• Key point: The COVID injury notice for continuation of pay must be filed within 30 days of the applicable exposure date.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.S., Appellant
)
)
and ) Docket No. 23-0524
)
Issued: September 15, 2023
DEPARTMENT OF VETERANS AFFAIRS,
)
WEST LOS ANGELES VA MEDICAL
)
CENTER, Los Angeles, CA, 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 VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 1, 2023 appellant filed a timely appeal from a December 12, 2022 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

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the December 12, 2022 decision, OWCP received additional evidence. 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.
ISSUE

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

FACTUAL HISTORY

On December 7, 2022 appellant, then a 31-year-old nurse, filed a traumatic injury claim (Form CA-1) alleging that on May 2, 2022 she contracted COVID-19 and began feeling sick while in the performance of duty. She stopped work on May 2, 2022 and returned to work on May 9, 2022.

In support of her claim, appellant submitted a May 2, 2022 positive test result for COVID-19.

By decision dated December 12, 2022, OWCP denied appellant’s claim for COP, finding that she had not reported her injury on an OWCP-approved form within 30 days of her alleged May 2, 2022 employment injury. It advised her that the COP denial 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 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.
09-563 (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 her burden of proof to establish entitlement to COP.

The record reflects that appellant filed written notice of her traumatic injury on a Form CA-1 on December 7, 2022, alleging that on May 2, 2022 she contracted COVID-19 while in the performance of duty. She stopped work on May 2, 2022. As previously noted, FECA Bulletin No. 21-09 defines date of injury as the date of last exposure, which in this case was May 2, 2022.8 As appellant filed her Form CA-1 on December 7, 2022, more than 30 days after the May 2, 2022 date of injury, the Board finds that she has not met her burden of proof.

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 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 December 12, 2022 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: September 15, 2023
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

4