C.J. and U.S. Postal Service, Post Office, Havre de Grace, MD (Board decision, September 25, 2023)

ECAB remand decision. The Board set aside OWCP’s January 30, 2023 denial of continuation of pay and returned the claim to determine the last workplace COVID exposure date. Eligibility 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 postal carrier technician sought continuation of pay after a COVID diagnosis. OWCP denied the request because her injury notice was filed more than 30 days after the date she identified. The Board found that OWCP had not adequately developed the date of last workplace exposure used under its COVID guidance. It ordered a new decision after that date is determined.

Decision snapshot

• Authority: FECA continuation of pay provision, 5 U.S.C. § 8118(a), and COVID exposure guidance.
• Outcome: Continuation of pay denial set aside; exposure date remanded.
• Key point: The last exposure date must be developed before applying the 30 day notice rule to a COVID claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.J., Appellant
)
)
and ) Docket No. 23-0631
)
Issued: September 25, 2023
U.S. POSTAL SERVICE, POST OFFICE, )
Havre de Grace, MD, Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

On March 20, 2023 appellant filed a timely appeal from a January 30, 2023 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 23-0631.

On January 25, 2023 appellant, then a 64-year-old carrier technician, filed a traumatic injury claim (Form CA-1) alleging that on May 5, 2022 she contracted COVID-19 while in the performance of duty. She explained that she tested positive on May 6, 2022 after frequent high- risk exposure to coworkers and the public while sorting and delivering mail for eight hours a day, five days a week, and experienced fever, body aches, and fatigue. Appellant stopped work on May 6, 2022 and returned on May 19, 2022.

In support of her claim, appellant submitted an undated photograph of a COVID-19 at- home test strip.

By decision dated January 30, 2023, OWCP denied appellant’s claim for continuation of pay (COP), finding that she had not reported her injury on an OWCP-approved form within 30 days of the alleged May 5, 2022 employment injury. It noted that she could claim compensation for wage loss resulting from the decision by filing a claim for compensation (Form CA-7).
The Board, having duly considered this 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 properly develop the case to determine the date of last exposure. This case will 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,

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. 6 See Order Remanding Case, J.T., Docket No. 23-0372 (issued June 12, 2023); 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, F.G., Docket No. 22-0859 (issued November 29, 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).

2
IT IS HEREBY ORDERED THAT the January 30, 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: September 25, 2023
Washington, DC

Alec J. Koromilas, 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

3