H.M. and Department of Veterans Affairs, New Orleans VA Medical Center (Board decision, June 6, 2024)

ECAB remand decision. The Board set aside OWCP’s continuation-of-pay decision and remanded for application of its COVID injury-date guidance; entitlement 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A New Orleans VA nurse sought continuation of pay after reporting a COVID-19 illness linked to patient care. OWCP denied the benefit based on when he filed the injury form. The Board found OWCP had not applied its guidance using the last workplace exposure before diagnosis as the injury date. It returned the claim for that analysis and a new decision.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Continuation-of-pay denial set aside for COVID guidance review.
• Key point: OWCP had to determine the injury date under its COVID exposure rule.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
H.M., Appellant
)
)
and ) Docket No. 23-1054
)
Issued: June 6, 2024
DEPARTMENT OF VETERANS AFFAIRS,
)
NEW ORLEANS VA MEDICAL CENTER,
)
New Orleans, LA, 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
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge

On August 2, 2023 appellant filed a timely appeal from a February 21, 2023 merit decision of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate Boards assigned the appeal Docket No. 23-1054.

On February 10, 2023 appellant, then a 53-year-old registered nurse, filed a traumatic injury claim (Form CA-1) alleging that on July 29, 2021 he contracted COVID-19 when taking care of patients in the intensive care unit while in the performance of duty. He indicated that he tested positive for COVID-19 on July 31, 2021. On the reverse side of the claim form, T.C., an employing establishment supervisor, confirmed that appellant’s injury occurred while in the performance of duty. Appellant stopped work on August 2, 2021, and returned on September 3, 2021.

1
The Board notes that, following the February 21, 2023 decision, appellant submitted additional evidence to OWCP. 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.
Appellant submitted a laboratory test result, dated July 31, 2021, which was positive for COVID-19.

By decision dated February 21, 2023, OWCP denied appellant’s claim for continuation of pay (COP), finding that he had not reported his injury on an OWCP-approved form within 30 days of the claimed employment injury. It further noted that the decision affected only his entitlement to COP and did not affect his entitlement to other benefits.

The Board, having duly considered this matter, finds that th e 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 their immediate superior on a form approved by the Secretary of Labor within the time specified in section 8122(a)(2) of this title.2 This latter section provides that written notice of injury shall be given within 30 days. 3 The context of section 8122 makes clear that this means within 30 days of the injury. 4

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. 5

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.”6

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 appellant’s

2
5 U.S.C. § 8118(a).
3
Id. at § 8122(a)(2).
4
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). 5 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). 6 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.

2 claim for COP. 7 Following this and other such further development as deemed necessary, OWCP shall issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the February 21, 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: June 6, 2024
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

7
See Order Remanding Case, R.S., Docket No. 23-0283 (issued December 8, 2023); Order Remanding Case, I.C., Docket No. 23-0572 (issued October 23, 2023); Order Remanding Case, N.S., Docket No. 22-0593 (issued September 29, 2022).

3