A.A. and Department of Veterans Affairs, Raymond G. Murphy Medical Center (Board decision, May 14, 2024)

ECAB final decision. The Board affirmed OWCP's denial of the COVID-19 claim because the evidence did not connect the diagnosis to the accepted employment exposure. 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 mail clerk who visited mail stops around the medical center sought compensation after a positive COVID-19 antigen test. OWCP accepted his reported work exposure but denied the claim for lack of medical evidence linking it to his infection. The Board held that the test confirmed a diagnosis but offered no opinion about where he contracted the virus. It affirmed OWCP's July 13, 2023 denial.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.; Board review under 20 C.F.R. §§ 501.2(c) and 501.3.
• Outcome: COVID-19 claim denial affirmed.
• Key point: A positive test alone did not establish that the accepted workplace exposure caused the infection.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.A., Appellant
)
)
and ) Docket No. 23-1066
)
Issued: May 14, 2024
DEPARTMENT OF VETERANS AFFAIRS,
)
RAYMOND G. MURPHY MEDICAL CENTER, )
Albuquerque, NM, 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
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On August 2, 2023 appellant filed a timely appeal from a July 13, 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.

ISSUE

The issue is whether appellant has met his burden of proof to establish a diagnosis of COVID-19 causally related to the accepted employment exposure.

FACTUAL HISTORY

On April 4, 2023 appellant, then a 58-year-old mail clerk, filed an occupational disease claim (Form CA-2) alleging that he contracted COVID-19 due to factors of his federal employment, including interacting with dozens of people, patients, and employees while visiting mail stops. He noted that he first became aware of his condition and realized its relationship to his 1 5 U.S.C. § 8101 et seq. federal employment on March 22, 2023. Appellant stopped work on March 22, 2023 and returned to work on April 3, 2023.

In a development letter dated April 6, 2023, OWCP informed appellant of the deficiencies of his claim. It advised him of the type of factual and medical evidence needed, including a narrative medical report from a treating physician explaining how his work activities resulted in a diagnosis of COVID-19, and provided a questionnaire for his completion. In a separate letter of even date, OWCP requested that the employing establishment provide additional information, including comments from a knowledgeable supervisor regarding the accuracy of appellant’s contentions. It afforded both parties 60 days to submit the necessary evidence.

OWCP received a COVID-19 antigen test result dated March 27, 2023, which indicated that appellant had tested positive for COVID-19.

In an April 19, 2023 response to OWCP’s development questionnaire, appellant described his job duties, which included delivering mail all day, five days per week.

In a further statement dated April 28, 2023, appellant indicated that he felt ill on March 22, 2023 and was referred by employee health to undergo a COVID-19 test, which he did. On March 23, 2023 he received a telephone call from an employee health physician, who advised him that he tested positive for COVID-19. Appellant noted that he underwent a second COVID-19 test on March 27, 2023, which was administered by a nurse, and was also positive for COVID-19. He indicated that the mailroom where he worked had not been delivering mail for over two years, and within one week of restarting mail delivery to over 90 employing establishment departments and buildings, he tested positive for COVID-19. Appellant further noted that J.W. and S.H., two other mailroom employees, tested positive for COVID-19 at approximately the same time.

By decision dated July 13, 2023, OWCP denied the claim, finding that the medical evidence did not establish a causal relationship between the diagnosis of COVD-19 and the accepted employment exposure.

LEGAL PRECEDENT

An employee seeking benefits under FECA 2 has the burden of proof to establish the essential elements of his or her claim, including that the individual is an employee of the United States within the meaning of FECA, that the claim was timely filed within the applicable time limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that any disability or medical condition for which compensation is claimed is causally related to the employment injury. 3 These are the essential elements of each and every compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 4

2
Id.
3
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988). 4 B.H., Docket No. 20-0777 (issued October 21, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

2
To establish a claim for COVID-19 diagnosed after January 27, 2023, a claimant must provide: (1) evidence of a COVID-19 diagnosis; (2) evidence that establishes the claimant actually experienced the employment incident(s) or factor(s) alleged to have occurred; (3) evidence that the alleged incident(s) or factor(s) occurred while in the performance of duty; and (4) evidence that the COVID-19 condition is found by a physician to be causally related to the accepted employment incident(s) or factor(s). A rationalized medical report establishing a causal link between a diagnosis of COVID-19 and factors of federal employment is required in all claims for COVID-19 diagnosed after January 27, 2023.5

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish a diagnosis of COVID-19 causally related to the accepted employment exposure.

In support of his claim, appellant submitted a March 27, 2023 COVID-19 antigen test result, which indicated that he had tested positive for COVID-19. The Board has held, however, that diagnostic test reports, standing alone, lack probative value as they do not provide an opinion on causal relationship between the diagnosed condition and the accepted employment exposure. 6 This evidence is, therefore, insufficient to establish the claim.

As the medical evidence of record is insufficient to establish a diagnosis of COVID-19 causally related to the accepted employment exposure, the Board finds that appellant has not met his 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 his burden of proof to establish a diagnosis of COVID-19 causally related to the accepted employment exposure.

5
FECA Bulletin No. 23-02 (issued December 15, 2022). In accordance with the Congressional intent to end the specialized treatment of COVID-19 claims for federal workers’ compensation under section 4016 of the American Rescue Plan Act (ARPA) of 2021, Public Law 117-2 (March 11, 2021), OWCP issued FECA Bulletin No. 23-02, which updated its procedures for processing claims for COVID-19 diagnosed after January 27, 2023. 6 L.M., Docket No. 23-0946 (issued December 18, 2023); T.H., Docket No. 18-1736 (issued March 13, 2019).

3
ORDER

IT IS HEREBY ORDERED THAT the July 13, 2023 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: May 14, 2024
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

4