S.L. and Department of Defense, Defense Commissary Agency (Board decision, February 24, 2025)

ECAB final decision. The Board affirmed OWCP’s denial because the submitted evidence did not establish a COVID-19 diagnosis under the applicable rule. 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 Defense Commissary Agency safety specialist said he developed COVID-19 after temporary duty travel to Naples, Italy. OWCP accepted the reported work exposure but denied the claim. Physicians described symptoms and a positive home test, yet did not explain why no positive laboratory test result was available. The Board found the diagnostic evidence insufficient and affirmed the denial.

Decision snapshot

• Authority: FECA; 5 U.S.C. § 8101.
• Outcome: Denial of the COVID-19 claim affirmed.
• Key point: The submitted medical evidence did not satisfy the Board’s diagnostic requirement for the claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.L., Appellant
)
)
and ) Docket No. 25-0164
)
Issued: February 24, 2025
DEPARTMENT OF DEFENSE, DEFENSE
)
COMMISSARY AGENCY,
)
Kaiserslautern, Germany, 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 JANICE B. ASKIN, Judge

JURISDICTION

On December 6, 2024 appellant filed a timely appeal from a June 26, 2024 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 in connection with the accepted employment exposure.

FACTUAL HISTORY

On October 12, 2023 appellant, then a 57-year-old Safety and Occupational Health Specialist, filed an occupational disease claim (Form CA-2) alleging that he contracted COVID-

1
5 U.S.C. § 8101 et seq.
19 due to factors of his federal employment while on temporary duty (TDY) and travel status in Naples, Italy. He noted that he first became aware of his condition on September 21, 2023 and realized its relation to his federal employment on September 23, 2023. Appellant stopped work on September 25, 2023 and returned to work on September 29, 2023.

In an undated statement, appellant provided a timeline of his COVID-19 exposure and illness. He indicated that exposure to COVID-19 occurred on September 21, 2023 when he flew from Naples International Airport to Luxembourg Airport. Appellant related that he started to experience COVID-19 symptoms, including chills and body aches, and tested positive for COVID- 19 on September 23, 2023. He indicated that he was ill from September 24 to 28, 2023 and tested negative for COVID-19 on September 30, 2023.

In an October 3, 2023 report, Dr. Mark A. Desjardins, a Board-certified family practitioner, assessed COVID-19 and rash on middle of back, which presented after appellant tested positive for COVID-19 with a home test 10 days prior. He explained that other specified viral infections characterized by skin and mucous membrane lesions were typical of that seen associated with COVID-19 infection.

In an October 10, 2023 attending physician’s report (Form CA-20), Dr. Kathryn Buikema, a Board-certified occupational medicine physician, reported a history of COVID-19 while on TDY to Naples, Italy. She noted that the timing of appellant’s positive COVID-19 test after traveling to Naples for work, and the exhibition of signs/symptoms of COVID-19 coincided with the contraction of and signs/symptoms of COVID-19.

In a development letter dated November 6, 2023, OWCP informed appellant of the deficiencies of his claim. It advised him of the type of factual and medical evidence required and provided a questionnaire for his completion. OWCP afforded appellant 60 days to respond. In a separate development letter of even date, it requested that the employing establishment provide additional information, including comments from a knowledgeable supervisor regarding appellant’s claim. OWCP afforded the employing establishment 30 days to respond.

In an undated response, the employing establishment concurred with appellant’s allegation that he was exposed to COVID-19 for four to five hours during TDY travel status while returning from Naples, Italy to Germany.

In a follow-up letter dated December 1, 2023, OWCP advised appellant that it had conducted an interim review, and the evidence remained insufficient to establish the medical component of his claim. It noted that he had 60 days from the November 6, 2023 development letter to submit the necessary evidence. OWCP further advised that if the necessary medical evidence was not received during this time, it would issue a decision based on the evidence contained in the record.

In an October 10, 2023 report, Dr. Buikema reported that appellant had a history of work- related COVID-19. She related that he had contracted COVID-19 while on a work trip to Naples, Italy. Dr. Buikema noted that the timing of appellant’s work trip and his travel from Naples, Italy to the Luxembourg, Germany Airport coincided with the correct timing of contracting COVID-19 and showing signs/symptoms of the viral illness, which were documented in the report.

2
Appellant provided a December 8, 2023 response to OWCP’s development questionnaire with a duplicate copy of his timeline of COVID-19 exposure and illness. OWCP also received a copy of Dr. Buikema’s October 10, 2023 Form CA-20.

In September 28 and 29, 2023 notes, a registered nurse related that appellant had tested positive for COVID-19 with a home test that Saturday after returning from TDY. He asserted that he needed an official test result for work confirming that he became sick at the end of his TDY.

By decision dated January 11, 2024, OWCP denied appellant’s occupational disease claim, finding that the medical evidence of record was insufficient to establish a diagnosis of COVID-19 in connection with the accepted employment exposure.

On January 24, 2024, appellant requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review. A hearing was held on April 11, 2024. Appellant testified that two independent doctors examined him and opined that he had COVID-19. He explained that he was approximately an hour and a half from the closest military hospital that was offering COVID-19 laboratory tests, and that he was too ill to get out of bed to go to the hospital. After six days, appellant sought treatment from a physician, and a few days later he sought treatment from another physician. Both physicians confirmed that he had COVID-19, but neither offered him an antibody test. No additional evidence was received.

By decision dated June 26, 2024, OWCP’s hearing representative affirmed the January 11, 2024 decision.

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

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

2
Id.
3
M.M., Docket No. 24-0615 (issued September 23, 2024); 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).

3 link between a diagnosis of COVID-19 and the accepted employment incident(s)/factor(s) is required in all claims for COVID-19 diagnosed after January 27, 2023.5

To establish a diagnosis of COVID-19, a claimant must submit the following: (1) a positive PCR or Antigen COVID-19 test result; (2) a positive Antibody test result, together with contemporaneous medical evidence that the claimant had documented symptoms of and/or was treated for COVID-19 by a physician (a notice to quarantine is not sufficient if there was no evidence of illness); or (3) if no positive laboratory test is available, a COVID-19 diagnosis from a physician together with rationalized medical opinion supporting the diagnosis and an explanation as to why a positive test result is not available. Self-administered COVID-19 tests, also called “home tests,” “at-home tests,” or “over-the-counter (OTC) tests” are insufficient to establish a diagnosis of COVID-19 under FECA unless the administration of the self -test is monitored by a medical professional and the results are verified through documentation submitted by such professional. 6

ANALYSIS

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

In support of his claim, appellant submitted medical evidence from Drs. Desjardins and Buikema. Both physicians reported that appellant’s symptoms began after his return from TDY and he subsequently tested positive for COVID-19 with a home test. Dr. Desjardins assessed COVID-19 and noted appellant had a rash on the middle of his back. He explained that skin and mucous membrane lesions were typical of that associated with the COVID-19 infection. Dr. Buikema noted that the timing of appellant’s work trip and his travel from Naples, Italy to the Luxembourg, Germany Airport coincided with the correct timing of contracting COVID-19 and the signs/symptoms of the viral illness. However, as neither physician explained why a positive laboratory test result was not available, their reports are insufficient to establish a COVID-19 diagnosis under FECA Bulletin No. 23-02.7

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

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 FECA Bulletin Nos. 21-09 (issued April 28, 2021), 21-10 (issued August 17, 2021), and 22-06 (issued February 16, 2022). FECA Bulletin No. 21-10 amended FECA Bulletin No. 21-09 in part to allow for a positive Antigen COVID-19 test result. FECA Bulletin No. 22-06 amended FECA Bulletin Nos. 21-09 and 21-10 to update COVID-19 claims processing guidelines relating to reinfection and home tests. 7 Id.; J.W., Docket No. 24-0028 (issued December 20, 2024).

4
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 in connection with the accepted employment exposure.

ORDER

IT IS HEREBY ORDERED THAT the June 26, 2024 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: February 24, 2025
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

5