United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.J., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

DAYTON VA MEDICAL CENTER,

Dayton, OH, Employer

__________________________________________

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Docket No. 21-1348

Issued: April 14, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 12, 2021 appellant filed a timely appeal from a May 11, 2021 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 May 11, 2021 decision, OWCP received additional evidence. 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.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish entitlement to 

continuation of pay (COP) for the period February 5 through March 10, 2021.

FACTUAL HISTORY

On March 10, 2021 appellant, then a 47-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that he contracted COVID-19 on February 5, 2021 when engaged in oneon-one patient observation while in the performance of duty. He further noted that he began to 

develop symptoms on February 7, 2021 and tested positive for COVID-19 on February 8, 2021. 

On the reverse side of the claim form R.E., an employing establishment supervisor, confirmed that 

appellant’s injury occurred while in the performance of duty. Appellant stopped work on 

February 5, 2021 and returned on March 10, 2021.

In support of his claim, appellant submitted a laboratory test result dated February 8, 2021,

which revealed that he tested positive for COVID-19.

A February 12, 2021 note from Laurie Murray, a physician assistant, noted appellant’s 

ongoing COVID-19 symptoms.

In hospital notes dated February 18, 2021, Dr. Michael Ady, a Board-certified emergency 

medicine physician, related that appellant began experiencing COVID-19 symptoms on 

February 7, 2021 and tested positive on February 8, 2021. He diagnosed pneumonia due to 

COVID-19.

A return-to-work note dated February 26, 2021 from Sharon Rodgers, a nurse practitioner, 

indicated that appellant should be held off work until further evaluation on March 5, 2021.

On March 5, 2021 Ms. Rodgers indicated that appellant could return to work on 

March 10, 2021.

In a letter of controversion dated March 22, 2021, J.K., a clinical coordinator with the 

employing establishment, indicated that the employing establishment was controverting

appellant’s claim because he worked in a non-COVID-19 unit and, therefore, did not care for 

COVID-19 patients on the alleged date of injury.

By decision dated May 11, 2021, OWCP accepted appellant’s traumatic injury claim for 

COVID-19. By decision of even date, it denied appellant’s claim for COP, finding that he did not 

report the injury on a form approved by OWCP within 30 days following the injury.

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 
3

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

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish entitlement to 

COP for the period February 5 through March 10, 2021.

Appellant filed written notice of his traumatic injury (Form CA-1) on March 10, 2021. By 

decision dated May 11, 2021, OWCP denied his request for COP, as his claim was not filed within 

30 days of the accepted February 5, 2021 employment injury. It noted that the denial of COP did 

not preclude appellant from filing a claim for disability due to the effects of the accepted 

employment injury.

Because appellant filed written notice of his traumatic injury claim (Form CA-1) on 

March 10, 2021 the Board finds that it was not filed within 30 days of the accepted February 5, 

2021 employment injury, as specified in sections 8118(a) and 8122(a)(2) of FECA. Accordingly, 

he is not entitled to COP.

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 entitlement to 

COP for the period February 5 through March 10, 2021.

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, 763-64 (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 (issuedDecember 9, 2019); J.M., Docket No. 09-

1563 (issued February 26, 2010); Dodge Osborne, 44 ECAB 849 (1993); WilliamE. Ostertag, 33 ECAB 1925 (1982).
4

ORDER

IT IS HEREBY ORDERED THAT the May 11, 2021 decision of the Office of Workers’

Compensation Programs is affirmed. 

Issued: April 14, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board