United States Department of Labor

Employees’ Compensation Appeals Board

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J.M., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS AND BORDER PROTECTION, 

Miami, FL, Employer

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Docket No. 23-0018

Issued: March 3, 2023

Appearances: Case Submitted on the Record

Appellant, pro se,

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

On October 6, 2022 appellantfiled a timely appealfrom an August 24, 2022merit 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 entitlement to 

continuation of pay (COP). 

FACTUAL HISTORY

On August 18, 2022 appellant, then a 39-year-old general biological science technician,

filed a traumatic injury claim (Form CA-1) alleging that on July 7, 2022 he contracted COVID-19 

while in the performance of duty. He related that he experienced chest congestion, coughing, sore 

throat, and subsequently tested positive for COVID-19. The CA-1 form indicated that appellant’s 

1

5 U.S.C. § 8101 et seq.
2

regular work hours were from 6:00 a.m. to 2:00 p.m. Tuesday through Saturday, and that appellant

stopped work at 6:00 a.m. on July 8, 2022 and returned to work on July 15, 2022.

Appellant submitted July 9, 2022 visit notes from Markira Stewart, a physician assistant, 

who noted that a COVID-19 antigen test was performed on that date with a positive result. 

By decision dated August 24, 2022, OWCP denied appellant’s claim for COP, finding that 

he had not reported his injury on an OWCP-approved form within 30 days of his alleged July 7,

2022 employment injury. It noted that he could claim compensation for wage loss resulting from 

the decision by filing a claim for compensation (Form CA-7).

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 

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 CFR 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

2

Id. at § 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).; WilliamE. Ostertag, 33 ECAB 

1925(1982).

6 FECA Bulletin No. 21-09.II.2 (issued April29, 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 March31, 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.
3

ANALYSIS

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

COP. 

The record reflects that appellant filed written notice of his traumatic injury on a 

Form CA-1 on August 18, 2022, alleging that on July 7, 2022 he contracted COVID-19 while in 

the performance of duty. He related that he experienced chest congestion, coughing, sore throat, 

and subsequently tested positive for COVID-19. The Form CA-1 indicates that appellant’s work 

schedule was 6:00 a.m. to 2:00 p.m. Tuesday through Saturday, and that appellant stopped work 

at 6:00 a.m. on July 8, 2022. Since 6:00 a.m. on July 8, 2022 was the beginning of his work shift, 

the Board finds that appellant’s date of last exposure was July 7, 2022. 

As previously noted, FECA Bulletin No. 21-09 defines date of injury as the date of last 

exposure, which in this case was July 7, 2022.

7

 As appellant filed his Form CA-1 on August 18, 

2022, more than 30 days after the July 7, 2022 date of injury, 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 entitlement to 

COP. 

7

Id.
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ORDER

IT IS HEREBY ORDERED THAT the August 24, 2022 merit decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 3, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board