United States Department of Labor

Employees’ Compensation Appeals Board

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R.S., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Austin, TX, Employer

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Docket No. 23-0283

Issued: December 8, 2023

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 December 16, 2022 appellant filed a timely appeal from a July 11, 2022 merit decision

of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards 

assigned the appeal Docket No. 23-0283. 

On July 7, 2022 appellant, then a 67-year-old tax examiner, filed a traumatic injury claim

(Form CA-1) alleging that on May 13, 2022 he contracted COVID-19 and then developed 

pneumonia as a result of working in close contact with infected individuals while in the 

performance duty. On the reverse side of the claim form, J.H., an employing establishment 

supervisor controverted his request for continuation of pay (COP) because the claim was not filed 

within 30 days of the injury. Appellant stopped work on May 16, 2022 and returned to work on 

June 2, 2022.

In support of his claim, appellant submitted a polymerase chain reaction (PCR) test result 

dated May 17, 2022, which indicated that he was positive for COVID-19.

In a note dated May 17, 2022, Dakota Rolisonlove, a registered medical assistant, held 

appellant off work. 
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A report of chest x-ray dated May 22, 2022 revealed hazy airspace opacities in the right 

lower lobe consistent with infection, a mildly enlarged heart, and elevation of the right 

hemidiaphragm.

In a note dated May 25, 2022, Stephanie Crimi, a registered nurse, released appellant to 

return to work, effective June 2, 2022.

By decision dated July 11, 2022, OWCP denied appellant’s claim for COP, finding that he 

had failed to report the May 13, 2022 employment injury on a form approved by OWCP within 30 

days, as required. It advised him that the denial of COP did not affect his entitlement to other 

compensation benefits.

The Board, having duly considered the matter, finds that this 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 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.1 This latter section provides that written notice of injury shall be given within 30 days. 2 

The context of section 8122 makes clear that this means within 30 days of the injury. 3

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.4

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.”

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1

5 U.S.C. § 8118(a).

2

Id. at § 8122(a)(2).

3 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).

4

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).

5 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 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.
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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 claim 

for COP.6 Following this and other such further development as deemed necessary, OWCP shall 

issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the July 11, 2022 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: December 8, 2023

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

6

See Order Remanding Case, P.A., Docket No. 23-0165 (issued June 14, 2023); Order Remanding Case, B.B., 

Docket No. 23-0124 (issued January 25, 2023); Order Remanding Case, K.C., Docket No. 22-1066 (issued 

December 23, 2022); Order Remanding Case, T.S., Docket No. 22-0830 (issued December 19, 2022); Order 

Remanding Case, G.C., Docket No. 21-1016 (issued September 27, 2022).