United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.A., Appellant

and

DEPARTMENT OF THE ARMY, U.S. ARMY 

CORPS OF ENGINEERS, Detroit, MI, Employer

__________________________________________

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Docket No. 21-0041

Issued: May 3, 2021

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

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On October 2, 2020 appellant filed a timely appeal from a September 25, 2020 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

ISSUE

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

continuation of pay (COP) for the period May 11 through July 28, 2020.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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. Id.
2

FACTUAL HISTORY

On August 6, 2020 appellant, then a 61-year-old general supply specialist, filed a traumatic 

injury claim (Form CA-1) alleging that on May 4, 2020 he contracted COVID-19 after performing 

physical inventory in close proximity to a coworker who was frequently coughing while in the 

performance of duty. He stopped work on May 11, 2020 and returned to work on July 28, 2020.

In support of his claim, appellant submitted a laboratory test result, dated May 8, 2020,

which revealed that he tested positive for COVID-19.

In letters dated May 10 and 11, 2020, Dr. Janaki Annavarapu, a Board-certified internist, 

confirmed that appellant tested positive for COVID-19 and placed him off work from May 11 

through 22, 2020.

In a May 13, 2020 emergency department note, Dr. Nicole Adams, a Board-certified 

osteopath, specializing in emergency medicine, noted that appellant was experiencing chest pain 

and shortness of breath. She indicated that appellant was diagnosed with COVID-19 and 

pneumonia and continued to have fevers and chills. Dr. Adams examined appellant and diagnosed 

COVID-19, nonspecific chest pain, pneumonia of both lungs, and shortness of breath.

In a May 13, 2020 hospital note, Dr. Errol Zimmerman, a Board-certified internist, noted 

that appellant experienced right-sided chest discomfort and shortness of breath. He indicated that 

appellant had bilateral infiltrates, which were likely due to COVID-19.

Hospital discharge notes, dated June 3, 2020, showed that appellant was diagnosed with 

pneumonia due to COVID-19, sepsis, acute respiratory failure with hypoxia, elevated liver 

function tests, prophylactic measure, cardiomyopathy, pneumomediastinum, and loose stools.

In a June 12, 2020 addendum, Dr. Zimmerman noted that appellant was admitted to the 

hospital with pneumonia secondary to COVID-19 and sepsis. He indicated that appellant 

completed a course of antibiotics for superimposed bacterial infection and that computerized 

tomography (CT) scans of his chest revealed worsening lung changes. Dr. Zimmerman reported 

that appellant was awaiting long-term acute care placement.

In a development letter dated August 10, 2020, OWCP informed appellant that the 

evidence of record was insufficient to establish his claim. It advised him of the type of factual and 

medical evidence needed and provided a questionnaire for his completion. In a separate 

development letter of even date, OWCP requested that the employing establishment provide 

additional information, including comments from a knowledgeable supervisor and details 

regarding appellant’s alleged COVID-19 exposure. It afforded both parties 30 days to submit the 

necessary evidence.

OWCP subsequently received an August 7, 2020 letter from Dr. Annavarapu who 

restricted appellant to four hours of work per day until he was no longer under cardiologist care.

In an August 11, 2020 e-mail, J.G., appellant’s supervisor, responded to OWCP’s 

development questionnaire. She noted that on May 4, 2020 appellant conducted inventory in an 

isolated office for a few hours. J.G. indicated that appellant was in contact with one former 
3

employee who had been notified. She reported that appellant’s shift consisted of direct contact 

with the public and that he encountered around 10 to 20 people daily. J.G. stated that appellant 

was masked, but noted that he was working in a cluttered room that made social distancing 

difficult. In a separate e-mail of even date, the employing establishment indicated that it concurred 

with appellant’s allegation that he contracted COVID-19 in the workplace and reported that several 

of appellant’s coworkers tested positive for COVID-19.

In an August 27, 2020 memorandum of a telephone call (Form CA-110), appellant 

informed OWCP that he was hospitalized for six weeks and was unable to file his traumatic injury 

claim within 30 days. He noted that he returned to work on August 25, 2020 without restrictions.

By decision dated September 25, 2020, OWCP accepted appellant’s claim for COVID-19. 

By separate decision of even date, it denied appellant’s claim for COP, finding that he had not 

reported his injury on an OWCP-approved form within 30 days of the accepted May 4, 2020 

employment injury. OWCP noted that the denial of COP did not preclude him from filing a claim 

for disability due to the effects of the accepted employment 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 

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

The Board has held that section 8122(d)(3) of FECA,7 which allows OWCP to excuse 

failure to comply with the time limitation provision for filing a claim for compensation because of 

exceptional circumstances, is not applicable to section 8118(a), which sets forth the filing 

 

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). The Board notes that 

FECA Bulletin No. 20-05, Federal Employees Contracting COVID-19 in Performance of Duty (March 31, 2020), also 

provides that “If the employer supports the claim and that the exposure occurred, and the CA-1 is filed within 30 days, 

the employee is eligible to receive Continuation of Pay for up to 45 days.”

6 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).

7 Supra note 1 at § 8122(d)(3).
4

requirements for COP.8 Thus, there is no exception to the requirement that the claim be filed

within 30 days of the employment injury.9

ANALYSIS

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

COP for the period May 11 through July 28, 2020.

Appellant filed written notice of his traumatic injury (Form CA-1) on August 6, 2020. In 

an August 27, 2020 memorandum of a telephone call (Form CA-110), he explained that he was 

hospitalized for six weeks and was unable to timely file his traumatic injury claim within 30 days 

of the May 4, 2020 employment injury. By decision dated September 25, 2020, OWCP denied 

appellant’s request for COP, as his claim was not filed within 30 days of the accepted May 4, 2020 

employment injury. It noted that the denial of COP did not preclude him from filing a claim for 

disability due to the effects of the accepted employment injury.

The Board notes that there is no provision in FECA for excusing a late filing regarding 

COP.10 Because appellant filed written notice of his traumatic injury claim (Form CA-1) on 

August 6, 2020, the Board finds that it was not filed within 30 days of the accepted May 4, 2020 

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

appellant is not entitled to COP.

CONCLUSION

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

COP for the period May 11 through July 28, 2020.

 

8 E.M., supra note 5.

9

Id.; Dodge Osborne, 44 ECAB 849 (1993). 

10 Id.
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ORDER

IT IS HEREBY ORDERED THAT the September 25, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 3, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board