United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

U.S. POSTAL SERVICE, ELIZABETHTOWN 

POST OFFICE, Elizabethtown, KY, Employer

__________________________________________

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Docket No. 21-1202

Issued: May 5, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 3, 2021 appellant filed a timely appeal from a June 23, 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

ISSUE

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

continuation of pay (COP).

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the June23, 2021 decision, 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 February 17, 2021 appellant, then a 61-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on January 13, 2021 she contracted COVID-19 while in the 

performance of duty. On the reverse side of the claim form, appellant’s supervisor, E.D., indicated 

that the employing establishment received notice of the injury on February 17, 2021.

On February 18, 2021 the employing establishment controverted appellant’s claim because 

there was no information as to where appellant contracted COVID-19.

In a development letter dated February 22, 2021, OWCP informed appellant that the 

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

medical evidence needed and provided a questionnaire for her 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 a January 13, 2021 laboratory test result indicating that 

appellant tested positive for COVID-19. 

A February 25, 2021 letter from M.L., the postmaster, described the employing 

establishment’s COVID-19 precautions and related that appellant was on leave several times 

around her alleged date of exposure. She stated that it was highly unlikely that appellant contracted 

COVID-19 while at work.

On March 2, 2021 M.L. responded to OWCP’s development questionnaire, describing

appellant’s employment activities in greater detail and maintaining that appellant was unlikely to 

have contracted COVID-19 while in the performance of duty. She also noted that appellant filed 

her Form CA-1 on February 12, 2021.

Appellant responded to OWCP’s development questionnaire on March 3, 2021. She 

described her employment duties, including contact with customers, and reported that there were 

several COVID-19 cases and/or exposures in her office in the weeks before her diagnosis.

A March 11, 2021 letter from L.S., an employing establishment compensation specialist 

and registered nurse, noted that appellant did not work on the reported date of injury and that 

appellant’s position did not require any tasks that would have resulted in the alleged exposure. 

In a letter dated March 16, 2021, OWCPinformed appellant of the passage of the American 

Rescue Plan Act of 2021 (ARPA) and explained that her claim would be reviewed under this new 

legislation. It advised thatthis legislation created a presumption that a federal employee diagnosed 

with COVID-19 after performing duties that required contact with coworkers or the public has an 

injury proximately caused by employment.

By decision dated June 23, 2021, OWCP accepted appellant’s claim for COVID-19. By 

separate decision of even date, it denied her claim for COP, finding that she had not reported her

injury on an OWCP-approved form “30 days following the injury.” OWCP noted that the denial 

of COP neither affected appellant’s entitlement to other compensation benefits, nor precluded her

from filing a claim for disability due to the effects of the accepted employment injury.
3

LEGAL PRECEDENT

Section 8118(a) of FECA authorizes continuation of pay, 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 a Form CA-1 

within 30 days of the date of the injury (but if that form is unavailable, using another form would 

not alone preclude receipt); and (3) begin losing time from work due to the traumatic injury within 

45 days of the injury.6

ANALYSIS

The Board finds that this case is not in posture for decision.

OWCP found that appellant’s claim for COP was untimely as she filed her Form CA-1 

more than “30 days following the employment injury.” The Board notes that appellant’s 

postmaster, M.L., indicated in a March 2, 2021 letter that appellant filed her Form CA-1 with the 

employing establishment on February 12, 2021, which would render appellant’s claim for COP 

timely filed. However, OWCP did not explain in its June 23, 2021 decision why it solely based 

its denial of appellant’s COP claim on the Form CA-1 filed on February 17, 2021 as opposed to 

the Form CA-1 that M.L. indicated appellant filed on February 12, 2021. Moreover, there is no 

indication that OWCP requested the February 12, 2021 Form CA-1 from the employing 

establishment. 

It is well established that proceedings under FECA are not adversarial in nature and, while 

appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in 

the development of the evidence, particularly when such evidence is of the character normally 

obtained from the employing establishment or other government source.7 As M.L., the postmaster, 

referenced a Form CA-1 that appellant filed on February 12, 2021, OWCP should have requested 

that the employing establishment produce the February 12, 2021 Form CA-1 before determining 

that appellant’s claim for COP is untimely filed solely based on the Form CA-1 filed on 

3

5 U.S.C. § 8118.

4

Id. at § 8122(a)(2).

5 E.M., Docket No. 20-0837 (issued January 27 2021); 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 (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).

7

See S.W., Docket No. 20-1402 (issued March 28, 2022); M.A., Docket No. 20-1590 (issued May 12, 2021); D.O., 

Docket No. 20-0006 (issued September 9, 2020); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985);Michael Gallo, 

29 ECAB 159, 161 (1978).
4

February 17, 2021. The Board is, therefore, unable to render an informed decision regarding the 

issue of whether appellant timely filed her claim for COP. Accordingly, the case shall be remanded 

for further development.

On remand OWCP shall request that the employing establishment either provide a copy of 

the February 12, 2021 Form CA-1 that M.L. indicated that appellant filed, or explain why it is 

unable to provide that Form CA-1. Following this and other such further development as deemed 

necessary, it shall issue a de novo decision regarding appellant’s entitlement to COP.

CONCLUSION

The Board finds that this case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the June 23, 2021 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: May 5, 2022

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