United States Department of Labor

Employees’ Compensation Appeals Board

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D.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

WILMINGTON VA MEDICAL CENTER, 

Wilmington, DE, Employer

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Docket No. 22-0761

Issued: October 26, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On April 6, 2022 appellant filed a timely appeal from a February 22, 2022 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.

ISSUE

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

continuation of pay (COP).

FACTUAL HISTORY

On February 17, 2022 appellant, then a 52-year-old nurse, filed a traumatic injury claim 

(Form CA-1), alleging that on December 27, 2021 she contracted COVID-19 while in the 

1

5 U.S.C. § 8101 et seq.
2

performance of duty. She noted that she filed an Occupational Safety and Health Administration 

(OSHA) Injury and Illness Incident Report (OSHA Form 301) on January 26, 2022. Appellant 

stopped work on the date of injury and returned to work on January 6, 2022.

In a February 15, 2022 statement, appellant requested authorization of COP and contended 

that her request was filed in a timely manner. She explained that her OSHA Form 301 was 

completed and filed on January 25, 2022. Appellant further explained that the form was signed by 

her supervisor and OSHA on January 26, 2022. She believed that her traumatic injury (Form 

CA-1) was filed on January 25, 2022.

Appellant submitted a copy of the OSHA Form 301, which indicated that it was signed by 

an OSHA record keeper on January 26, 2022.

Appellant also submitted a polymerase chain reaction (PCR) laboratory test result, 

collected on December 27, 2021, which indicated that she tested positive for COVID-19.

OWCP, by decision dated February 22, 2022, denied appellant’s claim for COP, finding 

that she had not reported her injury on an OWCP-approved form within 30 days of the date of the 

claimed employment injury. It noted that she 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 

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).
3

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

ANALYSIS

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

COP.

Appellant filed written notice of her traumatic injury (Form CA-1) on February 17, 2022,

alleging that on December 27, 2021 she contracted COVID-19 while in the performance of duty. 

She stopped work on December 27, 2021 and returned to work on January 6, 2022. As previously 

noted, FECA Bulletin No. 21-09 defines date of injury as the date of last exposure, which in this 

case was December 27, 2021.7 As appellant did not file written notice of her injury until 

February 17, 2022, more than 30 days after the December 27, 2021 date of injury, the Board finds 

that appellant has not met her 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 her burden of proof to establish entitlement to 

COP.

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 (issuedMarch31, 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.

7

Id.
4

ORDER

IT IS HEREBY ORDERED THAT the February 22, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 26, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board