United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.D., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PATROL, 

San Francisco, CA, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 21-1289

Issued: May 3, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER GRANTING MOTION TO REVERSE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

On August 26, 2021 appellant filed a timely appeal from an August 12, 2021merit decision 

of the Office of Workers’ Compensation Programs (OWCP). By that decision, a representative of 

OWCP’s Branch of Hearings and Review affirmed an April 28, 2021 decision, which denied her

claim that she sustained an injury in the performance of duty.

1

The Director of OWCP filed a motion dated October 27, 2021, requesting that the Board 

reverse OWCP’s August 12, 2021 decision and remand the case. The Director acknowledged that 

although appellant was injured off her employer’s premises, her injury occurred while obtaining a 

COVID-19 vaccine that was of significant benefit to her agency, with the agency’s encouragement, 

and at a time and place determined by the agency. The Director noted that given the significant 

benefit to the agency from appellant’s receipt of the COVID-19 vaccine, coupled with the fact that 

the employing agency was actively involved in arranging the COVID-19 vaccine and determining 

1 The Board notes that, following the August12, 2021 decision, OWCP received additional evidence. 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

the location where it would occur, appellant sustained an injury in the performance of her federal 

duties. The Director requested that the Board reverse the August 12, 2021 decision and remand 

the case. The Director indicated that, on remand, OWCP would accept that appellant’s injury was 

sustained in the performance of duty; further develop the claim to determine the nature and extent 

of appellant’s employment-related medical condition and any related disability; and authorize the 

payment of appropriate claimed benefits. 

The Board has duly considered the matter and concludes that the Director’s motion should 

be granted. Accordingly,

IT IS HEREBY ORDERED THAT the motion to reverse filed by the Director of the 

Office of Workers’ Compensation Programs is granted. The decision of OWCP dated August 12, 

2021 is reversed and the case is remanded for further proceedings consistent with this order of the 

Board.

Issued: May 3, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board