United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

ROCKY MOUNTAIN REGIONAL VA 

MEDICAL CENTER, Aurora, CO, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 22-1222

Issued: December 12, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

On August 15, 2022 appellant filed a timely appeal from an August 8, 2022 merit decision 

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

assigned Docket No. 22-1222. 

On July 25, 2022 appellant, then a 47-year-old support services administrator, filed a 

traumatic injury claim (Form CA-1) alleging that on January 12, 2022 he contracted COVID-19 

when he was exposed to a coworker with COVID-19 while in the performance of duty. He

indicated that he tested positive for COVID-19 on January 12, 2022. On the reverse side of the 

claim form appellant’s supervisor acknowledged that appellant’s injury occurred while in the 

performance of duty. Appellant stopped work on January 12, 2022 and returned on 

January 24, 2022.

In support of his claim, appellant submitted a laboratory test result for an antigen test dated 

January 12, 2022, which indicated that his test was positive for COVID-19.

By decision dated August 8, 2022, OWCP denied appellant’s claim for continuation of pay 

(COP), finding that he had not reported his injury on an OWCP-approved form within 30 days of 

his alleged January 12, 2022 employment injury. It noted that the denial of COP did not preclude 

him from filing a claim for disability due to the effects of his employment injury.
2

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 atsubsection II.2. however provides that “The FECA program 

considersCOVID-19 to be a traumatic injury since it is contracted duringa single workday orshift 

(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.”

5

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 remandedfor applicationof 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,

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)wassigned intolaw. Pub.L.No. 117–2. OWCP issuedFECABulletin No. 21-09toprovideguidance

regarding the processing ofCOVID-19 FECAclaimsasset forth in the ARPA. Previously, COVID-19 claims under

FECAwere processed underthe guidelines providedbyFECABulletinNo. 20-05(issuedMarch31, 2020) andFECA

Bulletin No. 21-01 (issued October 21, 2020). FECABulletin No. 21-09 supersedes FECABulletin Nos. 20-05 and

21-01.

6

See e.g., Order Remanding Case, W.G., Docket No. 18-0451 (issued February 21, 2019) (The Board found that 

OWCP failed to properly develop the medical evidence by requesting the District Medical Adviser to provide an 

impairment rating in accordance with the new guidance in FECA Bulletin No. 17-06 for consistently rating upper 

extremity impairments. The Board remanded the case for further development consistent with OWCP procedures in 

FECA Bulletin No. 17-06); Order Remanding Case, H.W., Docket No. 10-404 (issued September 28, 2011) (The 

Board remanded the case to OWCP for selection of another impartial medical specialist in accordance with its 

procedures).
3

IT IS HEREBY ORDERED THAT the August 8, 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 12, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board