United States Department of Labor

Employees’ Compensation Appeals Board

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D.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

ATLANTA VA MEDICAL CENTER, 

Decatur, GA, Employer

__________________________________________

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Docket No. 22-0329

Issued: July 1, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. MCGINLEY, Alternate Judge

On December 27, 2021 appellant filed a timely appeal from a July 19, 2021 merit decision 

and a November 22, 2021 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). The Clerk of the Appellate Boards docketed the appeal as No. 22-0329.1

On December 18, 2020 appellant, then a 47-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on that day, while undergoing a COVID-19 test after being exposed to 

COVID-19 while in the performance of duty, she felt ear pain and nasal bleeding that would not 

stop for which she had to be taken to an emergency room. She stopped work on that date. 

OWCP received December 18, 2020 discharge instructions, which indicated that she was 

seen for a nosebleed.

1 The Board notes that appellant submitted new 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

In December 22, 2020, January 25 and March 16, 2021 development letters, OWCP 

explained that appellant’s job was designated high risk and that to accept her claim, it only needed 

a copy of the laboratory test result confirming the diagnosis of COVID-19. It explained that 

appellant must submit the actual laboratory test with her name and the date of the test, and that if 

she did not have a laboratory test, she could establish her claim through submission of a statement 

from a doctor indicating that she tested positive for COVID-19, together with any supporting 

evidence the doctor used to make that determination. OWCP afforded appellant 30 days to submit 

the necessary evidence. 

A December 18, 2020 emergency room report from Dr. Kathleen M. Gunchick, Boardcertified in emergency medicine, noted that appellant’s chief complaint was “nosebleed from 

Covid test.” She explained that while appellant was getting a COVID-19 test in her left nostril, 

she felt severe pain in her left ear and her left nostril started bleeding. Dr. Gunchick related that 

appellant had no previous history of nosebleeds, the bleeding was easily controlled by pressure,

and the patient was stable and discharged. She diagnosed left anterior nosebleed, traumatic, 

resolved COVID-19 symptoms. 

OWCP received a December 18, 2020 employee health record, which indicated that 

appellant underwent drive through COVID-19 testing and thereafter reported intense pain in the 

left ear, a bloody nose, muffled hearing on the left, and an abrasion of her nasal tissue. The report 

revealed that appellant’s COVID-19 test result was negative.

In a January 7, 2021 report, Dr. Lisa Perry-Gilkes, a Board-certified otolaryngologist, 

noted that appellant reported a left earache, loss of hearing in the left ear, and ringing in the left 

ear. She noted that appellant had shooting pain, throbbing pain, deep pain, and distorted sounds,

and that the symptoms were so severe they limited her daily activities, interfered with work,

required television and radio at high volume, and interfered with sleep. Dr. Perry-Gilkes 

diagnosed: otalgia of left ear; tinnitus of left ear; hearing loss in left ear; dizziness and giddiness;

other specified disorders of external ear, unspecified ear; dysfunction of eustachian tube on the 

left; and environmental allergy. She noted that “[a]ll symptoms started after her Covid test on the 

left.”

In a January 26, 2021 report, Dr. Perry-Gilkes noted appellant’s nose bleeds had stopped,

butshe was still having slight ear pain and occasional ringing. She diagnosed: otalgia of left ear;

tinnitus of left ear, improved with cerumen removal; hearing loss in left ear, improved with 

cerumen removal; dizziness and giddiness, small ear canal, cerumen removed; other specified 

disorders of external ear, unspecified ear; dysfunction of eustachian tube on the left; and 

environmental allergy. 

In a February 26, 2021 report, Dr. Perry-Gilkes noted the otalgia of the left ear was 

improved, the left ear tinnitus and hearing loss had resolved, dizziness and giddiness had 

controlled, the small ear canal and left eustachian tube had other unspecified disorders, and 

appellant had an environmental allergy. 

In a development letter dated June 17, 2021, OWCP again requested that appellant submit 

a positive COVID-19 test result. It also informed appellant that additional evidence was needed 

to support that she was injured while performing any duty of her employment. OWCP noted that 
3

she indicated that the date of injury was December 18, 2020 and inquired whether she was directed 

by the employing establishment to be tested on that date. It afforded her 30 days to submit the 

necessary evidence. 

By decision dated July 19, 2021, OWCP denied appellant’s traumatic injury claim,finding 

that the medical evidence was insufficient to establish a diagnosis of COVID-19 in connection 

with the accepted employment exposure. It concluded, therefore, that the requirements had not 

been met to establish an injury as defined by FECA. 

In a July 27, 2021 memorandum of telephone call (Form CA-110), appellant informed 

OWCP that she was not claiming COVID-19 and she was claiming a nasal injury. 

On July 27, 2021 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review. 

On September 24, 2021 OWCP’s hearing representative informed appellant that her 

hearing was scheduled for November 10, 2021 at 9:30 a.m. Eastern Standard Time (EST), mailed 

the notice to appellant’s last known address of record, and provided instructions on how to 

participate. Appellant did not appear at the hearing or request postponement. 

By decision dated November 22, 2021, OWCP found that appellant failed to attend the 

scheduled hearing, failed to request postponement of the hearing and, therefore, abandoned her 

hearing request. 

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

FECA at 5 U.S.C. § 8124(a) provides that OWCP shall determine and make findings of 

fact and make an award for or against payment of compensation. OWCP’sregulations at 20 C.F.R. 

§ 10.126 provide that the decision of the Director of OWCP shall contain findings of fact and a 

statement of reasons. As well, OWCP’s procedures provide that the reasoning behind OWCP’s 

decision should be clear enough for the reader to understand the precise defect of the claim and 

the kind of evidence, which would overcome it.2

In the July 19, 2021 decision, OWCP denied the claim because the medical evidence was 

insufficient to establish a diagnosis of COVID-19. However, appellant also alleged that she 

sustained nasal and ear injuries as a result of taking a COVID-19 test and submitted medical 

evidence. The July 19, 2021 decision did not discuss the medical evidence, which addresses that 

appellant sustained nasal and ear injuries when taking a COVID-19 test for work and summarily 

denied the claim solely because appellant’s COVID-19 test result was negative.

The Board therefore finds that OWCP did not discharge its responsibility to set forth 

findings of fact and a clear statement of reasons explaining the disposition so that appellant could 

2 Federal (FECA) Procedure Manual, Part 2 --Claims, Disallowances, Chapter 2.1400.5 (February 2013).
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understand the basis for the decision. This case must, therefore, be remanded to OWCP to provide 

detailed reasons for accepting or rejecting the claim.

3

Accordingly, the Board will set aside the July 19, 2021 decision and remand the case for 

OWCP to review the evidence and argument in support of appellant’s reconsideration request, 

make findings of fact, and provide a statement of reasons for its decision, pursuant to the standards 

set forth in section 5 U.S.C. § 8124(a) and 20 C.F.R. § 10.126.4 After such further development 

as OWCP deems necessary, it shall issue a de novo decision.

IT IS HEREBY ORDERED THAT the July 19, 2021 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. The November 22, 2021 decision of the Office of Workers’

Compensation Programs is set aside as moot.

Issued: July 1, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy 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

3

See A.J., Docket No. 21-0944 (issued March 23, 2022); S.S., Docket No. 20-1351 (issued February 15, 2022).

4

In light of the Board’s finding regarding the issue of whether appellant has established a diagnosed medical 

condition, the issue of whether OWCP properly denied appellant’s hearing request is moot.