United States Department of Labor

Employees’ Compensation Appeals Board

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J.G., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

SAN FRANCISCO VA MEDICAL CENTER, 

San Francisco, CA, Employer

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Docket No. 21-0767

Issued: April 14, 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 April 26, 2021 appellant filed a timely appeal from a March 22, 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 the case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notesthat, following the March 22, 2021decision, 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

ISSUE

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

continuation of pay (COP). 

FACTUAL HISTORY

On January 13, 2021 appellant, then a 27-year-old food service worker, filed a traumatic 

injury claim (Form CA-1) alleging that on July 10, 2020, while delivering food trays to hospital 

patients and through coworkers, she was exposed to and contracted COVID-19. She stopped work 

on July 12, 2020 and returned to work on December 15, 2020.

In support of her claim, appellant submitted laboratory test results, dated July 10 and 28, 

2020, which revealed that appellant tested positive for COVID-19.

Appellant also submitted requests for Emergency Paid Sick Leave under the Families First 

Coronavirus Response Act dated July 15 and August 10, 2020.

In a development letter dated January 20, 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.

In a letter dated March 16, 2021, OWCP informed appellant that her claim would be 

reviewed under the provisions of the newly enacted American Rescue Plan Act of 2021.

By decision dated March 22, 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 within 30 days of the accepted July 10, 2020 employment 

injury. OWCP noted that the denial of COP did not preclude appellant from filing a claim for 

disability due to the effects of the accepted employment injury.

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 
3

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 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.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 January 13, 2021;

however, her injury occurred on July 10, 2020. By decision dated March 22, 2021, OWCP denied 

her request for COP, as her claim was not filed within 30 days of the accepted July 10, 2020 

employment injury. It noted that the denial of COP did not preclude appellant from filing a claim 

for disability due to the effects of the accepted employment injury. Because appellant filed written 

notice of her traumatic injury claim (Form CA-1) on January 13, 2021, the Board finds that it was 

not filed within 30 days of the accepted July 10, 2020 employment injury, as specified in sections 

8118(a) and 8122(a)(2) of FECA. Accordingly, appellant is not entitled to COP.

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. 

3

Supra note 1 at § 8118(a).

4

Id. at § 8122(a)(2).

5 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, 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).
4

ORDER

IT IS HEREBY ORDERED THAT the March 22, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 14, 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