United States Department of Labor

Employees’ Compensation Appeals Board

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A.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

BIRMINGHAM VA MEDICAL CENTER, 

Birmingham, AL, Employer

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Docket No. 22-0523

Issued: February 23, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 24, 2022 appellant filed a timely appeal from a February 14, 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.

2

ISSUE

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

continuation of pay (COP).

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional argument 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

FACTUAL HISTORY

On February 7, 2022 appellant, then a 42-year-old practical nurse, filed a traumatic injury 

claim (Form CA-1) alleging that she contracted COVID-19 on January 4, 2022 while in the 

performance of duty. She noted that on December 29, 2021 she had been assigned to perform 

COVID-19 testing on COVID symptomatic patients, with three out of the seven patients testing 

positive for COVID-19. Appellant stopped work on January 4, 2022 and returned to work on 

January 24, 2022. 

OWCP received a January 12, 2022 report from Dr. Stephanie M. Morgan, a physician 

specializing in family medicine, noting that appellant had been evaluated on January 12, 2022. 

Dr. Morgan released appellant to return to work on January 22, 2022. She also indicated that

appellant could return earlier if her COVID-19 test was negative and she was fever and symptom 

free for 24 hours without the use of medication.

By decision dated February 14, 2022, OWCP denied appellant’s claim for COP, finding 

that she did not report the injury on a form approved by OWCP within 30 days following the 

injury. It noted that the denial of COP did not affect her entitlement to other compensation 

benefits.

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.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

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 

3

Id. 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 762-64 (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); William E. 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.”

7

 

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 on a Form CA-1 on February 7, 2022, 

alleging that on January 4, 2022 she was exposed to COVID-19 while in the performance of duty. 

She stopped work on January 4, 2022. As previously noted, FECA Bulletin No. 21-09 defines 

date of injury as the date of last exposure, which in this case was January 4, 2022.8 As appellant 

filed her Form CA-1 on February 7, 2022, more than 30 days after the January 4, 2022 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.

7 FECA Bulletin No. 21-09.II.2 (issued April 29, 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 (issued March 31, 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.

8

Id.
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ORDER

IT IS HEREBY ORDERED THAT the February 14, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 23, 2023

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