United States Department of Labor

Employees’ Compensation Appeals Board

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A.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION,

DULLES INTERNATIONAL AIRPORT,

Dulles, VA, Employer

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Docket No. 23-0171

Issued: June 16, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 14, 2022 appellant filed a timely appeal from a September 19, 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.

ISSUE

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

continuation of pay (COP).

FACTUAL HISTORY

On September 14, 2022 appellant, then a 40-year-old border patrol agent, filed a traumatic 

injury claim (Form CA-1) alleging that he contracted COVID-19 on June 19, 2022 while in the 

1

5 U.S.C. § 8101 et seq.
2

performance of duty. He noted that he started feeling sick with coughing and a runny nose. 

Appellant stopped work on June 19, 2022 and returned to work on June 27, 2022. On the reverse 

side of the form, appellant’s immediate supervisor noted, “[i]njured worked [sic] can[no]t be 

compensated COP as he filed [Form CA-1] past 30 days from date of injury.”

In support of his claim, appellant submitted an antigen test, collected on June 19, 2022

which revealed that he had tested positive for COVID-19 on that date. 

By decision dated September 19, 2022, OWCP denied appellant’s claim for COP, finding 

that he had not reported his injury on an OWCP-approved form within 30 days of the June 19, 

2022 employment injury. It further noted that the decision affected only his entitlement to COP 

and did not affect his 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 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.2 This latter section provides that written notice of injury shall be given within 30 days. 3 

The context of section 8122 makes clear that this means within 30 days of the injury. 4 

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.5

FECA Bulletin No. 21-09 at subsection II.2., 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 

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.”

6

2

Id. at § 8118(a).

3

Id. at § 8118(a)(2).

4 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). 

5

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).

6 FECA Bulletin No. 21-09.II.2. (issued April29, 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.
3

ANALYSIS 

The Board finds that appellant has not met his burden of proof to establish entitlement to

COP.

The record reflects that appellant filed written notice of his traumatic injury on a Form

CA-1 on September 14, 2022, alleging that on June 19, 2022 he was exposed to COVID-19 while 

in the performance of duty. He stopped work on June 19, 2022. 

As previously noted, FECA Bulletin No. 21-09 defines date of injury as the date of last 

exposure, which in this case was June 19, 2022.

7

 As appellant did not submit written notice of 

injury on an approved form until September 14, 2022, more than 30 days after the June 19, 2022 

date of injury, the Board finds that he is not entitled to COP.

8

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 his burden of proof to establish entitlement to

COP.

7

Id.

8

See A.G., Docket No. 20-0942 (issued February 14, 2022).
4

ORDER

IT IS HEREBY ORDERED THAT the September 19, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 16, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board