United States Department of Labor

Employees’ Compensation Appeals Board

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D.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

DES MOINES VA MEDICAL CENTER, 

Des Moines, IA, Employer

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Docket No. 23-0224

Issued: July 19, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

On December 2, 2022 appellant filed a timely appeal from a September 19, 2022 merit 

decision and a November 17, 2022 nonmerit decision of the Office of Workers’ Compensation 

Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 23 -0224 to the 

appeal.

On September 13, 2022 appellant, then a 50-year-old pharmacist, filed a traumatic injury 

claim (Form CA-1) alleging that on July 2, 2022 he contracted COVID-19 when he was exposed 

to a coworker diagnosed with COVID-19 while in the performance of duty. On the reverse side 

of the claim form, C.F., an employing establishment supervisor, confirmed that appellant’s injury 

occurred while in the performance of duty. Appellant stopped work on July 5, 2022 and returned 

on July 15, 2022. 

By decision dated September 19, 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 the accepted employment injury. It noted that the denial of COP did not affect his

entitlement to other compensation benefits. OWCP notified appellant that he could file a claim 

for compensation (Form CA-7) for lost wages due to the alleged employment injury. 
2

In an appeal request form dated September 26, 2022 and received by OWCP on 

November 2, 2022 appellant requested a hearing before a representative of OWCP’s Branch of 

Hearings and Review. By decision dated November 17, 2022, OWCP denied his request for a 

hearing, finding that it was untimely filed. It further exercised its discretion and determined that 

the issue in the case could equally well be addressed by a request for reconsideration before 

OWCP along with the submission of new evidence. 

The Board, having duly considered this 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 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 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 remanded for application of FECA Bulletin No. 21-09 with regard to 

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); William E. 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) 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 (released March 31, 

2020) and FECA Bulletin No. 21-01 (released October 21, 2020). FECA Bulletin No. 21-09 supersedes FECA 

Bulletin Nos. 20-05 and 21-01.
3

appellant’s claim for COP.6 Following this and other such further development as deemed 

necessary, OWCP shall issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the September 19, 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.7

Issued: July 19, 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

6

See Order Remanding Case, L.J., Docket No. 22-1041 (issued December 30, 2022); see also Order Remanding 

Case, K.C., Docket No. 22-1066 (issued December 23, 2022). 

7

In light of the Board’s disposition regarding the COP issue, the issue regarding the denial of appellant’s hearing 

as untimely filed is moot.