United States Department of Labor

Employees’ Compensation Appeals Board

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C.E., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS,

DALLAS VA MEDICAL CENTER, Dallas, TX, 

Employer

__________________________________________

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Docket No. 23-0493

Issued: November 15, 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 21, 2023 appellant filed a timely appeal from a January 30, 2023 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, following the January 30, 2023 decision, 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

FACTUAL HISTORY

On January 20, 2023 appellant, then a 61-year-old nurse, filed a traumatic injury claim

(Form CA-1) alleging that on December 12, 2022 she contracted COVID-19 while in the 

performance duty. She noted that while admitting a new patient on December 12, 2022, she 

learned that she had tested positive for COVID-19. On the reverse side of the claim form, the 

employing establishment controverted appellant’s request for COP because notice of the injury 

had not been reported within 30 days, noting that the injury claim was not received until 

January 20, 2023. Appellant stopped work on December 12, 2022 and returned to work on 

December 26, 2022.

In support of her claim, appellant submitted a polymerase chain reaction (PCR) test result 

dated December 12, 2022, which indicated a positive result for COVID-19.

A medical form report dated December 13, 2022, bearing an illegible signature, indicated 

that appellant should isolate and remain off from work for seven days from symptom onset and

provided instructions for retesting.

A medical form report dated December 19, 2022, also bearing an illegible signature,

indicated that appellant was evaluated for illness and should isolate and remain off from work until 

December 23, 2022.

By decision dated January 30, 2023, OWCPdenied appellant’s claim for COP, finding that 

she had failed to report the December 12, 2022 employment injury on a form approved by OWCP 

within 30 days, as required. It advised her 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 

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 762-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985).
3

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 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.”

7

ANALYSIS

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

COP.

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

Form CA-1 on January 20, 2023, alleging that on December 12, 2022 she was exposed to COVID19 while in the performance of duty. As previously noted, FECA Bulletin No. 21-09 defines date 

of injury as the date of last exposure, which in this case was December 12, 2022.

8

 As appellant 

did not file her Form CA-1 untilJanuary 20, 2023, more than 30 days after the December 12, 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. 

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).

7 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.

8

Id.
4

ORDER

IT IS HEREBY ORDERED THAT the January 30, 2023 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 15, 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