United States Department of Labor

Employees’ Compensation Appeals Board

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B.J., Appellant

and

U.S. POSTAL SERVICE, CORNELL STATION, 

Bronx, NY, Employer

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Docket No. 23-0507

Issued: August 17, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 28, 2023 appellant filed a timely appeal from a February 6, 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 February 6, 2023 merit decision, OWCP received additional evidence, 

including a handwritten Form CA-1. 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 30, 2023 appellant, then a 61-year-old lead clerk, filed a traumatic injury 

claim (Form CA-1) alleging that on that day she contracted COVID-19 while in the performance 

of duty. On the reverse side of the claim form, the employing establishment controverted the 

claim, contending that appellant did not contract COVID-19 at work rather, she was at home 

when she contracted the condition. Appellant stopped work on December 28, 2022 and returned 

on January 9, 2023.

By decision dated February 6, 2023, OWCP denied appellant’s claim for COP, finding 

that she had not reported the alleged December 28, 2022 injury on an OWCP-approved form 

within 30 days of the date of the injury. It further noted that the decision affected only her 

entitlement to COP and 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 C.F.R. § 10.5(ee)), and considers the date of last exposure prior to the 

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

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.

Appellant filed her Form CA-1 on January 30, 2023. She stopped work on 

December 28, 2022. As previously noted, FECA Bulletin No. 21-09 defines date of injury as the 

date of last exposure, which in this case was December 28, 2022.8

Because appellant filed her Form CA-1 on January 30, 2023, the Board finds that it was 

not filed within 30 days of the alleged December 28, 2022 employment injury, as specified in 

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

9

On appeal appellant contends that she returned to work on January 9, 2023 and 

completed and submitted all the necessary paperwork for her claim. She further contended, 

however, that she had to resubmit the paperwork because employing establishment management 

misplaced the paperwork and acknowledged its error. The Board is precluded from reviewing 

evidence which was not of record as of the date of OWCP’s final decision.10

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 

(ARPA) of 2021 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.

9

See L.J., Docket No. 22-1187 (issued January 4, 2023); H.J., Docket No. 22-0772 (issued August 25, 2022); 

J.T., Docket No. 22-0588 (issued July 20, 2022).

10 20 C.F.R. § 501.2(c)(1). 
4

ORDER

IT IS HEREBY ORDERED THAT the February 6, 2023 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 17, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board