United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.I., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS,

MIAMI VA MEDICAL CENTER, Miami, FL, 

Employer

__________________________________________

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Docket No. 21-0890

Issued: August 18, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 3, 2021 appellant filed a timely appeal from an April 29, 2021 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 her burden of proof to establish entitlement to 

continuation of pay (COP). 

FACTUAL HISTORY

On January 6, 2021 appellant, then a 55-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on July 13, 2020 she was working in the ear, nose, and throat (ENT)

clinic and contracted COVID-19 when she was exposed to a co-worker who tested positive for 

COVID-19. She related that she had been hospitalized from July 22 through 24, 2020 for 

1

5 U.S.C. § 8101 et seq.
2

treatment. Appellant stopped work on July 13, 2020 and returned on August 18, 2020. On the 

reverse side of the claim form, appellant’s supervisor indicated that her injury was caused by her 

willful misconduct of failing to follow instructions and not wearing a mask while eating, and not 

social distancing from other employees. 

OWCP received a COVID-19 high-risk determination for the position of nurse within the 

employing establishment for the period February 1, 2020 through January 21, 2021. 

In a development letter dated January 12, 2021, OWCP informed appellant that the 

evidence of record was insufficient to establish her claim. It advised her that her job had been 

designated as high risk and, therefore, to accept her claim she should submit a copy of the 

laboratory test indicating that she had COVID-19. In a separate development letter of even date, 

OWCP requested that the employing establishment provide additional information regarding the 

controversion of appellant’s claim. It afforded both parties 30 days to submit the necessary 

evidence.

In support of her claim, appellant submitted a positive laboratory test result, dated July 23, 

2020, which confirmed that she contracted COVID-19. 

Appellant subsequently submitted a statement dated January 19, 2021. She attested that 

her job required close proximity with patients in a high-risk area and that she contracted COVID19 while at work. She contended that her supervisor’s assertion that she contracted COVID-19 

due to her interaction with a co-worker was an unfounded assertion. 

By letter dated January 25, 2021, the employing establishment controverted appellant’s 

claim. 

In a development letter dated February 17, 2021, OWCP informed appellant that the 

evidence of record was insufficient to establish her claim. It provided appellant 30 days to submit 

the necessary evidence. 

Appellant subsequently submitted a medical report dated July 21, 2020 from Dr. Guillermo 

Santos, an osteopathic physician specializing in family medicine. Dr. Santos related that appellant 

had contact with a laboratory-confirmed COVID-19 patient and her symptoms included a fever 

and acute respiratory illness, which began a week ago.

OWCP received an x-ray report dated July 23, 2020 from Dr. John Didovic a Boardcertified diagnostic radiology specialist, which diagnosed COVID-19 and pneumonia. 

In a medical report dated July 30, 2020, Dr. Santos diagnosed COVID-19 and indicated

that her x-ray revealed that she also had pneumonia. 

On March 11, 2021 appellant submitted a letter wherein she reconfirmed that she worked

with patients in the ENT clinic and was frequently exposed to respiratory droplets. 

By decision dated March 19, 2021, OWCP accepted appellant’s claim for COVID-19. By 

separate decision of even date, it denied her claim for COP, finding that she had not reported her

injury on an OWCP-approved form within 30 days of the accepted July 13, 2020 employment 

injury.
3

On March 25, 2021 appellant requested reconsideration of OWCP’s March 19, 2021 

decision. She related that she was requesting reconsideration of the denial of COP. Appellant

alleged that her supervisor had been notified of her COVID-19 diagnosis on the day of injury, and 

that she had been unable to submit a form approved by OWCP within 30 days because she was 

hospitalized and unable to return to work for five weeks after the date of injury. 

By decision dated April 29, 2021, OWCP denied modification of its March 19, 2021 

decision. 

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.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 a 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, 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 [d]ate of [i]njury since the precise time of transmission 

may not always be known due to the nature of the virus.”

6

ANALYSIS

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

COP.

2

Id. at § 8118(a).

3

Id. at § 8122(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, 763-64 (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.
4

Appellant filed written notice of her traumatic injury on a Form CA-1 on January 6, 2021,

alleging that on July 13, 2020, she contracted COVID-19 while in the performance of duty. She 

stopped work on July 13, 2020, and returned on August 18, 2020. As previously noted, FECA 

Bulletin No. 21-09 defines date of injury as the date of last exposure, which in this case was 

July 13, 2020.7 As appellant filed her Form CA-1 on January 6, 2021, more than 30 days after the 

July 13, 2020 date of injury, the Board finds that she 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.

ORDER

IT IS HEREBY ORDERED THAT the April 29, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: August 18, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

7

Id.