United States Department of Labor

Employees’ Compensation Appeals Board

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J.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

PALO ALTO VA MEDICAL CENTER, 

Palo Alto, CA, Employer

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Docket No. 22-1189

Issued: May 4, 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 August 11, 2022 appellant filed a timely appeal from July 18 and August 4, 2022 

merit decisions 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 July 12, 2022 appellant, then a 58-year-old licensed practical nurse, filed a traumatic 

injury claim (Form CA-1) alleging that on June 2, 2022 she contracted COVID-19 through 

1

5 U.S.C. § 8101 et seq.
2

exposure from a coworker while in the performance of duty. On the reverse side of the claim 

form, her supervisor acknowledged that she was injured in the performance of duty. Appellant 

stopped work on June 2, 2022 and returned to work on June 13, 2022.

Appellant submitted a polymerase chain reaction (PCR) test result, dated June 3, 2022, 

which revealed that she tested positive for COVID-19.

By decision dated July 18, 2022, OWCP denied appellant’s claim for COP, finding that 

she had not reported the June 2, 2022 injury on an OWCP-approved form within 30 days of the 

date of injury, as required. It further noted that the decision affected only her entitlement to COP 

and did not affect her entitlement to other compensation benefits. 

On August 1, 2022 appellant requested reconsideration. 

In a statement dated July 26, 2022, J.M., an assistant nurse manager at the employing 

establishment, indicated that appellant was out of work on June 2 and 3, 2022 and from June 6 

through 13, 2022 due to testing positive for COVID-19. She noted that on June 13, 2022 

appellant had applied for Occupational Safety Health Administration (OSHA) Form 301 due to 

COVID-19 and thought that this form also covered the Form CA-1 for COVID-19. J.M. 

requested that OWCP reconsider the decision regarding appellant’s application for COP. The 

OSHA Form 301 was attached. 

By decision dated August 4, 2022, OWCP denied modification of the July 18, 2022 

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 Form CA-1 

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 762-64 (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.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 short (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

ANALYSIS

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

COP.

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

Form CA-1 on July 12, 2022, alleging that on June 2, 2022 she contracted COVID-19 through 

exposure from a co-worker while in the performance of duty. Appellant stopped work on 

June 2, 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 2, 2022. The 30th day following June 2, 2022 was 

July 2, 2022. On reconsideration appellant’s nurse manager submitted a copy of OSHA’s Form 

301 and contended that appellant filed it on June 13, 2022 with the belief that it also covered 

COP. The Board has held, however, that an OSHA form is not considered a claim for a period of 

wage loss as required by 5 U.S.C. § 8118.7 As appellant filed her Form CA-1 on July 12, 2022,

more than 30 days after the June 2, 2022 employment 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.

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); William E. 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. 11712. 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.

7 R.D., Docket No. 23-0046 (issued March 28, 2023); R.J., Docket No. 08-2338 (issued June 9, 2009).
4

ORDER

IT IS HEREBY ORDERED THAT the July 18 and August 4, 2022 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: May 4, 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