United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

ERIE VA MEDICAL CENTER, Erie, PA, 

Employer

__________________________________________

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Docket No. 22-0746

Issued: March 3, 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 April 4, 2022 appellant filed a timely appeal from a January 26, 2022 merit decision 

and a March 23, 2022 nonmerit 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

1

5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal and following OWCP’s March 23, 2022

decision. However, the Board’s Rules of Procedureprovides: “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

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish entitlement 

to continuation of pay (COP); and (2) whether OWCP properly denied appellant’s request for 

reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On January 14, 2022 appellant, then a 25-year-old dental assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on December 14, 2021 she contracted COVID-19 while in the 

performance of duty. She explained that she began to feel unwell that evening after work and had

a headache and body aches. The next morning, appellant took an at-home test, which came back 

positive, and then came into the employing establishment the following day to take “an actual 

test,” which was also positive. On the reverse side of the claim form, appellant’s supervisor, F.M., 

acknowledged that appellant was injured in the performance of duty. Appellant stopped work on 

December 14, 2021 and returned to work on December 27, 2021. 

Appellant submitted a laboratory test result, collected on December 16, 2021 which 

revealed that she tested positive for COVID-19. 

By decision dated January 26, 2022, OWCP denied appellant’s claim for COP, finding that 

she had not reported her injury on an OWCP-approved form within 30 days of the accepted 

employment injury. It noted that the denial of COP did not affect her entitlement to other 

compensation benefits.

Thereafter, OWCP received appellant’s timesheet for the pay period December 5 

through18, 2021, showing that she worked eight hours on December 14, 2021 and then took leave 

without pay (LWOP) from December 15 through 17, 2021.

In a February 14, 2022 statement, appellant’s supervisor, F.M., noted that appellant was 

working in the clinic for the entire workday on December 14, 2022 and that she was first absent 

due to COVID-19 on December 15, 2022.

On March 3, 2022 appellant requested reconsideration.

By decision dated March 23, 2022, OWCP denied appellant’s request for reconsideration 

of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).

LEGAL PRECEDENT -- ISSUE 1

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 
3

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 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 -- ISSUE 1

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 14 2022 alleging that on December 14, 2021 she was exposed to COVID19 while in the performance of duty. She stopped work on December 14, 2021. As previously 

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

case was December 14, 2021.8 As appellant filed her Form CA-1 on January 26, 2022 more than 

30 days after the December 14, 2022 date of injury, the Board finds that she has not met her burden 

of proof. She 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.

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).

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

LEGAL PRECEDENT -- ISSUE 2

Section 8128(a) of FECA9 vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against compensation at any time on his own motion or on application. 10

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted 

a specific point of law; (2) advances a relevant legal argument not previously considered by 

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.11

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.12 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.13 If the request is timely, but fails to meet at least one of the 

requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.14

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of her claim, pursuant to 5 U.S.C. § 8128(a).

In her reconsideration request, appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law and did not advance a new and relevant legal argument not 

previously considered. Consequently, she was not entitled to a review of the merits based on the 

first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).15

9

5 U.S.C. § 8128(a).

10 Id.; see A.N., Docket No. 20-1487 (issued March 19, 2021); L.D., Docket No. 18-1468 (issued February 11, 

2019);see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 

2010); W.C., 59 ECAB 372 (2008).

11 20 C.F.R. § 10.606(b)(3); see L.D.,id.;see also L.G., Docket No. 09-1517 (issued March 3, 2010);C.N., Docket 

No. 08-1569 (issued December 9, 2008).

12 Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP 

within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 --Claims, 

Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the 

request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation 

System (iFECS). Id. at Chapter 2.1602.4b.

13 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

14 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

15 Id. at. § 10.606(b)(3); see L.D.,supra note 10;see also L.G.,supra note 11;C.N.,supranote 11.
5

The Board further finds that appellant did not submit relevant and pertinent new evidence 

not previously considered by OWCP. With her reconsideration request, appellant submitted her 

timesheet for the pay period December 5 through 18, 2021, showing that she worked a full 

workday on December 14, 2021 and then took LWOP for several days. A February 14, 2022 

statement from appellant’s supervisor, F.M., noted the same. The Board notes that this evidence 

merely confirms that appellant’s last possible date of last exposure to COVID-19 at work was 

December 14, 2021, as already indicated on herJanuary 14, 2022 Form CA-1. The Board has held 

that the submission of evidence or argument, which does not address the particular issue involved 

does not constitute a basis for reopening a case.16 Thus, appellant is not entitled to a review based

on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).17

Accordingly, the Board finds that appellant has not met any of the requirements 

enumerated under 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly 

denied her request for reconsideration without reopening the case for review on the merits. 18

CONCLUSION

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

COP. The Board further finds that OWCP properly denied her request for reconsideration of the 

merits of her claim, pursuant to 5 U.S.C. § 8128(a).

16 L.W., Docket No. 22-0546 (issued January 20, 2023); G.K.,Docket No. 20-1026 (issued December 11, 2020);

M.K.,Docket No. 18-1623 (issued April10, 2019);Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

17 20 C.F.R. § 10.606(b)(3); see L.D., supra note 10;K.F., Docket No. 19-1846 (issued November 3, 2020); T.H., 

Docket No. 18-1809 (issued May 23, 2019); Johnny L. Wilson, Docket No. 98-2536 (issued February 13, 2001);see 

also L.G.,supra note 11; C.N.,supra note 11.

18 See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 

58 ECAB 694 (2007); SusanA. Filkins, 57 ECAB 630 (2006).
6

ORDER

IT IS HEREBY ORDERED THAT the January 26 and March 23, 2022 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: March 3, 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