United States Department of Labor

Employees’ Compensation Appeals Board

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E.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

NORTHERN CALIFORNIA HEALTH CARE 

SYSTEM, Martinez, CA, Employer

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Docket No. 22-1309

Issued: December 30, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. MCGINLEY, Alternate Judge

JURISDICTION

On September 7, 2022 appellant filed a timely appeal from an August 24, 2022 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

1

5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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

ISSUE

The issue is whether appellant has met her burden of proof to establish entitlement to 

continuation of pay (COP).

FACTUAL HISTORY

On August 18, 2022 appellant, then a 59-year-old pharmacist, filed a traumatic injury claim 

(Form CA-1) alleging that on May 26, 2022 she experienced COVID symptoms. She related that 

she tested with a binary test on May 28, 2022, as well as with PCR tests on June 1 and 3, 2022, all 

of which came back positive for COVID-19. Appellant stopped work on May 26, 2022 and 

returned on June 6, 2022. On the reverse side of the claim form, appellant’s supervisor 

acknowledged that he was injured in the performance of duty.

By decision dated August 24, 2022, OWCP denied appellant’s claim for COP, finding that 

she had not reported her May 26, 2022 injury on an OWCP-approved form within 30 days of the 

date of injury. It further noted that the decision concerned her entitlement to COP, that it did not 

affect her entitlement to other compensation benefits, and that she could claim compensation for 

wage loss resulting from the decision by filing a claim for compensation (Form CA-7).

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 

FECA.

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 

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, 763-64 (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

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 (Form CA-1) 

on August 18, 2022. As previously noted, FECA Bulletin No. 21-09 defines date of injury as the 

date of last exposure, which in this case was May 26, 2022.8 By decision dated August 24, 2022, 

OWCP denied appellant’s request for COP, as her claim was not filed within 30 days of the 

accepted May 26, 2022 employment injury. As appellant filed written notice of her traumatic 

injury claim on August 18, 2022, more than 30 days after the accepted May 26, 2022 employment 

injury, the Board finds that appellant has not met her burden of proof to establish entitlement to 

COP.

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 April29, 2021). On March11, 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 August 24, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 30, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board