United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.G., Appellant

and

DEPARTMENT OF HOMELAND SECURITY,

U.S. CUSTOMS & BORDER PROTECTION,

Norfolk, VA, Employer

__________________________________________

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Docket No. 21-1350

Issued: April 20, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 13, 2021 appellant filed a timely appeal from an August 31, 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.2

ISSUE

The issue is whether appellant has met his 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 August31, 2021 decision, OWCP received additional evidence. 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 March 17, 2021 appellant, then a 37-year-old deployment officer, filed a traumatic 

injury claim (Form CA-1) alleging that he contracted COVID-19 on January 14, 2021 while in the 

performance of duty. On the reverse side of the claim form, C.P., a supervisor with the employing 

establishment, contended that appellant’s alleged injury did not occur in the performance of duty. 

Appellantstopped work on January 17, 2021.

On January 19, 2021 Dr. Tamara Mamedova, a Board-certified emergency medicine 

specialist, noted that appellant was experiencing COVID-19 symptoms. 

Appellant submitted a laboratory test result, dated January 24, 2021, from Dr. Evan 

Rekant, a Board-certified emergency medicine specialist, which revealed that he tested positive 

for COVID-19. 

In a development letter dated May 11, 2021, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of factual and medical evidence needed to establish his 

claim and provided a questionnaire for his completion. OWCP afforded appellant 30 days to 

submit the necessary evidence.

In notes dated February 9, 17, and 24, 2021, Dawn Culley, a nurse practitioner, and Teresa 

Snider, a licensed practical nurse, noted that appellant was examined related to his COVID-19 

diagnosis.

A letter dated May 18, 2021 from T.D., a mission support specialist with the employing 

establishment, noted that appellant’s supervisor confirmed that appellant was exposed to two 

individuals who tested positive for COVID-19. 

By decision dated May 18, 2021, OWCP accepted appellant’s traumatic injury claim for 

COVID-19. In a separate decision of even date, it denied his claim for COP, finding that he did 

not report the injury on a form approved by OWCP within 30 days following the injury.

On July 19, 2021 appellant requested reconsideration of OWCP’s May 18, 2021 decision 

and submitted additional medical evidence.

OWCP received a home health certification and plan of care form dated February 9, 2021 

from Ms. Culley, which noted a diagnosis of pneumonia due to COVID-19 and evaluation for 

homecare treatment.

A March 4, 2021 follow-up note from Brittany Chambers, a nurse practitioner, noted that 

appellant was admitted to homecare following his hospitalization for COVID-19. 

On June 3, 2021 Tyler Volpe, a physician assistant, noted that appellant was held off work 

from January through March, 2021 while he was hospitalized for COVID-19.

In support of his request for reconsideration, appellant submitted a statement dated July 14, 

2021, wherein he related that on January 15, 2021 he was assigned to security detail for the 

Presidential Inauguration in Washington, D.C. He further recountedthat his COVID-19 symptoms 

began on January 14, 2021 and that he was hospitalized through February 7, 2021. Appellant 
3

explained that he was unable to file the Form CA-1 within the 30-day timeframe because he was 

unaware that he could receive COP for his injury at the time. OWCP received a letter of even date 

from S.N., a commander with the employing establishment, who confirmed that appellant’s 

deployment unit was selected to travel to Washington, DC.

By decision dated August 31, 2021, OWCP denied modification of its May 18, 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.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

ANALYSIS

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

COP.

Appellant filed a claim for traumatic injury on a Form CA-1 dated March 17, 2021. By 

decision dated May 18, 2021, OWCP denied his request for COP, as his claim was not filed within 

30 days of the accepted January 14, 2021 employment injury. It noted that the denial of COP did 

not preclude appellant from filing a claim for disability due to the effects of COVID-19, which it 

accepted as employment related. Appellant contends that he delayed in filing his claim for COP 

because he was unaware that he could receive COP for his injury. The Board however finds that 

as appellant filed a Form CA-1 on March 17, 2021, he did not file within 30 days of the accepted 

January 14, 2021 employment injury.7 Accordingly, appellant is not entitled to COP.

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); WilliamE. Ostertag, 33 ECAB 

1925 (1982).

7

See supra notes 5-6.
4

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 his burden of proof to establish entitlement to 

COP.

ORDER

IT IS HEREBY ORDERED THAT the August 31, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 20, 2022

Washington, D.C.

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