United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

EUGENE J. TOWBIN HEALTHCARE

CENTER, North Little Rock, AR, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 22-0628

Issued: November 1, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

On March 25, 2022 appellant filed a timely appeal from a February 7, 2022 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards 

assigned Docket No. 22-0628. 

On January 25, 2022 appellant, then a 53-year-old nurse anesthetist, filed a traumatic injury 

claim (Form CA-1) alleging that on December 23, 2021 she contracted COVID-19 due to exposure 

from patients and coworkers who were diagnosed with COVID-19 while in the performance of 

duty. She stopped work on December 27, 2021 and returned on January 10, 2022.

Appellant submitted a laboratory test result, dated December 31, 2021, which revealed that 

she tested positive for COVID-19.

By decision dated February 7, 2022, OWCP denied appellant’s claim for COP, finding that 

she had not reported the December 23, 2021 injury on an OWCP-approved form within 30 days

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

did not affect her entitlement to other benefits. OWCP notified appellant that she could claim 

compensation for wage-loss resulting from the decision by filing a claim for compensation (Form 

CA-7).
2

The Board, having duly considered this matter, finds that this case is not in posture for 

decision.

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.1 This latter section provides that written notice of injury shall be given within 30 days. 2 

The context of section 8122 makes clear that this means within 30 days of the injury. 3

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.4

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.”

5

 

In denying appellant’s claim for COP, OWCP failed to consider the date of last exposure 

as the date of injury in accordance with the guidance in FECA Bulletin No. 21-09. This case will 

therefore be remanded for application of FECA Bulletin No. 21-09 with regard to appellant’s claim 

for COP.6 Following this and other such further development as deemed necessary, OWCP shall 

issue a de novo decision. Accordingly,

1

Id. at § 8118(a).

2

Id. at § 8122(a)(2).

3 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).

4

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).

5 FECA Bulletin No. 21-09.II.2 (issued April 29, 2021). On March 11, 2021 the American Rescue Plan Act 

(ARPA) of 2021 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 (released March 31, 

2020) and FECA Bulletin No. 21-01 (released October 21, 2020). FECA Bulletin No. 21-09 supersedes FECA 

Bulletin Nos. 20-05 and 21-01.

6

See e.g., Order Remanding Case, W.G., Docket No. 18-0451 (issued February 21, 2019) (The Board found that 

OWCP failed to properly develop the medical evidence by requesting the DMA to provide an impairment rating in 

accordance with the new guidance in FECA Bulletin No. 17-06 for consistently rating upper extremity impairments. 

The Board remanded the case for further development consistent with OWCP procedures in FECA Bulletin No. 17-

06); Order Remanding Case, H.W., Docket No. 10-404 (issued September 28, 2011) (The Board remanded the case 

to OWCP for selection of another impartial medical specialist in accordance with its procedures). 
3

ORDER

IT IS HEREBY ORDERED THAT the February 7, 2022 merit decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this order of the Board.

Issued: November 1, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board