United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

MILWAUKEE VA MEDICAL CENTER,

Milwaukee, WI, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

)

Docket No. 22-0593

Issued: September 29, 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 2, 2022 appellant filed a timely appeal from a February 22, 2022 merit decision of 

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

assigned Docket No. 22-0593.

On February 15, 2022 appellant, then a 27-year-old nurse, filed a traumatic injury claim (Form 

CA-1) alleging that he contracted COVID-19 on January 2, 2022 while in the performance of duty. 

He noted that his official duties require him to be in physical contact with patients and coworkers and 

that, as a result, he began to develop COVID-19 symptoms at work on January 5, 2022. On the 

reverse side of the claim form the employing establishment asserted that appellant was not in the 

performance of duty when he contracted COVID-19. Appellant stopped work on January 5, 2022

and returned to work on January 14, 2022.

In support of his claim, appellant submitted a polymerase chain reaction (PCR) test result 

dated January 10, 2022, which revealed that he tested positive for COVID-19.

In a letter of controversion dated February 17, 2022, the employing establishment 

controverted appellant’s claim, contending that he did not file a claim within 30 days of the alleged 

employment incident.
2

By decision dated February 22, 2022, OWCP denied appellant’s claim for COP, finding that 

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

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 CFR 10.5(ee)), and considers the date of last exposure prior to the medical ev idence 

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 

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 April29, 2021). On March11, 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 (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.
3

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

issue a de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the February 22, 2022 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: September 29, 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

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).