United States Department of Labor

Employees’ Compensation Appeals Board

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E.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

NORTHERN CALIFORNIA HEALTH CARE 

SYSTEM, MARTINEZ VA MEDICAL 

CENTER, Martinez, CA, Employer

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Docket No. 22-1356

Issued: January 23, 2023

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

VALERIE D. EVANS-HARRELL, Alternate Judge

On September 22, 2022 appellant filed a timely appeal from a July 25, 2022 merit decision 

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

assigned Docket No. 22-1356.

On July 21, 2022 appellant, then a 59-year-old medical instrument technician, filed a 

traumatic injury claim (Form CA-1) alleging that on May 31, 2022 he was exposed to COVID-19 

during interactions with his coworkers and patients while in the performance of duty. On the 

reverse side of the claim form, appellant’s supervisor acknowledged that he was injured in the 

performance of duty. Appellant stopped work on June 5, 2022 and returned on June 12, 2022. 

In support of his claim, appellant submitted an antigen test result dated June 8, 2022, which 

indicated that his test was positive for COVID-19. 

By decision dated July 25, 2022, OWCP denied appellant’s claim for continuation of pay 

(COP), finding that he had not reported his injury on an OWCP-approved form within 30 days 

following the injury. It advised him that the denial of COP did not affect his entitlement to 

compensation benefits. 
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

5 U.S.C. § 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 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.

6

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

IT IS HEREBY ORDERED THAT the July 25, 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: January 23, 2023

Washington, DC

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