United States Department of Labor

Employees’ Compensation Appeals Board

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S.S., Appellant

and

DEPARTMENT OF THE ARMY, U.S. ARMY 

MEDICAL DEPARTMENT ACTIVITY, 

LEONARD WOOD MEDICAL HOME, 

FORT LEONARD WOOD, MO, Employer

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Docket No. 22-0516

Issued: March 1, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

On February 18, 2022 appellant filed a timely appeal from a February 7, 2022 merit 

decision of the Office of Workers’Compensation Programs (OWCP).1 The Clerk of the Appellate 

Boards assigned Docket No. 22-0516.

On February 1, 2022 appellant, then a 51-year-old practical nurse, filed a traumatic injury 

claim (Form CA-1) alleging that on November 22, 2021 she contracted COVID-19 after she was 

exposed to coworkers and patients who were diagnosed with COVID-19 while in the performance 

of duty. She related that she tested positive on November 24, 2021. On the reverse side of the 

claim form, K.F., an employing establishment supervisor, confirmed that appellant’s injury 

occurred while in the performance of duty. Appellant stopped work on November 25, 2021 and 

returned to work on December 6, 2021.

1 The Board notes that following the February7, 2022 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

In support of her claim, appellant submitted a positive November 24, 2021 COVID-19 

antigen test result. 

By decision dated February 7, 2022, OWCP denied appellant’s claim for continuation of 

pay (COP), finding that she had not reported the November 22, 2021 employment injury on an

OWCP approved form within 30 days following the injury. It indicated that the denial of COP did 

not affect her entitlement to other compensation benefits.

The Board, having duly considered the 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.2 This latter section provides that written notice of injury shall be given within 30 days. 3 

The context of section 8122 makes clear that this means within 30 days of the injury. 4

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.5

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.”

6

 

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 

2

Id. at § 8118(a).

3

Id. at § 8122(a)(2).

4 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).

5

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).

6 FECA Bulletin No. 21-09.II.2 (issued April29, 2021). On March 11, 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.
3

for COP.7 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 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: March 1, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

7

See Order Remanding Case, K.C.,Docket No. 22-1066 (issued December 23, 2022); Order Remanding Case, 

T.S., Docket No. 22-0830 (issued December 19, 2022); Order Remanding Case, G.C.,Docket No. 21-1016 (issued 

September 27, 2022).