United States Department of Labor

Employees’ Compensation Appeals Board

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R.Z., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PATROL, NEW 

YORK FIELD OFFICE, New York, NY, 

Employer

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Docket No. 21-1347

Issued: June 9, 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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On September 10, 2021 appellant filed a timely appeal from a June 15, 2021 merit decision 

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

assigned Docket No. 21-1347.

1

On November 22, 2020 appellant, then a 34-year-old customs special response team 

operator, filed a traumatic injury claim (Form CA-1) alleging that he contracted COVID-19 in the 

performance of duty on November 17, 2020, when he tested positive for the virus. He asserted 

that during the week prior to November 17, 2020, he executed arrest warrants at multiple dwellings 

with individuals who were not wearing masks, provided firearms training to task force officers, 

and conducted his regular duties that required interaction with the public, coworkers, and 

prisoners. Appellant stopped work on November 19, 2020.

1 The Board notes that OWCP received additional evidence following the June 15, 2021 decision. 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 appellant’s claim, the employing establishment provided a June 1, 2020 letter 

confirming that appellant’s duties placed him at high risk for COVID-19 exposure, including direct 

interaction with members of the public in close proximity for more than eight hours per day.

Appellant submitted a November 18, 2020 report by Luigi Tirro, a physician assistant, 

noting that appellant was found to be symptomatic and had tested positive for COVID-19. He had 

been advised to self-isolate at home. Appellant also submitted copies of the June 1, 2020 

employing establishment letter and the report by Mr. Tirro already of record. OWCP also received

a February 5, 2021 laboratory report of a February 3, 2021 COVID-19 antibody test, which was 

positive.

By decision dated June 15, 2021, OWCP denied appellant’s claim, finding that he had not 

submitted contemporaneous medical evidence from a qualified physician to accompany the 

positive COVID-19 antibody test. Consequently, it found that he had not met the requirements to 

establish an injury as defined by the Federal Employees’ Compensation Act (FECA).

2

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

decision. 

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was filed within the applicable time 

limitation of FECA,3that an injury was sustained while in the performance of duty as alleged; and 

that any disability or specific condition for which compensation is claimed is causally related to 

the employment injury.4 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 5

Under section 4016 of the American Rescue Plan Act (ARPA) of 20216 any claim made 

for COVID-19 by or on behalf of a “covered employee” for benefits under FECA will be deemed 

to have an injury proximately caused by exposure to COVID-19 arising out of the nature of the 

covered employee’s employment. A “covered employee” is defined by ARPA as an employee 

under 5 U.S.C. § 8101(a) and employed in the federal service at any time during the period 

beginning on January 27, 2020 and ending on January 27, 2023. A “covered employee” prior to a 

diagnosis of COVID-19 must have carried out duties that required a physical interaction with at 

2

5 U.S.C. § 8101 et seq.

3 C.B., Docket No. 21-1291 (issued April28, 2022); S.C., Docket No. 18-1242 (issued March 13, 2019); J.P., 59 

ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

4 L.C., Docket No. 19-1301 (issued January 29, 2020); T.H., Docket No. 18-1736 (issued March 13, 2019); R.C., 

59 ECAB 427 (2008).

5 P.A., Docket No. 18-0559 (issued January 29, 2020); T.E., Docket No. 18-1595 (issued March 13, 2019); 

Delores C. Ellyett, 41 ECAB 992 (1990).

6 Public Law 117-2 (March 11, 2021).
3

least one other person (a patient, member of the public, or a coworker); or was otherwise subject 

to a risk of exposure to COVID-19.7

Exposure to COVID-19 alone is not sufficient to establish a work-related medical 

condition. Manifestation of COVID-19 must occur within 21 days of the covered exposure.8 To 

establish a diagnosis of COVID-19, a claimant must submit the following: (1) a positive 

Polymerase Chain Reaction (PCR) or Antigen COVID-19 test result; or (2) a positive Antibody 

test result, together with contemporaneous medical evidence that the claimant had documented 

symptoms of and/or was treated for COVID-19 by a physician (a notice to quarantine is not 

sufficient if there was no evidence of illness); or (3) if no positive laboratory test is available, a 

COVID-19 diagnosis from a physician together with rationalized medical opinion supporting the 

diagnosis and an explanation as to why a positive test result is not available. Self-administered 

COVID-19 testing is insufficient to establish a diagnosis of COVID-19 under FECA unless the 

administration of the self-test is monitored by a medical professional and the results are verified 

through documentation submitted by such professional. 9

Paragraph 2 of FECA Bulletin No. 21-10 provides, inter alia, “The FECA program will 

review all COVID-19 claims previously denied in accordance with the guidance provided in FECA 

Bulletin 21-09 based on the submission of an antigen test without contemporaneous medical to 

determine if the claim can now be accepted. This will occur without a request from the claimant. 

If the FECA program determines that the case can now be accepted under the ARPA, the case will 

be reopened under the Director’s own motion under Section 8128(a) of the FECA, and the case 

will be accepted. If this occurs, the claimant and employing agency will be notified. ”

In light of the above-noted amendments, OWCP did not take into consideration all of the 

applicable criteria for establishing a diagnosis of COVID-19 when it denied appellant’s claim. 

This case shall therefore be remanded for consideration and application of FECA Bulletin Nos. 

21-09, 21-10, and 22-06 with regard to appellant’s claim for COVID-19.10 Following this and 

other such further development as deemed necessary, OWCP shall issue a de novo decision. 

Accordingly,

7 ARPA, id.; FECA Bulletin No. 21-09 (issued April 28, 2021).

8 FECA Bulletin No. 21-09 (issued April 28, 2021).

9 FECA Bulletin Nos. 21-09 (issued April 28, 2021), 21-10 (issued August 17, 2021), and 22-06 (issued 

February16, 2022). FECA Bulletin No. 21-10 amended FECA Bulletin No. 21-09 in part to allow for a positive 

Antigen COVID-19 test result. FECA Bulletin No. 22-06 amended FECA Bulletin Nos. 21-09 and 21-10 to update 

COVID-19 claims processing guidelines relating to reinfection and home tests. 

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

Case, G.C.,Docket No. 21-1016 (issued September 27, 2022) (the Board remanded these cases for proper application 

of FECA Bulletin No. 21-09).
4

IT IS HEREBY ORDERED THAT the June 15, 2021 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: June 9, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board