United States Department of Labor

Employees’ Compensation Appeals Board

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S.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS,

WEST LOS ANGELES VA MEDICAL 

CENTER, Los Angeles, CA, Employer

__________________________________________

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Docket No. 23-0524

Issued: September 15, 2023

Appearances: Case Submitted on the Record

Appellant, pro se,

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 1, 2023 appellantfiled a timely appealfroma December 12,2022merit decision

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over

the merits of this case.

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1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the December 12, 2022 decision, OWCP received additional evidence. 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

ISSUE

The issue is whether appellant has met her burden of proof to establish entitlement to 

continuation of pay (COP).

FACTUAL HISTORY

On December 7, 2022 appellant, then a 31-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on May 2, 2022 she contracted COVID-19 and began feeling sick while 

in the performance of duty. She stopped work on May 2, 2022 and returned to work on 

May 9, 2022.

In support of her claim, appellant submitted a May 2, 2022 positive test result for 

COVID-19. 

By decision dated December 12, 2022, OWCP denied appellant’s claim for COP, finding 

that she had not reported her injury on an OWCP-approved form within 30 days of her alleged 

May 2, 2022 employment injury. It advised her that the COP denial did not affect her entitlement 

to other compensation benefits.

LEGAL PRECEDENT

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.3 This latter section provides that written notice of injury shall be given within 30 days. 4 

The context of section 8122 makes clear that this means within 30 days of the injury.5

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.6

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 

3

Supra note 1 at § 8118(a).

4

Id. at § 8122(a)(2).

5 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).

6

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.

09-563 (issued February 26, 2010); Dodge Osborne, 44 ECAB 849 (1993); WilliamE. Ostertag, 33 ECAB 

1925 (1982).
3

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.”

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ANALYSIS

The Board finds that appellant has not met her burden of proof to establish entitlement to 

COP.

The record reflects that appellant filed written notice of her traumatic injury on a Form 

CA-1 on December 7, 2022, alleging that on May 2, 2022 she contracted COVID-19 while in the 

performance of duty. She stopped work on May 2, 2022. As previously noted, FECA Bulletin 

No. 21-09 defines date of injury as the date of last exposure, which in this case was May 2, 2022.

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As appellant filed her Form CA-1 on December 7, 2022, more than 30 days after the May 2, 2022 

date of injury, the Board finds that she has not met her burden of proof.

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish entitlement to 

COP.

7 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.

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Id.
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ORDER

IT IS HEREBY ORDERED THAT the December 12, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 15, 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