United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, Newark, NJ, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 21-1352

Issued: September 11, 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 13, 2021 appellant filed a timely appeal from an August 31, 2021 merit 

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

Boards assigned the appeal Docket No. 21-1352.

On July 20, 2020 appellant, then a 67-year-old general attorney, filed a traumatic injury 

claim (Form CA-1) alleging that on March 12, 2020 he contracted COVID-19 while in the 

performance of duty. He stopped work on March 17, 2020. 

By decision dated January 19, 2021, OWCP accepted the claim for COVID-19. It paid 

appellant wage-loss compensation on the supplemental rolls commencing January 17, 2021.

By separate decision also dated January 19, 2021, OWCP denied appellant’s claim for 

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

the accepted March 12, 2020 employment injury. 

On February 9, 2021 appellant, through his then-counsel, requested an oral hearing before 

a representative of OWCP’s Branch of Hearings and Review regarding the January 19, 2021 

decision denying COP.
2

OWCP subsequently expanded its acceptance of the claim to include acute respiratory 

failure with hypoxia due to COVID-19, dyspnea due to COVID-19, vocal cord dysfunction due to 

COVID-19, pneumonia due to COVID-19, and shortness of breath due to COVID-19. 

By decision dated July 12, 2021, OWCP’s hearing representative affirmed the January 19, 

2021 decision.

On July 26, 2021 appellant requested reconsideration.

By decision dated August 31, 2021, OWCP denied modification.

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.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

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, 763-64 (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 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 (issuedMarch31, 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

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,

IT IS HEREBY ORDERED THAT the August 31, 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: September 11, 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

6

See Order Remanding Case, D.P., Docket No. 23-0224 (issued July 19, 2023); Order Remanding Case, P.A., 

Docket No. 23-0165 (issued June 14, 2023); Order Remanding Case, L.J., Docket No. 22-1041 (issued 

December 30, 2022); Order Remanding Case, K.C., Docket No. 22-1066 (issued December 23, 2022).