United States Department of Labor

Employees’ Compensation Appeals Board

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M.V., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Flushing, NY, Employer

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Docket No. 22-0515

Issued: September 30, 2022

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

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). The Clerk of the Appellate 

Boards assigned Docket No. 22-0515.

On January 25, 2022 appellant, then a 44-year-old air traffic controller, filed a traumatic 

injury claim (Form CA-1) alleging that on December 23, 2021 he had close contact with a COVID19 positive coworker while in the performance of duty. He advised that he then tested positive for 

COVID-19. On the reverse side of the claim form, the employing establishment indicated that 

appellant had stopped work at 8:00 a.m. on December 25, 2021 and that his duty hours were 8:35 

a.m. until 4:35 p.m.

A polymerase chain reaction (PCR) test performed on January 21, 2022 was positive for 

COVID-19. 

On February 4, 2022 the employing establishment controverted appellant’s request for 

COP as he had not filed his claim within 30 days of the date of injury. 

By decision dated February 7, 2022, OWCP found that appellant was not entitled to COP 

as he had not reported his injury on an OWCP-approved form within 30 days of the date of injury, 

December 23, 2021.
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

Id. at § 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 April 29, 2021). On March 11, 2021 the American Rescue Plan Act 

(ARPA) of 2021 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(released March31, 

2020) and FECA Bulletin No. 21-01 (released 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) (The Board found that 

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 February 7, 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: September 30, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board