United States Department of Labor

Employees’ Compensation Appeals Board

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M.S., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

Edinburg, TX, Employer

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Docket No. 21-1108

Issued: June 8, 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 July 12, 2021 appellant filed a timely appeal from a June 2, 2021 merit decision and a 

June 30, 2021 nonmerit decision of the Office of Workers’Compensation Programs (OWCP). The 

Clerk of the Appellate Boards assigned Docket No. 21-1108.

1

On April 12, 2021 appellant, then a 36-year-old border patrol agent, filed a traumatic injury 

claim (Form CA-1) alleging that on March 25, 2021 he was exposed to COVID-19, and on April 6, 

2021 he tested positive for COVID-19 which he contracted while in the performance of duty. He 

stopped work on April 6, 2021. On the reverse side of the claim form, an employing establishment 

supervisor acknowledged that appellant was injured in the performance of duty. 

Accompanying the claim form was an April 6, 2021 photograph showing the positive 

results of two COVID-19 home tests.

1 OWCP received additional evidence following the June 30, 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

On April 26, 2021 OWCP received a copy of a positive COVID-19 antibody test result for 

appellant, prepared by Dr. Kyle Eskue, a Board-certified pathologist. It noted that the specimen 

was collected on April 20, 2021; received on April 21, 2021; and reported on April 26, 2021.

By decision dated June 2, 2021, OWCP denied appellant’s traumatic injury claim, finding 

that the medical evidence of record was insufficient to establish a COVID-19 diagnosis. It

concluded, therefore, that the requirements had not been met to establish an injury as defined by 

the Federal Employees’ Compensation Act (FECA).

2

On June 28, 2021 appellant requested reconsideration. OWCP received copies of the 

previously-submitted COVID-19 home tests and antibody test results.

By decision dated June 30, 2021, OWCP denied appellant’s request for reconsideration of 

the merits of his claim, pursuant to 5 U.S.C. § 8128(a). 

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

decision. 

An employee seeking benefits under FECA3 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,4that 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.5 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. 6

Under section 4016 of the American Rescue Plan Act (ARPA) of 20217 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 

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

to a risk of exposure to COVID-19.8

2

5 U.S.C § 8101 et seq. 

3

Id.

4 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).

5 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).

6 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).

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

8 ARPA, id.; FECA Bulletin No. 21-09 (issued April 28, 2021).
3

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.9 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. 10

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-19.11 Following this and 

other such further development as deemed necessary, OWCP shall issue a de novo decision.12 

Accordingly,

9

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

10 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. 

11 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).

12 In light of the Board’s disposition regarding the merit issue, the nonmerit issue is rendered moot.
4

IT IS HEREBY ORDERED THAT the June 2, 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. The June 30, 2021 decision of the Office of Workers’ Compensation 

Programs is set aside as moot.

Issued: June 8, 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