United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

Charleston, SC, Employer

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Docket No. 21-1162

Issued: June 6, 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

JURISDICTION

On July 27, 2021 appellant filed a timely appeal from a June 4, 2021 merit decision of the 

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

assigned Docket No. 21-1162.

On March 10, 2021 appellant, then a 40-year-old customs and border patrol agent, filed a 

traumatic injury claim (Form CA-1) alleging that he was exposed to the COVID-19 virus while in 

the performance of duty. He explained that he experienced a continuous headache starting on 

January 30, 2021 and ran a low-grade fever on February 2, 2021. On February 3, 2021 appellant

tested positive for COVID-19, and was told to quarantine by upper management. On the reverse 

side of the claim form, an employing establishment supervisor acknowledged that appellant was 

injured in the performance of duty. Appellant stopped work on February 3, 2021 and returned on 

February 16, 2021.

Accompanying the claim, appellant submitted a February 2, 2021 treatment note from a

nurse practitioner who indicated that appellant “was swabbed for COVID-19 by rapid antigen 

testing, and the testing returned a POSITIVE result.”
2

In a March 9, 20211report, Dr. Cheryl Lynch, a pharmacist, noted that appellant was given 

a COVID-19 antibody test on March 9, 2021 with positive results.

OWCP received a copy of the February 2, 2021 report from the nurse practitioner and the

March 9, 2021 report from pharmacist, Dr. Lynch.

On May 14, 2021 OWCP received a copy of a February 3, 2021 in-house laboratory report

for an antigen test for appellant, which revealed a positive result.

By decision dated June 4, 2021, OWCP denied appellant’s traumatic injury claim. It found 

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

concluded, therefore, that the requirements had not been met 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 FECA3 has the burden of proof to establish the 

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

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

limitation of FECA,4that an injury was sustained in the performance of duty as alleged, and that 

any disability or medical 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 upon 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 

1 The report is dated March 3, 2019, however, this is a typographical error.

2

5 U.S.C. § 8101 et seq.

3

Id.

4

See D.B., Docket No. 20-0797 (issued August 5, 2021); F.H., Docket No. 18-0869 (issued January 29, 2020); 

J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D. Cameron, 41 ECAB 153 (1989).

5 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E. Chadden, Sr., 40 ECAB 312 (1988).

6 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

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

7 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-19.8

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. 

Accordingly,

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

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).
4

IT IS HEREBY ORDERED THAT the June 4, 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 6, 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