United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.B., Appellant

and

DEPARTMENT OF DEFENSE, DEPARTMENT 

OF DEFENSE EDUCATION ACTIVITY, 

Alexandria, VA, Employer,

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 23-0124

Issued: January 25, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

On November 4, 2022 appellant filed a timely appeal from an October 24, 2022 merit 

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

Boards assigned Docket No. 23-0124. 

On October 6, 2022 appellant, then a 45-year-old elementary school teacher, filed a 

traumatic injury claim (Form CA-1) alleging that on January 27, 2022 she contracted COVID-19 

when she was exposed to children for six hours in a confined space while in the performance duty. 

On the reverse side of the claim form, the employing establishment acknowledged that she was 

injured in the performance of duty, but controverted her request for continuation of pay (COP)

because notice of the injury had not been reported within 30 days, noting that the injury claim was 

not received until October 6, 2022. Appellant stopped work on January 31, 2022 and returned to 

work on February 8, 2022. 

In a memorandum dated March 24, 2022, the employing establishment indicated that

appellant tested positive for COVID-19 on January 28, 2022. 

By decision dated October 24, 2022, OWCPdenied appellant’s claim for COP, finding that 

she had failed to report the January 27, 2022 employment injury on a form approved by OWCP 
2

within 30 days, as required. It advised her that the denial of COP did not affect her entitlement to 

compensation. 

The Board, having duly considered the matter, concludes 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 her claim for 

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 762-64 (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 March11, 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.
3

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 October 24, 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: January 25, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

6

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

T.S., Docket No. 22-0830 (issued December 19, 2022); Order Remanding Case, G.C., Docket No. 21-1016 (issued 

September 27, 2022).