United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Nashville, TN, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 23-0247

Issued: September 8, 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

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

On December 2, 2022 appellant filed a timely appeal from an October 24, 2022 merit

decision and a November 14, 2022 nonmerit decision of the Office of Workers’ Compensation

Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 23-0247.

1

On October 2, 2022 appellant, then a 56-year-old parcel post distribution machine operator,

filed a traumatic injury claim (Form CA-1) alleging that on August 30, 2022 she contracted

COVID-19 while in the performance of duty. She related that her work site is a hot, unsanitary

environment which lacks airflow and has newly installed Plexi-glass dividers on consoles that are 

never cleaned, which contributes to the transmission of germs. Appellant stopped work on 

August 31, 2022 and returned to work on October 1, 2022.

By decision dated October 24, 2022, OWCP denied appellant’s claim for continuation of 

pay (COP), finding that she did not report the injury on a form approved by OWCP within 30 days 

1 The Board notes that following the November 14, 2022 decision, appellant submitted additional evidence to 

OWCP. 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

following the injury. It noted that the denial of COP did not preclude her from claiming wage loss 

due to the claimed August 30, 2022 employment injury.

On November 2, 2022 appellant requested reconsideration of the October 24, 2022 

decision and submitted additional evidence. Along with her request, she submitted an October 31, 

2022 statement assertingthat although she indicated an August 30, 2022 date of injury in her Form 

CA-1, her actual date of injury may be different because she was on preapproved vacation leave 

on September 5, 2022, which is the date she was tested for and received a positive COVID-19 

diagnosis.

By decision dated November 14, 2022, OWCP denied appellant’s request for 

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

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.2 This latter section provides that written notice of injury shall be given within 30 days. 3 

The context of section 8122 makes clear that this means within 30 days of the injury.4

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.5

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.”

6

 

2

5 U.S.C. § 8118(a).

3

Id. at § 8122(a)(2).

4 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).

5

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).

6 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 (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

In its October 24, 2022 merit decision 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.7 Following this and other such further 

development as deemed necessary, OWCP shall issue a de novo decision.8 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. The November 14, 2022decision of the Office of Workers’

Compensation Programs is set aside as moot.

Issued: September 8, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

7

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).

8

In light of the Board’s disposition of the merit issue, the nonmerit issue is moot.