United States Department of Labor

Employees’ Compensation Appeals Board

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A.C., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, PORT 

OF ENTRY, Savannah, GA, Employer

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Docket No. 22-0757

Issued: February 9, 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 April 18, 2022 appellant filed a timely appeal from a February 28, 2022 merit decision 

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

assigned Docket No. 22-0757. 

On February 15, 2022 appellant, then a 56-year-old customs and border protection 

employee, filed a traumatic injury claim (Form CA-1) alleging that on January 6, 2022 he sustained 

a continuous cough as a result of being exposed to the public while in the performance of duty. 

He indicated on his claim form that he was claiming COP. Appellant stopped work on January 18 

and returned to work on January 27, 2022. On the reverse side of the claim form, appellant’s 

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

In support of his claim, appellant submitted a polymerase chain reaction (PCR) test result 

dated January 6, 2022, prepared by Dr. Shrinesh Patel, an internal medicine specialist, which 

indicated that appellant’s test was negative and did not show any signs of COVID-19 infection. 

He also submitted an antigen test result for COVID-19 dated January 21, 2022, prepared by

Dr. Patel which indicated that COVID-19 antigens were detected in appellant’s test. 

By decision dated February 28, 2022, OWCP denied appellant’s claim for COP, finding 

that he had not reported his injury on an OWCP-approved form within 30 days of his alleged 
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January 6, 2022 employment injury. It noted that the denial of COP did not preclude him from 

filing a claim for disability due to the effects of his claimed injury.

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.”

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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 

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); William E. 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 of 

2021 (ARPA) was signed into law. Pub. L. No. 117–2. OWCP issued FECA Bulletin 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.
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for COP.6 Following this and other such further development as deemed necessary, OWCP shall 

issue a de novo decision. Accordingly,

ORDER

IT IS HEREBY ORDERED THAT the February 28, 2022 merit 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: February 9, 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

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).