United States Department of Labor

Employees’ Compensation Appeals Board

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M.R., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

RAYMOND G. MURPHY VA MEDICAL 

CENTER, Albuquerque, NM, Employer

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Docket No. 23-0443

Issued: October 16, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 1, 2023 appellant filed a timely appeal from a January 23, 2023 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the January 23, 2023 decision, OWCP received additional evidence. 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

ISSUE

The issue is whether appellant has met his burden of proof to establish entitlement to 

continuation of pay (COP).

FACTUAL HISTORY

On January 11, 2023 appellant, then a 54-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on December 7, 2022 he was exposed to COVID-19 as a result of 

contact with staff and visitors while in the performance of duty. He did not indicate the date that 

he stopped work. 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 laboratory test result for a polymerase chain 

reaction test for COVID-19 performed on December 7, 2022, which indicated that his test was 

positive for COVID-19. 

By decision dated January 23, 2023, OWCP denied appellant’s claim for COP, finding that 

he had not reported his injury on an OWCP-approved form within 30 days following the injury. It 

advised him that the denial of COP did not affect his entitlement to compensation benefits. 

LEGAL PRECEDENT

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.3 This latter section provides that written notice of injury shall be given within 30 days. 4 

The context of section 8122 makes clear that this means within 30 days of the injury. 5

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 a 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.6

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 

3

5 U.S.C. § 8118(a).

4

Id. at § 8122(a)(2).

5 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).

6

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).
3

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.”

7

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish entitlement to 

COP.

The record reflects that appellant tested positive for COVID-19 on December 7, 2022. He 

filed written notice of his traumatic injury on a Form CA-1 on January 11, 2023 alleging that on 

December 7, 2022 he contracted COVID-19 while in the performance of duty. As previously 

noted, FECA Bulletin No. 21-09 defines date of injury as the date of last exposure, which in this 

case was December 7, 2022.8 As appellant filed his Form CA-1 on January 11, 2012, more than 

30 days after the December 7, 2022 date of injury, the Board finds that he has not met his burden 

of proof.

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish entitlement to 

COP. 

7 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.

8

Id.
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ORDER

IT IS HEREBY ORDERED THAT the January 23, 2023 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 16, 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