United States Department of Labor

Employees’ Compensation Appeals Board

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R.W., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

MARTINSBURG VA MEDICAL CENTER, 

Martinsburg, WV, Employer

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Docket No. 23-0706

Issued: September 21, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On April 20, 2023 appellant filed a timely appeal from a January 9, 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.

ISSUE

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

continuation of pay (COP).

FACTUAL HISTORY

On December 30, 2022 appellant, then a 38-year-old nursing assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on November 29, 2022 she tested positive for COVID-19

after being exposed to COVID-19 in the performance of duty. On the reverse side of the claim 

1

5 U.S.C. § 8101 et seq.
2

form, appellant’s supervisor acknowledged that appellant was injured in the performance of duty. 

Appellant stopped work on November 29, 2022 and returned on December 7, 2022.

On January 5, 2023 OWCP received a work status report (Form CA-3) indicating that 

appellant stopped work on November 29, 2022 and returned on December 7, 2022 full time with

no restrictions.

By decision dated January 9, 2023, OWCP denied appellant’s claim for COP, finding that 

she had not reported her injury on an OWCP-approved form within 30 days of her alleged 

November 29, 2022 employment injury. It advised appellant that the decision only concerned 

her entitlement to COP, and did not affect her entitlement to other 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.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 is 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 [d]ate of [i]njury since the precise 

time of transmission may not always be known due to the nature of the virus. ”

6

2

Id. at § 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); William E. 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

ANALYSIS

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

COP. 

The record reflects that appellant filed written notice of her traumatic injury on a Form

CA-1 on December 30, 2022, alleging that on November 29, 2022 she tested positive for 

COVID-19 after being exposed to COVID-19 in the performance of duty. Appellant stopped 

work on November 29, 2022, and returned on December 7, 2022. As previously noted, FECA 

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

November 29, 2022.7 As appellant filed her Form CA-1 on December 30, 2022, more than 30 

days after the November 29, 2022 date of injury, the Board finds that she has not met her burden 

of proof.8

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 her burden of proof to establish entitlement to 

COP.

7

Id.

8

See J.C., Docket No. 22-0666 (issued October 26, 2022).
4

ORDER

IT IS HEREBY ORDERED THAT the January 9, 2023 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 21, 2023

Washington, DC

Alec J. Koromilas, 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