United States Department of Labor

Employees’ Compensation Appeals Board

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E.K., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS AND BORDER PROTECTION, 

Dallas, TX, Employer

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Docket No. 21-1092

Issued: June 6, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

On July 13, 2021 appellant filed a timely appeal from a June 29, 2021 merit decision of the

Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards

assigned Docket No. 21-1092.

On May 24, 2021 appellant, then a 55-year-old customs and border patrol agent, filed a 

traumatic injury claim (Form CA-1) alleging that on May 1, 2021 he tested positive for the 

COVID-19 virus, which he contracted on April 22, 2021 while in the performance of duty. He

asserted that he was hospitalized from May 6 through 7, 2021 due to his symptoms. On the reverse 

side of the claim form, an employing establishment supervisor acknowledged that appellant was 

injured in the performance of duty. Appellant stopped work on April 22, 2021 and returned to 

work on May 24, 2021. 

1 The Board notes that,following the June 29, 2021 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

Accompanying the claim form, appellant submitted a May 1, 2021 respiratory panel, which 

detected the presence of COVID-19, and indicated that other coronaviruses were not detected. 

In a May 5, 2021 treatment note, Dr. Justin Northeim, a Board-certified osteopathic 

physician, recounted appellant’s symptoms of fever and shortness of breath and diagnosed 

COVID-19.

On May 7, 2021 appellant underwent chest x-rays following a clinical history of cough, 

fever, and COVID-19. This study demonstrated bronchopneumonia.

In a May 23, 2021 note, Wissam Noubani, a family medicine physician assistant, reported 

appellant’s positive COVID-19 test results from May 1, 2021 and found that he had recovered 

from his COVID-19 symptoms. 

By decision dated June 29, 2021, OWCP denied appellant’s traumatic injury claim,finding 

that the medical evidence of record was insufficient to establish a diagnosis of COVID-19. It

concluded, therefore, that the requirements had not been met to establish an injury under the 

Federal Employees’ Compensation Act (FECA).

2

The Board, having duly considered the matter, finds that this case is not in posture for 

decision.

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim, including that the individual is an employee of the United 

States within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation of FECA,4that an injury was sustained in the performance of duty as alleged, and that 

any disability or medical condition for which compensation is claimed is causally related to the 

employment injury.5 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6

Under section 4016 of the American Rescue Plan Act (ARPA) of 20217 any claim made 

for COVID-19 by or on behalf of a “covered employee” for benefits under FECA will be deemed 

to have an injury proximately caused by exposure to COVID-19 arising out of the nature of the 

covered employee’s employment. A “covered employee” is defined by ARPA as an employee 

under 5 U.S.C. § 8101(a) and employed in the federal service at any time during the period 

2

5 U.S.C § 8101 et seq.

3

Id.

4 F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April26, 2019); JoeD. 

Cameron, 41 ECAB 153 (1989).

5 L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020); 

James E. Chadden, Sr., 40 ECAB 312 (1988).

6 P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

Delores C. Ellyett, 41 ECAB 992 (1990).

7 Public Law 117-2 (March 11, 2021).
3

beginning on January 27, 2020 and ending on January 27, 2023. A “covered employee” prior to a 

diagnosis of COVID-19 must have carried out duties that required a physical interaction with at 

least one other person (a patient, member of the public, or a coworker); or was otherwise subject 

to a risk of exposure to COVID-19.8

Exposure to COVID-19 alone is not sufficient to establish a work-related medical 

condition. Manifestation of COVID-19 must occur within 21 days of the covered exposure.9 To 

establish a diagnosis of COVID-19, a claimant must submit the following: (1) a positive 

Polymerase Chain Reaction (PCR) or Antigen COVID-19 test result; (2) a positive Antibody test 

result, together with contemporaneous medical evidence that the claimant had documented 

symptoms of and/or was treated for COVID-19 by a physician (a notice to quarantine is not 

sufficient if there was no evidence of illness); or (3) if no positive laboratory test is available, a 

COVID-19 diagnosis from a physician together with rationalized medical opinion supporting the 

diagnosis and an explanation as to why a positive test result is not available. Self-administered 

COVID-19 testing is insufficient to establish a diagnosis of COVID-19 under FECA unless the 

administration of the self-test is monitored by a medical professional and the results are verified 

through documentation submitted by such professional. 10

Paragraph 2 of FECA Bulletin No. 21-10 provides, inter alia, “The FECA program will 

review all COVID-19 claims previously denied in accordance with the guidance provided in FECA 

Bulletin 21-09 based on the submission of an antigen test without contemporaneous medical to 

determine if the claim can now be accepted. This will occur without a request from the claimant. 

If the FECA program determines that the case can now be accepted under the ARPA, the case will 

be reopened under the Director’s own motion under Section 8128(a) of the FECA, and the case 

will be accepted. If this occurs, the claimant and employing agency will be notified. ”

In light of the above-noted amendments, OWCP did not take into consideration all of the 

applicable criteria for establishing a diagnosis of COVID-19 when it denied appellant’s claim. 

This case shall therefore be remanded for consideration and application of FECA Bulletin Nos. 

21-09, 21-10, and 22-06 with regard to appellant’s claim for COVID-19.11 Following this and 

other such further development as deemed necessary, OWCP shall issue a de novo decision. 

Accordingly,

8 ARPA, id.; FECA Bulletin No. 21-09 (issued April 28, 2021).

9 FECA Bulletin No. 21-09 (issued April 28, 2021).

10 FECA Bulletin Nos. 21-09 (issued April 28, 2021), 21-10 (issued August 17, 2021), and 22-06 (issued 

February16, 2022). FECA Bulletin No. 21-10 amended FECA Bulletin No. 21-09 in part to allow for a positive 

Antigen COVID-19 test result. FECA Bulletin No. 22-06 amended FECA Bulletin Nos. 21-09 and 21-10 to update 

COVID-19 claims processing guidelines relating to reinfection and home tests. 

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

Case, G.C., Docket No. 21-1016 (issued September 27, 2022) (the Board remanded for proper application of FECA 

Bulletin No. 21-09).
4

IT IS HEREBY ORDERED THAT the June 29, 2021 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: June 6, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board