Is COVID Still Compensable? Welcome to the New Normal

By Frank Ferreri, February 12, 2025

Quick facts:

• An HHS optometrist came down with COVID-19 and felt confident she caught the virus at work.
• Her claim was judged under new standards that made the bar for establishing COVID compensability tougher to meet than during the height of the pandemic.
• The optometrist’s evidence consisted of a doctor’s statement that she had COVID-19 but did not include anything about a laboratory test, and ECAB found insufficient evidence and denied her claim.

Remember when everything about COVID-19 was dubbed the “new normal?” Since early 2023, as far as Federal workers’ compensation is concerned, coronavirus-related claims are just ordinary normal, as evidenced by J.W. and Department of Health & Human Services, No. 24-0028 (Dec. 20, 2024). In this case, the Employees’ Compensation Appeals Board (ECAB) addressed the medical evidence it takes for an employee to show her COVID infection was a compensable workplace injury.

The employee, an optometrist, filed a traumatic injury claim. She alleged she sustained COVID-19 on Feb. 24, 2023, while in the performance of duty. She had initial body aches on that day and stopped working until March 6, 2023.  A doctor’s report confirmed the optometrist had a positive COVID-19 test on March 1, 2023.

The Office of Workers’ Compensation Programs (OWCP) converted the claim to an occupational disease claim because there was no clear, identifiable incident or incidents over a single day or work shift that she alleged to have caused the diagnosed COVID-19 condition. OWCP also informed the optometrist of the factual and medical evidence she needed to support her claim.

In response, the optometrist provided a statement noting:

• “A few” conversations she had with a laboratory supervisor who also tested positive for COVID-19.
• While performing optometry examinations, she was in close proximity to patients and sat within arm’s reach, and sometimes closer, for a prolonged period of time.
• The agency’s optometry department had 119 patients in February 2023.
• Her symptoms first occurred on Feb. 24, 2023, and for the two weeks prior, she did not leave her house other than to go to work.
• No family members developed COVID-19.
• The optometrist’s supervisor called her several times to advise the COVID positivity rate was “very high” at the employing establishment and recommended that she get tested.

OWCP denied the optometrist’s occupational disease claim, finding she had not submitted medical evidence sufficient to establish a diagnosis of COVID-19 in connection with the accepted employment exposure. The employee took her case before ECAB.

What’s the rule?

Per FECA Bulletin No. 23-02 (December 15, 2022), to establish a Federal workers’ compensation claim for COVID-19 diagnosed after Jan. 27, 2023, a claimant must provide:

1. Evidence of a COVID-19 diagnosis.
2. Evidence that establishes that the claimant actually experienced the employment incidents or factors alleged to have occurred.
3. Evidence that the alleged incidents or factors occurred in the claimant’s performance of duty.
4. Evidence that the COVID-19 condition was found by a physician to be causally related to the accepted employment incidents or factors.

That’s not all, though. A claimant must submit either of the following:

1. A positive polymerase chain reaction or antigen COVID-19 test result.
2. A positive antibody test result, together with contemporaneous medical evidence that the claimant had documented symptoms of or was treated for COVID-19 by a physician.

If no positive laboratory test is available, the claimant must submit a COVID-19 diagnosis from a physician, together with a rationalized medical opinion supporting the diagnosis and an explanation as to why a positive laboratory test is not available.

In support of her claim, the optometrist submitted a doctor’s report, which indicated the optometrist had a positive COVID-19 test. However, without explaining why a positive laboratory test result was unavailable, the doctor’s statement was insufficient to establish a COVID-19 diagnosis under the FECA Bulletin No. 23-02.

Thus, ECAB ruled against the optometrist. However, it granted her the opportunity to submit new evidence or argument with a written request for reconsideration.

When it comes to COVID, a workers’ compensation claim doesn’t enjoy the special status it once did. Also, there is no presumption an infection was due to employment. Instead, what a claimant should be prepared to do – and what an agency should defend on – is determine whether the evidence complies with FECA Bulletin No. 23-02. [email protected]

Related training:

• Absence, Leave Abuse, and Medical Issues Week, June 2-6