By Frank Ferreri, February 14, 2023
As the old year came to a close, the U.S. Department of Labor’s Office of Workers’ Compensation Programs (OWCP) issued a Federal Employees’ Compensation Act (FECA) Bulletin (No. 23-02, to be exact) announcing changes that would be coming related to COVID-19 claims in the new year.
Well, it’s now February, and those changes took effect Jan. 27. So, what’s the new setup? The following chart breaks it down.
|COVID-19 diagnoses prior to Jan. 27
|A COVID-19 positive test result that occurred prior to Jan. 27 triggers application of the steps in the American Rescue Plan Act (ARPA), which purport to make it easier for Federal employees to file and receive benefits for COVID-related workers’ compensation claims.
For post-Jan. 27 positive results, the five basic elements set forth in 20 CFR §10.115, which apply to Federal workers’ compensation claims generally, govern.
|What evidence is needed to establish a claim under 20 CFR §10.115?
|1. The claim must be filed within FECA’s time limits.
2. The injured person must have been, at the time of injury, an employee of the United States as defined in 5 U.S.C. § 8101.
3. The claimant must provide evidence:
4. The alleged events or employment factors must occur while the employee was in the performance of duty.
5. The COVID-19 must be found by a physician to be causally related to the established events or employment factors within the employee’s Federal employment. (Note: It’s not enough that the condition manifests itself during a period of Federal employment, nor is it enough that the claimant believes that factors of employment caused or aggravated the condition).
|What form should be used?
|Claims for COVID-19 diagnosed after Jan. 27 should generally be filed on the CA-2. This is because in most cases, there is no clear, identifiable incident or incidents over a single day or work shift to which an injured worker can specifically attribute a COVID-19 diagnosis.
Now that Congress intends to end specialized treatment of COVID-19 claims, the coronavirus will receive the same treatment as other airborne infectious diseases “where the specific etiology is unclear.”
|An exception allowing use of the CA-1
|A CA-1 can be used if the event alleged to have caused the diagnosed COVID-19 is identifiable as to 1) time; and 2) place of occurrence. It must be a specific event or incident or series of events or incidents during a single day or work shift to warrant CA-1 usage.
|The role of claims examiners
|A claims examiner (CE) must make a factual determination by reviewing the evidence to decide whether the claimant actually experienced the specific events or employment factors claimed on a CA-1 or CA-2.
A CE may credit statements made by the claimant regarding facts of which the claimant has direct knowledge.
OWCP provided two examples:
1. If the claimant alleges that they were in close contact to 10 individuals at work, which the claimant believes resulted in the claimant getting COVID-19, OWCP may accept as fact that the claimant was in close contact to 10 individuals at work.
2. If the claimant alleges their COVID-19 is the result of “sitting next to an individual that had tested positive for COVID-19,” OWCP may accept as fact that the claimant sat next to the individual but would require the claimant to provide evidence in support of the allegation that the individual sitting next to them was COVID-19 positive.
|A rationalized medical report establishing a causal link between a diagnosis of COVID-19 and factors of Federal employment is required for all claims of COVID-19 diagnosed after Jan. 27.
|One holdover from the pandemic era is the medical evidence required to establish a COVID-19 diagnosis, which is any of the following:
1. A positive polymerase chain reaction (PCR) or antigen COVID-19 test result.
2. A positive antibody COVID-19 test result combined with contemporaneous medical evidence that the claimant had documented symptoms of and/or was treated for COVID-19 by a physician.
3. 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 could not be obtained (this could apply when a claimant has a false negative test).
|Self-administered COVID-19 tests
|Although at-home over-the-counter test kits are easy to use and much easier to find than they were not too long ago, they are insufficient to establish a diagnosis of COVID-19 under FECA. Why? There’s no way for FECA claims staff to affirmatively establish the date and time that the sample was collected or that the sample collected was from the injured Federal employee making the claim.
|Exception for self-administered COVID-19 tests
|If the administration of a self-test was monitored by a medical professional and the results are verified through documentation submitted by that professional, then an at-home test could be used in support of a claim.
OWCP’s treatment of COVID-19 reflects the stance of the Federal government (and probably broad segments of the general population) that the new normal is shifting from the pandemic phase to the endemic era. The long and short of it is that, for purposes of Federal workers’ compensation coverage, COVID-19 will receive treatment that is akin to other infections caught on the job. [email protected]