United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.V., Appellant 

and 

DEPARTMENT OF THE TREASURY, OFFICE 

OF THE COMPTROLLER OF THE 

CURRENCY, Washington, DC, Employer 

__________________________________________ 

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Docket No. 14-876 

Issued: May 27, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Acting Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 7, 2014 appellant filed a timely appeal from an October 29, 2013 merit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim as 

untimely filed and a February 20, 2014 nonmerit decision denying his request for 

reconsideration. 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. 

ISSUES 

The issues are: (1) whether appellant’s occupational disease claim is barred by the 

applicable time limitation provisions of FECA; and (2) whether OWCP properly denied his 

request for further merit review under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On July 29, 2013 appellant, then a 65-year-old retired organizational effectiveness 

supervisor, filed an occupational disease claim (Form CA-2) alleging that he developed a back 

injury due to his federal employment duties. He stated that he first became aware of his 

condition and of its relationship to his employment on April 1, 1997. Appellant noted that in 

April 1997, he became aware of increasing back pain due to the frequent travel required by his 

employment. He further stated that he was retired by the army due to a back injury and worked 

for the next 25 years for the Department of the Treasury without incident until December 1997 

when he was no longer able to work and was placed on medical leave. On the reverse side of the 

form, appellant’s supervisor reported that he was first notified of the injury on August 12, 2013. 

By letter dated August 20, 2013, OWCP advised appellant that the evidence of record 

was insufficient to establish his claim and requested that he submit additional factual and 

medical evidence. It also requested that the employing establishment provide a statement 

detailing appellant’s job duties, dates of employment and any other evidence regarding his 

allegations. 

By letter dated August 28, 2013, appellant stated that he provided timely notification of 

his injury because he was processed for and received disability retirement from the Office of the 

Comptroller of Currency (OCC). In support of his claim, he submitted an April 7, 1976 

Department of the Air Force Memorandum which noted that he retired from the U.S. Army on 

May 11, 1971 due to disability. 

By letter dated October 17, 2013, the employing establishment reported that appellant’s 

supervisors were no longer with the employing establishment and could not comment on the 

allegations made. It controverted the claim stating that his file contained nothing that would 

indicate an on-the-job injury. The employing establishment reported that appellant was 

receiving long-term disability benefits from OCC. It further noted that the policy was not in lieu 

of and did not affect any requirements under workers’ compensation. 

The employing establishment provided an official position description for a customer 

service and organizational performance officer as well as a copy of appellant’s performance 

evaluation. 

By decision dated October 29, 2013, OWCP denied appellant’s claim on the grounds that 

it was not timely filed. It found that he had failed to file a claim within three years of the date of 

alleged injury, April 1, 1997. OWCP further noted that there was no evidence that a supervisor 

had actual knowledge of appellant’s claim within 30 days of the date of injury. 

On November 20, 2013 appellant requested reconsideration of OWCP’s decision. 

In a November 20, 2013 narrative statement, appellant reported that the employing 

establishment never presented him with the option to file a workers’ compensation claim. He 

noted that it processed him for disability retirement and he received long-term disability 

payments which would be terminated in October 2014, causing him to file a workers’ 

compensation claim. 
3

Appellant submitted a Civil Service Retirement System (CSRS) “supervisor’s statement 

form” for disability retirement. His supervisor reported that his back injury was making it 

difficult for him to travel to office sites and would not be able to perform his job according to 

expectation. The form did not have a legible date. 

Appellant also submitted a February 3, 1998 OCC letter documenting his long-term 

disability claim with an attending physician’s report, a March 31, 1998 CSRS application for 

immediate retirement, an April 23, 1998 Office of Personnel Management (OPM) letter 

welcoming him to CSRS and an October 22, 2005 medical report. 

By decision dated February 20, 2014, OWCP denied appellant’s request for 

reconsideration finding that he neither raised substantive legal questions nor included new and 

relevant evidence. It noted that, while he submitted new evidence, it was irrelevant and 

immaterial to the issue upon which his claim was denied. 

LEGAL PRECEDENT -- ISSUE 1 

In cases of injury on or after September 7, 1974, section 8122(a) of FECA provides that 

an original claim for compensation for disability or death must be filed within three years after 

the injury or death. Compensation for disability or death, including medical care in disability 

cases, may not be allowed if a claim is not filed within that time unless: 

“(1) the immediate superior had actual knowledge of the injury or death within 30 

days. The knowledge must be such as to put the immediate superior reasonably 

on notice of an on-the-job injury or death; or 

“(2) written notice of injury or death as specified in section 8119 was given within 

30 days.”2

The three-year time period begins to run from the time the employee is aware or by the 

exercise of reasonable diligence should have been aware, that his or her condition is causally 

related to the employment. For actual knowledge of a supervisor to be regarded as timely filing, 

an employee must show not only that the immediate superior knew that he or she was injured, 

but also knew or reasonably should have known that it was an on-the-job injury.3

Even if an original claim for compensation for disability or death is not filed within three 

years after the injury or death, compensation for disability or death may be allowed if written 

notice of injury or death as specified in section 8119 was given within 30 days. Section 8119 

provides that a notice of injury or death shall be given within 30 days after the injury or death; be 

given to the immediate superior of the employee by personal delivery or be depositing it in the 

mail properly stamped and addressed; be in writing; state the name and address of the employee; 

state the year, month, day and hour when and the particular locality where the injury or death 

occurred; state the cause and nature of the injury or in the case of death, the employment factors 

 2 Id. 

3 Duet Brinson, 52 ECAB 168 (2000). 
4

believed to be the cause; and be signed by and contain the address of the individual giving the 

notice.4

 Actual knowledge and written notice of injury under section 8119 serve to satisfy the 

statutory period for filing an original claim for compensation.5

In a case of occupational disease, the time for filing a claim begins to run when the 

employee first becomes aware or reasonably should have been aware, of a possible relationship 

between his or her condition and his or her employment. When an employee becomes aware or 

reasonably should have been aware that he has a condition which has been adversely affected by 

factors of his or her federal employment, the limitation period begins to run even if the employee 

does not know the precise nature of the impairment or whether the ultimate result of such affect 

will be temporary or permanent.6 Where the employee continues in the same employment after 

he or she reasonably should have been aware that he or she has a condition which has been 

adversely affected by factors of the federal employment awareness, the time limitation begins to 

run on the date of the last exposure to the implicated factors.7 The requirement to file a claim 

within three years is the claimant’s burden and not that of the employing establishment.8

ANALYSIS -- ISSUE 1 

Appellant claimed that he developed a back condition due to conditions of his 

employment as an organizational effectiveness supervisor. By decision dated October 29, 2013, 

OWCP denied his claim on the grounds that it was untimely filed. The Board finds that 

appellant’s claim for compensation is barred by the applicable time limitation provisions of 

FECA. 

On his Form CA-2, appellant alleged that he was last exposed to his work conditions on 

April 1, 1997 when he retired. He further alleged that he became aware of his back injury and of 

its relationship to his employment on April 1, 1997. Appellant did not deny knowing that his 

condition was caused by his employment, but rather blamed his delay in filing a claim on the 

employing establishment which allegedly failed to inform him that he was eligible for workers’ 

compensation. He also argued that he initially did not file a claim because he was receiving 

disability retirement from OCC. Appellant however also states that he was aware of an 

employment-related injury beginning April 1, 1997 for which he received disability retirement. 

The Board finds that the evidence establishes that he knew or reasonably should have known of a 

relationship between his claimed condition and that alleged factors of his employment at the time 

of his last exposure. 

When an employee continues in the same employment after he reasonably should have 

been aware that he has a condition which has been adversely affected by factors of federal 

 4 Larry E. Young, 52 ECAB 264 (2001). 

5 Laura L. Harrison, 52 ECAB 515 (2001). 

6 Supra note 4. 

7 Id. 

8 Debra Young Bruce, 52 ECAB 315 (2001). 
5

employment,9 the time limitation begins to run on the date of the last exposure to the implicated 

factors.10 Therefore, the time limitation in this case began to run on April 1, 1997, appellant’s 

last day of work and exposure to the implicated employment factors. Since appellant did not file 

a claim until July 29, 2013, his claim was filed well outside the three-year limitation period. 

While the Board has determined that appellant’s claim does not fall within the three-year 

limitation period, his claim would still be regarded as timely under section 8122(a)(1) of FECA 

if his immediate supervisor had actual knowledge of the injury within 30 days of his last 

exposure to the conditions alleged to have caused his condition, i.e., within 30 days of 

April 1, 1997. The knowledge must be such as to put the immediate superior reasonably on 

notice of an on-the-job injury or death.11 Additionally, the claim would be deemed timely if 

written notice of injury or death was provided within 30 days.12 Appellant, however, has not 

alleged that his supervisor had actual knowledge of an on-the-job injury within 30 days of his 

last exposure and did not submit evidence to establish that his supervisor, another employing 

establishment official or an employing establishment physician or dispensary, had actual 

knowledge of his claimed employment injury within 30 days after the date of his last exposure to 

the implicated employment factors.13 

The Board finds that appellant has not established actual knowledge by his supervisors of 

his work-related condition within 30 days. Therefore, appellant has not established a timely 

claim. 

Appellant argues that the employing establishment failed to inform him that he was 

eligible for workers’ compensation. Section 8122(d)(3) of FECA14 provides that time 

limitations for filing a claim do not run against any individual whose failure to comply is 

excused by the Secretary on the grounds that such notice could not be given because of 

exceptional circumstances. None of the exceptions relating to appellant’s ability to file a claim 

apply in this case. Appellant was not a minor, has not alleged that he was incompetent and has 

not provided evidence of an exceptional circumstance that would excuse his failure to timely file 

a claim.15 His excuse for not filing a timely claim was that he was unaware that he was eligible 

for workers’ compensation. However, the Board has held that unawareness of possible 

 9

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6 (March 1993); see James A. 

Sheppard, 55 ECAB 515 (2004). 

10 Id. 

11 5 U.S.C. § 8122(a)(1); see Jose Salaz, 41 ECAB 743, 746 (1990); Kathryn A. Bernal, 38 ECAB 470, 

472 (1987). 

12 Id. at §§ 8122(a)(1) and (2). 

13 See Ralph L. Dill, 57 ECAB 248 (2006) (appellant’s statement on his claim form that he reported his injury to 

his supervisor was insufficient to show that his supervisor was on notice in the absence of other evidence that his 

supervisor had actual knowledge of a work injury within 30 days of his last workplace exposure). 

14 5 U.S.C. § 8122(d)(3). 

15 E.B., claiming as widow of N.B., 58 ECAB 629 (2007). 
6

entitlement,16 lack of access to information17 and ignorance of the law or of one’s obligations 

under it18 do not constitute exceptional circumstances that could excuse a failure to file a timely 

claim.19 Thus, appellant did not establish that he was prevented from filing a timely claim by 

exceptional circumstances as that term is used in section 8122(d)(3) of FECA. The Board finds 

that he has not established that he timely filed a claim for compensation within three years after 

his retirement April 1, 1997. 

LEGAL PRECEDENT -- ISSUE 2 

To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP 

regulations provide that the evidence or argument submitted by a claimant must: (1) show that 

OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal 

argument not previously considered by OWCP; or (3) constitute relevant and pertinent new 

evidence not previously considered by OWCP.20 Section 10.608(b) of OWCP regulations 

provide that when an application for reconsideration does not meet at least one of the three 

requirements enumerated under section 10.606(b)(2), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.21

ANALYSIS -- ISSUE 2 

The Board finds that the refusal of OWCP to reopen appellant’s case for further 

consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an 

abuse of discretion. 

The issue presented on appeal is whether appellant met any of the requirements of 

20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the 

claim. In his November 20, 2013 application for reconsideration, appellant did not show that 

OWCP erroneously applied or interpreted a specific point of law. He did not advance a new and 

relevant legal argument. Appellant’s argument was that the employing establishment never 

presented him with the option to file a workers’ compensation claim and he was receiving 

disability retirement beginning April 1, 1997. As previously noted, unawareness of possible 

entitlement, lack of access to information and ignorance of the law or of one’s obligations under 

it do not constitute exceptional circumstances that could excuse a failure to file a timely claim.22 

As such, appellant’s arguments fail to establish a basis for review of the merits of his claim. 

 16 See supra note 12. 

17 Kathryn L. Cornett (Elmer Cornett), 54 ECAB 812 (2003). 

18 George M. Dickerson, 34 ECAB 135 (1982). 

19 Michael Thomas Plante, 44 ECAB 510 (1993). 

20 D.K., 59 ECAB 141 (2007). 

21 K.H., 59 ECAB 495 (2008). 

22 M.D., Docket No. 10-938 (issued January 10, 2011). 
7

The underlying issue in this case was whether appellant’s claim for compensation was 

barred by the applicable time limitation provisions of FECA. Appellant filed his July 29, 2013 

occupational disease claim more than three years after the April 1, 1997 date of last exposure 

when he retired from his federal employment. The relevant issue, therefore, was whether his 

immediate superior had knowledge of a work injury within 30 days of April 1, 1997 or whether 

written notice of the April 1, 1997 injury, as specified in section 8119, was given within 30 

days.23 While appellant submitted new evidence in support of his claim, the evidence was 

irrelevant and immaterial to the issue at hand.24 

The Board notes that the February 3, 1998 OCC letter, March 31, 1998 CSRS application 

for immediate retirement and April 23, 1998 OPM letter welcoming appellant to CSRS all fail to 

establish that the employing establishment had knowledge of an employment-related back injury 

within 30 days of April 1, 1997. The Board has held that disability and factual determinations 

made by other agencies pursuant to other statutory schemes are not binding on OWCP or the 

Board with respect to whether the individual is disabled under FECA.25 The documents 

establishing appellant’s disability retirement beginning in April 1997 have no bearing on this 

claim as they fail to establish a supervisor’s knowledge of a work-related employment injury 

within 30 days of April 1, 1997.26 Medical reports are not relevant because it is premature to 

consider causal relationship between a condition and appellant’s employment duties until it is 

established that a claim is timely filed.27 

The CSRS “supervisor’s statement form” also fails to establish that appellant’s claim was 

timely filed and is immaterial to the issue at hand. The form does not contain a legible date to 

determine if it was signed within 30 days of April 1, 1997. Moreover, while appellant’s 

supervisor indicates that appellant could not perform his employment duties due to a back injury, 

the supervisor makes no indication that he knew or reasonably should have known that 

appellant’s back injury was caused by his federal employment duties.28 The Board has held that 

the submission of evidence which does not address the particular issue involved does not 

constitute a basis for reopening a case.29 Claimant may obtain a merit review of an OWCP 

decision by submitting new and relevant evidence. In this case, while appellant submitted new 

evidence, it was not relevant in the issue in this case. 

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a 

 23 Supra note 1. See also D.S., Docket No. 11-1498 (issued February 15, 2012). 

24 Van Frachen, Docket No. 03-925 (issued June 20, 2003). 

25 See Stephen R. Lubin, 43 ECAB 564, 568 (1992); Hazelee K. Anderson, 37 ECAB 277, 283 (1986). 

26 Nancy J. Yost, Docket No. 00-1992 (issued February 27, 2002). 

27 See L.W., Docket No. 11-331 (issued September 6, 2011); Louis Alterisio, 32 ECAB 378, fn. 6 (1980) (where a 

claim is not timely filed, it is unnecessary to address the issue of causal relationship). 

28 D.H., Docket No. 11-2130 (issued May 11, 2012). 

29 Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979). 
8

specific point of law, advance a relevant legal argument not previously considered by OWCP or 

submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review.30

CONCLUSION 

The Board finds that appellant’s occupational disease claim was untimely filed. OWCP 

properly denied his request for reconsideration without a merit review. 

ORDER 

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ 

decisions dated February 20, 2014 and October 29, 2013 are affirmed. 

Issued: May 27, 2014 

Washington, DC 

Patricia Howard Fitzgerald, Acting Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 30 Gene E. Harris, Docket No. 94-162 (issued July 11, 1995).