United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

New Orleans, LA, Employer 

__________________________________________ 

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Docket No. 14-909 

Issued: November 6, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 12, 2014 appellant filed a timely appeal from an October 28, 2013 merit 

decision and a December 11, 2013 nonmerit 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 does not have jurisdiction over the merits of this case.2

ISSUES 

The issues are: (1) whether appellant filed a timely claim for compensation under 5 

U.S.C. § 8122(a); and (2) whether OWCP properly denied further merit review of appellant’s 

case under 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq.

2

 Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant to confirm his 

continuing desire for an oral argument in Washington, DC. On September 22, 2014 the Board received appellant’s 

statement dated September 15, 2014 which explained that he was unable to travel for any oral argument due to his 

current poverty. The Board, in its discretion, has decided the appeal on the record. 
2

FACTUAL HISTORY 

On July 11, 2013 appellant, then a 50-year-old postal service agent, filed an occupational 

disease claim alleging that he developed schizophrenia and a personality disorder as a result of 

remembering what caused his poor job performance. He noted that he also experienced 

hallucinations and heard voices. Appellant indicated that he first became aware of his condition 

and realized it resulted from his employment on December 1, 1988. He explained that he did not 

file his claim within 30 days because he was unaware and only received social security 

supplemental payments. 

On the claim form, the employing establishment reported that appellant notified them of 

his condition on July 15, 2013. It further noted that appellant was terminated from employment 

after a 90-day probation and his last day in pay status was January 25, 1989. The employing 

establishment submitted a personnel form which indicated that appellant’s last day in pay status 

for the employing establishment was on January 25, 1989. 

In a decision dated July 18, 2013, OWCP denied appellant’s claim finding that it was not 

filed in a timely manner. It was found that appellant was aware of his condition and the 

relationship between his condition and employment on December 1, 1988, but he did not file his 

occupational disease claim until July 11, 2013. 

In an appeal request form dated July 26, 2013 and received on July 30, 2013, appellant 

requested reconsideration. He noted that supporting evidence was not sent by the employing 

establishment with his original occupational disease claim. 

In an undated statement, appellant requested that the employing establishment reinstate 

his employment following his release from the hospital. He reported that he was initially hired 

under career conditional status and on February 8, 1989 was released from employment due to 

the fact that he did not reach a certain performance level. Appellant explained that following his 

release he went to a family practitioner for complaints of certain abnormalities that he believed 

caused him not being able to maintain the necessary performance level at work. He was 

admitted to the hospital and diagnosed with paranoid schizophrenia. 

In a February 1, 1989 hospital record, Dr. John Earle, a Board-certified family 

practitioner, related appellant’s complaints of trouble with concentration and his history of 

depersonalization detachment, poor job performance and feelings of paranoia. He observed that 

appellant’s speech was slow and deliberate with occasional rumination on paranoid thoughts. 

Appellant denied any hallucinations and delusions. Dr. Earle provided findings on physical 

examination. He reported that appellant had a thought disorder with paranoid features and 

possible paranoid schizophrenia. Appellant also submitted a January 31, 1989 hospital 

admission record and a February 1, 1989 head computerized tomography (CT) scan which 

demonstrated no lesions. 

In letters dated February 2, 1989, appellant informed the personnel department of the 

employing establishment that he was admitted to the hospital on January 31, 1989 and was 

unsure of how long he would be in the hospital. He requested reinstatement on a successful 

completion of the road test after being discharged from the hospital. 
3

In an April 7, 1989 letter, the employing establishment denied appellant’s request for 

reinstatement. It stated that after reviewing his medical documents it was unable to clear 

appellant for employment in his current medical prognosis and condition. 

Appellant also submitted a decision and order from the Social Security Administration 

dated October 5, 2011 regarding his application for supplemental security income benefits due to 

his mental disability. He submitted various social security administration forms regarding his 

application for disability benefits for his diagnosed depression and schizophrenia conditions. 

By decision dated October 28, 2013, OWCP denied modification of the July 18, 2013 

decision finding that appellant had not filed a timely claim for compensation. It determined that 

the evidence failed to establish that appellant filed his claim within 3 years of the date of injury 

or that his immediate supervisor had actual knowledge within 30 days of the date of injury. 

In a letter dated November 13, 2013 and received on November 18, 2013, appellant 

submitted a request for reconsideration. He pointed out that the employing establishment or its 

internal claims insurance company paid his hospitalization treatment for paranoid schizophrenia. 

Appellant stated that, although his hospitalization was reimbursed, he had not received any 

rehabilitation or compensation for this unexpected hospitalization. He alleged that OWCP 

denied his claim because the employing establishment neglected to report his illness to OWCP. 

Appellant further contended that the employing establishment had acted neglectfully against 

someone who was mentally ill. 

In a decision dated December 11, 2013, OWCP denied appellant’s request for 

reconsideration finding that the evidence submitted did not meet any of the requirements 

sufficient to warrant merit review under 5 U.S.C. § 8128(a). 

LEGAL PRECEDENT -- ISSUE 1 

The issue of whether a claim was timely filed is a preliminary jurisdictional issue that 

precedes any determination on the merits of the claim.3 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 supervisor 

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.”4

 3 Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954). 

4

 5 U.S.C. § 8122(a).
4

Section 8119 of FECA 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 by 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 believed to be the cause; and be signed by and contain the 

address of the individual giving the notice.5

 Actual knowledge and written notice of injury under 

section 8119 serve to satisfy the statutory period for filing an original claim for compensation. 

For actual knowledge of a supervisor to be regarded as timely filed, an employee must show not 

only that the immediate supervisor knew that he or she was injured, but also knew or reasonably 

should have known that it was an on-the-job injury.6

Section 8122(b) provides that the time for filing in latent disability cases does not begin 

to run until the claimant is aware, or by the exercise of reasonable diligence should have been 

aware, of the causal relationship between the employment and the compensable disability. The 

Board has held that the applicable statute of limitations commences to run although the employee 

does not know the precise nature of the impairment.7

 

In cases 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 condition and his employment. When an employee becomes aware or reasonably 

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

factors of his or her federal employment, such awareness is competent to start the limitation 

period even though the employee does not know the precise nature of the impairment or whether 

the ultimate result of such affect would be temporary or permanent. Where the 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 employment, the time 

limitation begins to run on the date of the last exposure to the implicated factors.8

 The 

requirement to file a claim within three years is the claimant’s burden and not that of the 

employing establishment.9

ANALYSIS -- ISSUE 1 

Appellant alleges that he developed schizophrenia and a personality disorder as a result 

of his employment. OWCP denied his occupational disease claim as untimely. The Board 

agrees that appellant did not file his claim within the applicable time limitation provisions of 

FECA. 

 5 Id. at § 8119; Larry E. Young, 52 ECAB 264 (2001). 

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

7

 5 U.S.C. § 8122(b); Delmont L. Thompson, 51 ECAB 155 (1999). 

8 Larry E. Young, supra note 5. 

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

When appellant filed his claim for an employment-related condition on July 11, 2013, he 

indicated that he was first aware of his condition and its relationship to his employment on 

December 1, 1988. Accordingly, he indicated that on December 1, 1988 he was aware or 

reasonably should have been aware of a possible relationship between his mental condition and 

factors of his federal employment. The Board finds that the date appellant placed on his claim 

for compensation, December 1, 1988, is probative evidence as the date he first became aware 

that his condition was related to his federal employment.10

As noted above, however, if an employee continues to be exposed to injurious working 

conditions, the time limitation begins to run on the date of the last exposure. Therefore, the time 

for filing appellant’s claim did not begin to run until January 25, 1989, the date he was 

terminated from employment. Accordingly, the three-year statute of limitations would have 

expired no later than January 25, 1992. The Board finds that because appellant did not file his 

claim until July 11, 2013 his occupational disease claim remains barred by the statute of 

limitations. 

Appellant’s claim would still be regarded as timely under FECA if his immediate 

supervisor had actual knowledge of his injury within 30 days or if written notice of injury was 

given to his immediate supervisor within 30 days as specified in section 8119. Although there is 

evidence that appellant notified the employing establishment via letters dated February 2, 1989 

and February 1, 1989 that he was hospitalized, the Board finds that this is insufficient to establish 

that his supervisor had actual knowledge of any on-the-job injury within 30 days. Even if the 

employing establishment knew that appellant suffered from a medical condition during his 

employment, appellant also has to show that his supervisors knew or reasonably should have 

known that this condition was caused by his employment.11 In this case, the February 2, 1989 

letter and February 1, 1989 medical report is insufficient to establish that his superior had 

constructive knowledge sufficient to be reasonably put on notice that appellant’s medical 

condition was work related within 30 days of January 25, 1989, the day he was terminated from 

employment. Accordingly, appellant’s claim, which is outside the three-year time limitation 

period, is untimely. 

On appeal, appellant asserts that the original employing establishment did not include the 

record of evidence of all the reported facts and documentation of his claim. As noted above, 

however, it is the claimant’s burden to file a claim within three years and not that of the 

employing establishment.12 Appellant did not establish that he filed his claim within three years 

of his last date of employment with the employing establishment, nor has he established that his 

supervisor had actual knowledge of his allegations that his emotional condition was work related 

within 30 days of the date of injury. Therefore, the Board finds that his claim was not timely 

filed within the three-year time limitation under section 8122 of FECA. 

 10 See J.S., Docket No. 13-252 (issued March 27, 2013). 

11 See A.T., Docket No. 13-611 (issued March 5, 2014); David R. Morey, 55 ECAB 642 (2004). 

12 Supra note 9. 
6

LEGAL PRECEDENT -- ISSUE 2 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation.13 OWCP’s regulations provide that OWCP may 

review an award for or against compensation at any time on its own motion or upon application. 

The employee shall exercise his or her right through a request to the district office.14

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted 

a specific point of law; (2) advances a relevant legal argument not previously considered by 

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.15 

A request for reconsideration must also be submitted within one year of the date of the 

OWCP decision for which review is sought.16 A timely request for reconsideration may be 

granted if OWCP determines that the employee has presented evidence or provided an argument 

that meets at least one of the requirements for reconsideration. If OWCP chooses to grant 

reconsideration, it reopens and reviews the case on its merits.17 If the request is timely but fails 

to meet at least one of the requirements for reconsideration, OWCP will deny the request for 

reconsideration without reopening the case for review on the merits.18

ANALYSIS -- ISSUE 2 

Following the October 28, 2013 decision denying his claim, appellant submitted a request 

for reconsideration that was received by OWCP on November 18, 2013. He reported that the 

employing establishment or its internal claims insurance company paid his hospitalization 

treatment for paranoid schizophrenia. No additional evidence was received. The Board finds 

that appellant did not submit any evidence sufficient to require reopening of his case for merit 

review. 

Appellant did not submit any evidence along with his request for reconsideration to show 

that OWCP erroneously applied or interpreted a specific point of law, or did he advance a 

relevant legal argument not previously considered by OWCP. Because he did not meet any of 

the necessary requirements, he is not entitled to further merit review. Appellant’s allegation that 

 13 5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 

372 (2008). 

14 20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730 

(issued March 16, 2009). 

15 20 C.F.R. § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008). 

16 Id. at § 10.607(a). 

17 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007). 

18 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010). 
7

his hospitalization was paid for does not establish that he filed a timely claim for compensation 

or that his supervisor had notice of a work-related medical condition. 

The Board finds that appellant failed to submit relevant and pertinent new evidence, a 

relevant legal argument not previously considered by OWCP or evidence or argument which 

shows that OWCP erroneously applied or interpreted a specific point of law. Therefore, OWCP 

properly refused to reopen his case for further consideration of the merits of his claim under 5 

U.S.C. § 8128. 

CONCLUSION 

The Board finds that appellant’s claim is barred by the applicable time limitation 

provisions of FECA. The Board also finds that OWCP properly denied appellant’s request for 

reconsideration pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the December 11 and October 28, 2013 decisions 

of the Office of Workers’ Compensation Programs are affirmed. 

Issued: November 6, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board