United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.N., Appellant 

and 

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer 

__________________________________________ 

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Docket No. 14-1599 

Issued: November 18, 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 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On July 15, 2014 appellant filed a timely appeal from a February 6, 2014 merit decision 

of the Office of Workers’ Compensation Programs (OWCP) denying his claim as untimely and a 

May 14, 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 and over the May 14, 2014 decision. 

ISSUES 

The issues are: (1) whether appellant timely filed his claim under FECA; and (2) 

whether OWCP properly denied his request to reopen his case for further merit review under 5 

U.S.C. § 8128(a). 

FACTUAL HISTORY 

On November 12, 2013 appellant, then an 83-year-old former marine pipefitter, filed an 

occupational disease claim alleging that he sustained pleural thickening of the lungs, a decrease 

 1

 5 U.S.C. § 8101 et seq. 
2

in lung volume and abnormal spots in his lungs due to asbestos exposure in the course of his 

federal employment. He first became aware of his condition and attributed it to his federal 

employment on April 15, 2013. Appellant related that he worked with pipes covered in asbestos 

beginning in June 1951 and continuing until April 26, 1985, the date he retired. 

A computerized tomography (CT) scan obtained on April 22, 2013 revealed pleural 

plaques consistent with exposure to asbestos and a consolidation on the left lower lobe most 

likely caused by rounded atelectasis. An x-ray obtained April 22, 2013 showed an “apparent 

progressive volume loss in the left hemithorax in this patient with a history of asbestos exposure” 

and new areas of pleural thickening as compared to an x-ray of May 17, 2007. A CT scan 

obtained as a follow up to the April 22, 2013 study revealed stable pleural plaques consistent 

with asbestos exposure, a nodule at the base of the right lung and a mass like density on the left 

lower lobe most likely atelectasis but possibly a neoplasm. 

The record contains pulmonary function studies dated April 3, 1978, April 9, 1979, 

April 6, 1981, April 2, 1982, April 18, 1983 and April 10, 1985. Chest x-rays dated 1966, 1967, 

1970 and 1973 were interpreted as normal and chest x-rays obtained on 1979 and 1981 were 

interpreted as normal except for mild scoliosis. 

An October 4, 1985 report obtained as part of the employing establishment’s asbestos 

medical surveillance program found that appellant had no clubbing, crackles or wheezing. The 

form provided the results of a pulmonary function study. 

In a report dated August 12, 2013, Dr. Michael Puruckherr, a Board-certified internist 

and pulmonologist, related that diagnostic studies revealed a left lung mass which was likely 

rounded atelectasis and changes indicative of asbestos exposure. 

On December 5, 2013 the employing establishment provided asbestos exposure data from 

appellant’s work area from 1993 to 2004. It was not required to collect data during the time of 

his employment. 

By decision dated February 6, 2014, OWCP denied appellant’s claim as untimely under 5 

U.S.C. § 8122. It determined that he did not file his claim within three years of the day of injury 

or demonstrated that his supervisor had actual knowledge of the injury within 30 days. OWCP 

determined that pulmonary function studies from 1979 to 1985 showed that appellant had actual 

knowledge of his condition prior to his retirement in 1985. 

In a report dated June 6, 2013, received by OWCP on March 4, 2014, Dr. Puruckherr 

evaluated appellant for symptoms of shortness of breath, an abnormal CT scan and a history of 

asbestos exposure. He noted that appellant had a long history of asbestos exposure and exposure 

to dust and fumes during the course of his employment. Dr. Puruckherr diagnosed asthma, a 

history of asbestos exposure, a pulmonary mass, dyspnea and an abnormal CT scan. He related 

that the CT scan showed “clearly significant abnormalities from his asbestos exposure....” 

 
3

On March 4, 2014 appellant requested reconsideration.2 In a statement dated 

February 27, 2014, he questioned why OWCP believed that pulmonary function studies “could 

predict lung deterioration 25 years in advance and that I should have been aware of that 

condition as a preexisting condition. [OWCP] also determined that I should have filed a claim 

within 3 years of my retirement, approximately 25 years before the condition was known to 

actually exist. This seems to be an odd requirement that is worth disputing.” 

By decision dated May 14, 2014, OWCP denied appellant’s request for reconsideration 

after finding that he did not submit evidence or raised an argument sufficient to warrant 

reopening his case for further merit review under section 8128. 

On appeal appellant alleges that OWCP erred in finding that his claim was not timely. 

He asserts that his pulmonary function studies from 1979 to 1985 were normal and that chest xrays showed no disease. Appellant indicates that he knew that he was exposed to asbestos but 

was not aware that it had damaged his lungs until 2013. He noted that he worked as a nuclear 

coordinator from 1973 until his retirement in 1985 during which time he was monitored for 

radiation and asbestos exposure. 

LEGAL PRECEDENT 

Section 8122(a) of FECA3 provides that an original claim for compensation for disability 

or death must be filed within three years after the injury or death.4

 Section 8122(b) provides 

that, in latent disability cases, the time limitation does not begin to run until the claimant is 

aware, or be the exercise of reasonable diligence should have been aware, of the causal 

relationship between the employment and the compensable disability.5 The Board has held that, 

if an employee continues to be exposed to injurious working conditions after such awareness, the 

time limitation begins to run on the last date of this exposure.6 Even if a claim as not timely filed 

within the three-year period of limitation, it would still be regarded as timely under section 

8122(a)(1) if the immediate superior had actual knowledge of his alleged employment-related 

injury within 30 days or written notice of the injury was provided within 30 days pursuant to 

section 8119.7 The knowledge must be such as to put the immediate superior reasonably on 

notice of an on-the-job injury or death.8

 The Board has indicated that an employee need only be 

 2

 In a report dated August 26, 2013, Dr. Michael S. McManus, who specializes in occupational medicine, 

diagnosed a history of asbestos exposure, pleural plaque, dyspnea on exertion, a pulmonary mass and a pulmonary 

nodule. In a report dated February 10, 2014, he related that he initially evaluated appellant for a lung condition 

related to asbestos on August 23, 2013. Dr. McManus noted that appellant had asbestos exposure installing and 

removing piping from 1951 through 1959 without protection. He indicated that further diagnostic testing revealed 

“asbestos-related lung disease or calcified pleural plaque with a lung mass probably representing rounded 

atelectasis.” Dr. McManus diagnosed occupational asbestos exposure with asbestos-related pleural disease and 

dyspnea on exertion. 

3

 5 U.S.C. § 8101 et seq.

4 Id. at § 8122(a). 

5 Id. at § 8122(b). 

6 See Linda J. Reeves, 48 ECAB 373 (1997). 

7

 5 U.S.C. §§ 8122(a)(1); 8122(a)(2); see also Larry E. Young, 52 ECAB 264 (2001). 

8 Willis E. Bailey, 49 ECAB 509 (1998). 
4

aware of a possible relationship between his “condition” and his employment to commence the 

running of the applicable statute of limitations.9 

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 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.10 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 federal employment, the time 

limitation begins to run on the date of the last exposure to the implicated factors.11 The 

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

employing establishment.12 

ANALYSIS 

On November 12, 2013 appellant filed a claim alleging that he sustained a lung condition 

causally related to his exposure to asbestos from June 1951 until April 26, 1985, the date he 

retired. He first became aware of his condition and attributed it to his federal employment on 

April 15, 2013. As appellant continued to be exposed to the alleged employment factors until the 

date of his retirement, the time limitation for filing the claim would normally begin to run on the 

date of his last exposure on April 26, 1985.13 In cases of latent disability, however, the time for 

filing a claim does not begin to run until the claimant is aware or by exercise of reasonable 

diligence should have been aware of the causal relationship between his condition and his 

employment.14 

OWCP found that appellant should reasonably have been aware of his condition and its 

relationship to his employment because the employing establishment obtained pulmonary 

function studies from 1978 to 1985. The pulmonary function studies, however, do not 

demonstrate any determination of impairment or diagnosis of any lung condition due to his 

federal employment. In Virginia D. King (Charles B. King), the Board found that the possibility 

of asbestosis was not sufficient to begin the time limitation period.15 Rather, the time limitation 

period began to run only after the claimant receives confirmation of the diagnosis of asbestosis. 

 9 Edward C. Horner, 43 ECAB 834, 840 (1992). 

10 See Larry E. Young, 52 ECAB 264 (2001). 

11 Id. 

12 See Debra Young Bruce, 52 ECAB 315 (2001). 

13 See Larry E. Young, supra note 10. 

14 5 U.S.C. § 8122(b); see Luther Williams, Jr., 52 ECAB 360 (2001). 

15 57 ECAB 143 (2005). 
5

In a report dated June 6, 2013, Dr. Puruckherr diagnosed asthma, a history of asbestos 

exposure, a pulmonary mass, dyspnea and an abnormal CT scan. He opined that a CT scan 

revealed substantial abnormalities due to appellant’s asbestos exposure. This is the first medical 

report of record sufficient to provide appellant notice that he had a condition due to asbestos 

exposure that may be related to his federal employment. Appellant filed his claim on 

November 12, 2013, within the three-year time limitation for filing a claim which commenced on 

the date that he identified his awareness of his condition and its relationship to employment. The 

Board finds that he timely filed a claim based on the evidence of record. 

CONCLUSION 

The Board finds that appellant timely filed his November 12, 2013 occupational disease 

claim.16

ORDER 

IT IS HEREBY ORDERED THAT the February 6, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed. The case is remanded for further action 

consistent with this decision. 

Issued: November 18, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 16 In view of the Board’s disposition of the timeliness issue, the issue of whether OWCP properly denied 

appellant’s request for reconsideration, which is the subject of the May 14, 2014 decision, is moot.