United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.S., claiming as widow of M.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

BAY PINES VETERANS MEDICAL CENTER, 

Bay Pines, FL, Employer 

__________________________________________ 

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Docket No. 14-930 

Issued: February 25, 2015 

Appearances: Case Submitted on the Record

Capp P. Taylor, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On March 14, 2014 appellant, through her attorney, filed a timely appeal from a 

December 30, 2013 merit 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 has jurisdiction over the merits of the case. 

ISSUE 

The issue is whether appellant filed a timely claim for death benefits in accordance with 

5 U.S.C. § 8122. If so, whether the employee’s June 26, 2007 death was causally related to his 

federal employment. 

On appeal appellant’s attorney asserts that the human instincts doctrine is applicable in 

this case because the employee was denied the best means of survival, an emergency room that 

was less than 200 feet away when he had a cardiac arrest at work on June 26, 2007. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

Appellant, widow of the deceased employee, filed a claim for death benefits on 

December 15, 2011.2

 The employee, then a 51-year-old quality systems service computer 

assistant, suffered a heart attack at work on June 26, 2007. A Pinellas County emergency 

medical services (EMS) patient care report indicated that the employee was found on the floor in 

cardiac arrest and cardiopulmonary resuscitation (CPR) was in progress.3

 The death certificate 

indicated that the cause of death was acute coronary syndrome. An unidentified note of clinical 

death indicated that death was pronounced on June 26, 2007 at 9:41 by a Dr.”K” whose name is 

illegible. 

In letters dated August 20, 2012, OWCP asked that appellant and the employing 

establishment respond to the claim. Appellant submitted a U.S. District Court order dated 

June 10, 2011. This indicated that she had filed a claim for wrongful death under the Federal 

Tort Claims Act. The order stated that there was a substantial question as to whether the 

employee was covered by FECA and stayed the case for exhaustion of all administrative 

procedures for remedy under FECA. 

Heather M. Nichol, a benefits specialist with the employing establishment, telephoned 

OWCP on September 10, 2012. She indicated that the employee had a massive heart attack at 

work, and it was determined that he should be transferred to St. Petersburg General Hospital 

(SPGH), rather than being treated at his place of work, a Veterans Administration (VA) hospital, 

because he was not a veteran. Ms. Nichol indicated that the widow was receiving Office of 

Personnel Management (OPM) benefits and maintained that the claim was untimely as the 

employee’s death occurred five years previously. 

In letters dated March 12, 2013, OWCP asked appellant’s attorney to furnish medical 

evidence that established a causal connection between the employee’s death and the employing 

establishment’s alleged failure to respond to the health emergency. It also asked the employing 

establishment to provide a time-line of the employee’s activity from the time he arrived at work 

on June 26, 2007 and a detailed time-line of the events that occurred following the heart attack, 

including all efforts to provide medical aid. The employing establishment was asked to review 

the District Court order and to describe emergency procedures that were in place, and indicate 

whether an investigation had been done. 

On March 25, 2013 Ms. Nichol stated that at approximately 9:00 a.m. on June 26, 2007, 

two of the employee’s coworkers were walking past the employee’s office when they heard a 

loud gasp. They entered his office and found him leaning back in his chair, unresponsive and 

immediately called for assistance. They moved him to the floor, and initiated mouth-to-mouth 

resuscitation and CPR. Ms. Nichol noted that the employee’s office was primarily staffed by 

nurses, and that three registered nurses rushed to provide assistance and continued resuscitation 

efforts. A fourth registered nurse contacted 411 to have EMS dispatched, and a code blue was 

 2

 The claim was received by OWCP on July 12, 2012. A copy of the certificate of marriage, issued by the State 

of Maryland, indicates that appellant and the employee married on May 21, 1983. 

3

 The headings for this report are illegible. 
3

initialed. Two physicians, who were alerted by the code blue, assisted in the administration of 

CPR until EMS arrived. Ms. Nichol indicated that, as a nonveteran, the employee was not 

eligible to be admitted to a VA facility, so upon the arrival of EMS, his care was transferred to 

the paramedics, and he was transported to SPGH, located 3.7 miles from the employing 

establishment. She maintained that the VA met its obligations under the human instincts 

doctrine because emergency care was rendered by four registered nurses and two physicians and 

further asserted that the claim was untimely and that the cardiac arrest was not caused by 

employment duties. 

By decision dated April 12, 2013, OWCP denied the claim on the grounds that it was 

untimely filed. Appellant, through her attorney, timely requested a hearing. Counsel asserted 

that the human instincts doctrine was applicable, and that the care the employee received or did 

not receive at the employing establishment contributed to his death. Dr. W. Brent Young, a 

family physician, provided a September 4, 2013 report in which he indicated that he had 

reviewed materials provided by the attorney and concluded that the decision made to transport 

the employee to SPGH with a cardiac arrest in play, instead of allowing a more timely 

intervention at the employing establishment, contributed to the failed CPR effort. 

At the hearing held on September 12, 2013 appellant’s attorney asserted that the claim 

was timely and argued that the human instincts doctrine was applicable and that the opinion of 

Dr. Young supported this conclusion. 

In undated correspondence, Ms. Nichol asserted that the care given the employee went 

well above and beyond the human instincts doctrine because he was cared for by multiple nurses 

and physicians prior to the transfer of his care. 

In a December 30, 2013 decision, an OWCP hearing representative found the claim was 

timely and affirmed the April 12, 2013 decision as modified. She noted that, under the human 

instincts doctrine, causal connection could only be established if the employer failed to make 

reasonable efforts to procure medical care and in this case the care given the employee was 

reasonable as he was assisted by registered nurses and physicians prior to being transported. 

LEGAL PRECEDENT 

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

precedes any determination on the merits of the claim.4 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.5

 In the case of 

death due to a latent disability, the time for filing a death claim does not begin to run until the 

employee has died and his survivors are aware of or by the exercise of reasonable diligence 

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

5

 5 U.S.C. § 8122(a); E.B., 58 ECAB 642 (2007). 
4

should have been aware of the causal relationship of the employee’s death to factors of his 

employment.6 

The three-year limit on filing a claim for compensation does not apply in the following 

limited circumstances: (1) the employee’s direct supervisor had actual knowledge that created 

reasonable notice of an on-the-job injury or death within 30 days;7

 (2) an employee or survivor 

gave formal written notice within 30 days of becoming aware that the injury or death was 

causally related to the federal employment;8

 (3) the employee filed a timely disability claim for a 

work-related injury or disability and the employee’s death is based on the same injury;9 and 

(4) the claimant is under 21 years old, the claimant is incompetent and has no legal 

representative, or the claimant is prevented from giving notice by exceptional circumstances.10 

Lack of awareness of possible entitlement, lack of information or ignorance of the law or one’s 

rights and obligations under it do not constitute exceptional circumstances that excuse a failure to 

file a timely claim.11 Section 8122(d)(3) of FECA 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.”12

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.13 Actual knowledge and written notice of injury 

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

compensation.14 For actual knowledge of a supervisor to be regarded as timely filing, a claimant 

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.15 

 6 Id. at § 8122(b); E.B., id. 

7 Supra note 7; Federal (FECA) Procedure Manual, Part 2 -- Claims, Death Claims, Chapter 2.700.5.b 

(April 1994). 

8

 5 U.S.C. § 8122(a), (b); Federal (FECA) Procedure Manual, id. at Chapter 2.700.5.b(1). 

9 Id. at § 8122(c). 

10 Id. at § 8122(d). 

11 E.B., supra note 6. 

12 5 U.S.C. § 8122(d)(3). 

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

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

15 5 U.S.C. § 8122(b); Duet Brinson, 52 ECAB 168 (2000). 
5

ANALYSIS 

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

provisions of FECA. 

Appellant, the widow of the employee who died on June 26, 2007, filed the instant claim 

for death benefits on December 15, 2011. The time to file a claim began to run on 

June 26, 2007, the date of the employee’s death.16 

There is no medical or factual evidence of record to indicate that either appellant or the 

employee knew his condition was causally related to factors of his federal employment prior to 

his death on June 26, 2007. Appellant has filed a wrongful death claim in U.S. District Court, 

and the record supports that, by order dated June 20, 2011, the court found there was a 

substantial question as to whether the employee was covered by FECA and stayed the case for 

exhaustion of all administrative procedures for remedy under FECA. A district court filing and 

subsequent stay, however, does not excuse appellant’s failure to timely file a claim under FECA. 

The three-year time limitation began to run on June 26, 2007. As appellant filed her claim for 

death benefits on December 15, 2011, her claim was not timely filed within the three-year time 

limitation.17

Though appellant has not met the burden of proving that she filed within the three-year 

time limitation, her claim could be considered timely if she were to meet any of the statutory 

exceptions. The Board finds, however, that an exception has not been established by the 

evidence of record. There is no evidence that the employee’s immediate supervisor had actual 

knowledge that the employee’s death was related to his employment within 30 days. There is 

also no evidence that appellant, or the employee, provided written notice to the employing 

establishment within 30 days of becoming aware of the possibility that the employee’s death or 

illness was causally related to his employment. The record does not indicate that the employee 

filed a disability claim under FECA for a cardiac condition prior to his death on June 26, 2007. 

Additionally, none of the exceptions relating to a claimant’s ability to file a claim apply 

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

has not provided evidence of an exceptional circumstance that would excuse her failure to timely 

file the claim. The Board has held that unawareness of possible entitlement, lack of access to 

information, and ignorance of the law or one’s obligations under FECA does not constitute 

exceptional circumstances that could excuse a failure to file a timely claim.18 

Section 8122(d)(3) of FECA 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.” Appellant has not 

established that she could not file a timely claim due to exceptional circumstances as that term is 

 16 Supra note 9. 

17 5 U.S.C. § 8122. 

18 Ralph L. Dill, 57 ECAB 248 (2005). 
6

used in section 8122(d)(3) of FECA. The Board finds that appellant’s failure to timely file her 

claim within three years of the employee’s death on June 26, 2007 precludes her from seeking 

compensation under FECA.19 

As the Board has found that appellant’s claim was not timely filed, it need not address 

additional arguments raised on appeal. 

CONCLUSION 

The Board finds that appellant did not file a timely claim for death benefits in accordance 

with 5 U.S.C. § 8122.20

ORDER 

IT IS HEREBY ORDERED THAT the December 30, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed as modified to indicate that appellant’s claim was 

not timely filed. 

Issued: February 25, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 19 E.B., supra note 6. 

20 Michael E. Groom, Alternate Judge, participated in the preparation of this decision but was no longer a member 

of the Board effective December 27, 2014.