United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.L., Appellant 

and 

DEPARTMENT OF ENERGY, NATIONAL 

NUCLEAR SECURITY ADMINISTRATION, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 16-0854 

Issued: August 24, 2016 

Appearances: Case Submitted on the Record

Stephen Domenic Scavuzzo, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 13, 2016 appellant, through counsel, filed a timely appeal of a September 15, 

2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction to consider the merits of this case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e) (2014). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. 

An attorney’s or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, 

subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292 (2006). Demands for 

payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for 

investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant timely filed an occupational disease claim for 

compensation under 5 U.S.C. § 8122(a). 

On appeal appellant’s counsel contends that OWCP failed to follow the Board’s 

instructions as it failed to review the merits of the claim. 

FACTUAL HISTORY 

This case has previously been before the Board. In a May 18, 2015 decision, the Board 

found that OWCP had improperly denied appellant’s request for reconsideration under 5 U.S.C. 

§ 8128(a).3

 The Board set aside the May 24, 2014 OWCP decision denying reconsideration and 

remanded the case for OWCP to conduct a merit review of the case. The facts and circumstances 

of the case as set forth in the Board’s prior decisions are hereby incorporated by reference. The 

relevant facts from the prior appeal are set forth below.

On November 7, 2012 appellant, then a 48-year-old budget analyst, filed an occupational 

disease claim (Form CA-2) alleging that on May 4, 2009 he first became aware of his 

nonischemic cardiomyopathy and lymphoma condition. He noted that he also became aware that 

the condition was due to his work on this date. On the back of the form, appellant’s supervisor 

stated that appellant had abandoned his position and was removed from his position on April 29, 

2012 due to inability to perform his work duties. 

In statement dated November 7, 2012, appellant related that, as a budget analyst, his job 

required that funding be appropriately aligned to field and site locations. It also required that he 

meet deadlines on requests for financial data. Appellant claimed that this caused considerable 

stress and pressure. He alleged that working on budgets which were managed under 

congressional continuing resolutions added to stress of his position. While under these 

conditions, appellant was asked by directors and program managers to move or realign funding, 

which further increased his stress level. He also experienced stress from being routinely 

contacted by employees from other departments, who demanded “that their funding be 

obligated.” Appellant related that the constant stress impacted his ability to sleep as he was only 

able to sleep three or four hours a night and woke up exhausted. 

On March 1, 2013 appellant completed OWCP’s questionnaire. He stated that he first 

exhibited symptoms of his condition on May 9, 2009 when he was admitted to the emergency 

room after having difficulty walking from the metro to work and was diagnosed with heart 

failure. In August 2010 a defibrillator was implanted in appellant’s chest. During the next two 

years following the implantation of the defibrillator he continued experiencing his heart racing, 

chest tightness and difficulty breathing at work. On November 28, 2011 the symptoms 

culminated in a diagnosis of decompensated congestive heart failure. Appellant alleged that his 

heart condition was aggravated by the performance of his duties, stressful work events as well as 

worrying about his work. He noted his disagreement with OWCP’s statement that his claim was 

 3

 Docket No. 14-1904 (issued May 18, 2015). 
3

untimely as he continued to experience heart problems while working and was not aware of the 

connection to his employment until his second cardiac catheterization on December 8, 2011.4 

On March 5, 2013 OWCP received a March 28, 2012 removal letter from the employing 

establishment. It noted that appellant had not performed the duties of his position since 

December 11, 2011 and that his treating physician, on a Family and Medical Leave Act request 

form, indicated that he was disabled due to medical and emotional stress and due to his medical 

conditions. Based on his inability to perform the duties of his position, the employing 

establishment removed him from his position in order to promote the efficiency of the 

organization. 

In an October 2, 2012 claim (Form CA-7) appellant claimed wage-loss compensation for 

the period December 12, 2011 and continuing. On the form he noted the date of his injury as 

November 28, 2011 and his last workday as April 29, 2012. 

In a February 8, 2014 statement, appellant related that on his original CA-2 form he had 

incorrectly identified the date when he realized his employment had aggravated or caused his 

illness. He stated that it was not until Dr. David Pearle told him that he was disabled from 

performing the duties of his job on December 8, 2011 that he became aware of the causal 

connection between his condition and his employment. Lastly, appellant noted that he would 

have quit his job if he had been informed in May 2009 by Dr. Pearle that his work exacerbated or 

contributed to his diagnosed heart condition. 

On February 11, 2014 OWCP received a corrected CA-2 form with a revised date of 

December 6, 2011 and appellant’s February 8, 2014 statement explaining that he had incorrectly 

identified the date on his original CA-2 regarding when he first realized his employment had 

caused or aggravated his illness. 

By decision dated September 15, 2015, OWCP denied appellant’s claim on the basis that 

he failed to timely file his occupational disease claim. 

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.5

 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.6

 

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. Such awareness is competent to start the limitation 

 4

 The record reflects that this procedure actually took place on December 6, 2011. 

5 C.D., 58 ECAB 146 (2006); David R. Morey, 55 ECAB 642 ( 2004); Mitchell Murray, 53 ECAB 601 (2002). 

6 W.L., 59 ECAB 362 (2008); Gerald A. Preston, 57 ECAB 270 (2005); Laura L. Harrison, 52 ECAB 

515 (2001). 
4

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.7 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

 Section 

8122(b) of FECA 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.9 The 

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

employing establishment.10

ANALYSIS 

The Board finds that appellant has established that he filed a timely claim for 

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

In his notice of occupational disease on November 7, 2012, appellant advised that he 

became aware of his condition and its relation to his federal employment on May 4, 2009. 

However, in subsequent statements and claims for wage-loss compensation he notes the date of 

November 28, 2011 as the date he first became aware of the connection between his heart 

condition and his employment. In subsequent statements, a corrected CA-2 form and CA-7 

forms, appellant reported either November 28 or December 8, 2011 as the date he first became 

aware of the connection between his heart condition and his work. He also stated that he 

continued to be exposed to the duties he alleged aggravated his condition until he stopped work. 

The employing establishment noted that appellant’s last work date was December 11, 2011 and 

that he was removed from his position on April 29, 2012 due to his inability to perform his work 

duties. Although the date appellant initially provided on his CA-2 as the date of his injury was 

more than three years later than the date he filed the claim, he continued his work as a budget 

analyst until stopping work on December 11, 2011. Appellant claimed that the performance of 

his duties as a budget analyst, worrying about his work, and stressful work events duties 

aggravated his heart condition. 

OWCP found the claim untimely under 5 U.S.C. § 8122(a) because appellant initially 

indicated that he first was aware that his heart condition had been aggravated by his employment 

duties on May 4, 2009 and did not file a claim until November 17, 2012. It, however, failed to 

acknowledge that his claim is an occupational disease claim based on continuing exposure to the 

identified work factors. The time limitation does not begin to run until appellant is no longer 

exposed to the identified factors alleged to have contributed to an employment injury.11 As the 

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

8 Id. 

9

 5 U.S.C. § 8122(b). 

10 Gerald A. Preston, 57 ECAB 270 (2005); Debra Young Bruce, 52 ECAB 315 (2001). 

11 James W. Beavers, 57 ECAB 254 (2005).Larry E. Young, 52 ECAB 264 (2001); Linda J. Reeves, 48 ECAB 

373 (1997). 
5

Board has held, “if an employee continues to be exposed to injurious working conditions, the 

time limitation begins to run on the last date of this exposure.”12 The date of last exposure in the 

current case was December 11, 2011, the date appellant last worked for the employing 

establishment. Appellant’s claim was therefore timely filed under 5 U.S.C. § 8122(a). 

Because appellant has filed a timely claim for compensation, the case is remanded to 

OWCP to further develop and adjudicate the merits of the claim. Following any other 

development that it deems necessary, OWCP shall issue a de novo decision in the case. 

CONCLUSION 

The Board finds that appellant timely filed an occupational disease claim for 

compensation under 5 U.S.C. § 8122(a). 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated September 15, 2015 is reversed and the case is remanded to 

OWCP for further proceedings consistent with this decision and order. 

Issued: August 24, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 12 R.A., Docket No. 16-0090 (issued March 21, 2016); id.