United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.M., Appellant

and

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer

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Docket No. 16-1701

Issued: October 3, 2017

Appearances: Case Submitted on the Record

John Eiler Goodwin, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 23, 2016 appellant, through counsel, filed a timely appeal from a May 16, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to 

the Federal Employees’ Compensation Act3(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). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney 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. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 Appellant, through counsel, filed a timely request for oral argument. After exercising its discretion, by order 

dated April 19, 2017, the Board denied his request finding that his arguments could be adequately addressed in a 

decision based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 16-1701 

(issued April 19, 2017).

3

5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant filed a timely claim for compensation under 5 U.S.C. 

§ 8122(a). 

On appeal counsel argues that appellant’s claim was timely filed.

FACTUAL HISTORY

On March 11, 2015 appellant filed an occupational disease claim (Form CA-2) dated 

June 27, 2014. He, then a retired 64-year-old physical science technologist, alleged that he had 

developed chronic obstructive pulmonary disease (COPD) while working on ships that were 

being decommissioned.4 Appellant noted that he first became aware of his claimed condition 

and realized that it was causally related to his federal employment in April 2010. On the reverse 

side of the claim form, the employing establishment noted that he had retired, effective July 1, 

2011, and that it had received the claim form on March 4, 2015 via facsimile from OWCP.5

In support of his occupational disease claim appellant submitted Notifications of 

Personnel Action (SF-50 forms) dated January 3, 2010 and July 1, 2011. The January 3, 2010 

SF-50 noted a general pay adjustment while the July 1, 2011 SF-50 noted appellant’s retirement 

effective that date.

By letter dated March 17, 2015, OWCP requested additional information from appellant 

noting that the evidence submitted was insufficient to establish that his claim had been timely 

filed. It also informed him that the evidence of record was insufficient to establish that he 

sustained an injury in the performance of duty. OWCP advised appellant regarding the factual 

and medical evidence required and afforded him 30 days to provide the requested information. 

OWCP thereafter received additional evidence. Appellant, in a statement dated April 13, 

2015, related that he had been diagnosed with COPD in April 2010. He noted that he was 

exposed to paint and welding fumes; dust from multiple sources; vapor and fumes from jet fuel, 

engines, and diesel engines; and particulates from insulation or nuclear piping being installed or 

ripped out.

In a report dated April 13, 2015 and signed on April 15, 2015, Dr. Robert Caulkins, a 

treating Board-certified family medicine physician, noted appellant’s history of COPD, lengthy 

history of cigarette smoking, and extensive exposure to multiple pulmonary irritants over many 

years. He noted that appellant quit smoking in April 2010. Dr. Caulkins opined that appellant’s 

exposure to pulmonary irritants at work contributed to the development of his COPD. 

 

4 Appellant has several prior claims with OWCP, including an occupational disease claim filed on March 10, 

2015, assigned OWCP File No. xxxxxx535. 

5 There is no evidence of record, however, which supports that OWCP faxed the claim form to the employing 

establishment on March 4, 2011. The record reflects that the claim form was first received by OWCP on 

March 11, 2015. 
3

In a statement dated April 15, 2015, appellant referenced Dr. Caulkins’ report in support

of his claim that his COPD was employment related. 

In an April 16, 2015 report, Dr. Griffith M. Blackmon, a treating physician Boardcertified in critical care medicine, occupational medicine, pulmonary disease, sleep medicine, 

and internal medicine, diagnosed COPD and noted a 42-year smoking history.

On May 1, 2015 OWCP received an undated letter from Dr. Caulkins concerning 

appellant’s occupational disease claim. Dr. Caulkins noted that over many years appellant was 

exposed at work to multiple irritants and chemicals, which included radiation exposure, welding, 

asbestos, paint, jet fuel, and vaporous fumes. He noted a February 22, 2012 pulmonary 

evaluation showed a compromised respiratory status. According to Dr. Caulkins, it was 

reasonable to assume appellant’s exposure at work over many years was a contributing cause to 

his respiratory condition. 

On May 18, 2015 OWCP received employee health unit records for the period May 29, 

1985 to January 28, 2011. The records noted a smoking history of at least one pack per day, that 

appellant had quit smoking in 2010, occupational exposure to ionizing radiation, no documented 

lung problem, and no difficulty breathing. A January 28, 2011 form noted that no medical 

condition was detected from which continued occupational exposure would place appellant at an 

increased risk. The form also advised appellant of the increased risk of lung cancer attributable 

to the combined impact of asbestos exposure and smoking. A January 28, 2011 employee health 

unit record noted that appellant had stopped smoking and had lung disease (the lung diseases 

listed were COPD, bronchitis, pneumonitis, and emphysema). The record also noted that 

appellant had difficulty breathing when climbing stairs. Appellant checked “no” to the question 

of whether he had shortness of breath while performing his work duties.

By decision dated June 5, 2015, OWCP denied appellant’s claim, finding that the 

evidence of record failed to demonstrate that his claim was timely filed within 3 years of the date 

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

injury. The decision noted that the date of injury was April 1, 2010 and that the claim was 

received on March 11, 2015.

On June 25, 2015 OWCP received appellant’s request for an oral hearing before an 

OWCP hearing representative. A hearing was held on December 2, 2015 where appellant was 

represented by counsel. Appellant testified that he mailed two claims with one being mailed by 

Express Mail on June 27, 2014 and the second being mailed by regular mail on June 28, 2014. 

He testified that the postal employee informed him that his June 27, 2014 claim form would be 

received by OWCP on July 1, 2014. Appellant stated that while he was “a little confused myself 

because it was so long ago,” he believed that the current claim was sent certified since he wanted 

to make sure it arrived within the applicable time limits. Counsel stated that they would be 

submitting the Express Mail receipt. He asserted that OWCP ignored the fact that appellant’s

last date of exposure was July 1, 2011 so that the filing of the claim was timely as OWCP 

received the claim form on June 30, 2014.

By decision dated January 28, 2016, OWCP’s hearing representative affirmed the denial 

of appellant’s claim, finding that it was untimely filed. He found that the mail receipt referenced 
4

by counsel during the hearing was not received and that there was no evidence of record to 

support that the claim was filed within three years from the date of last exposure.

On March 16, 2016 appellant requested reconsideration. He noted that he was exposed to 

pulmonary irritants at the employing establishment until he retired on July 1, 2011. Appellant 

also argued that his claim was timely filed as it was delivered to OWCP by June 30, 2014. He

submitted U.S. Postal Service (USPS) tracking receipts indicating that documents were received 

by OWCP on that date. 

By decision dated May 16, 2016, OWCP denied modification of its prior decisions, 

finding that the evidence of record failed to establish that appellant’s occupational disease claim 

was timely filed. It noted that, while the USPS tracking receipts indicated that something was 

received by OWCP on June 30, 2014, without a valid claim number on the documents, there is 

no way of knowing what was sent and what happened to it. As the Form CA-2 of record was 

received by OWCP on March 11, 2015, it was outside the statutory time limit of three years and 

there was no evidence of record establishing that appellant had notified his supervisor of his 

claimed medical condition.

LEGAL PRECEDENT

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 Section 8122(b) provides 

that, in latent disability cases, the time limitation 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.7 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.8 Even if a claim is 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 her alleged employment-related 

injury 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.9 

ANALYSIS

The Board finds that appellant did not file his claim within the applicable time limitations

of FECA. 

Although appellant’s Form CA-2 was dated June 27, 2014, OWCP’s procedures provide

that the date the claim is filed is the “date of receipt of a claim by OWCP or the employing 

 

6

5 U.S.C. § 8122(a).

7

Id. at § 8122(b).

8

J.P., 59 ECAB 846 (2003).

9

Id.
5

establishment, rather than the date the claim was completed.”

10

 The record reflects that 

appellant’s Form CA-2 was first received by the employing establishment on March 4, 2015 and 

by OWCP on March 11, 2015. While appellant has submitted USPS tracking receipts showing

that OWCP did receive mail from appellant on June 30, 2014, it cannot be determined that the 

claim form for the current case was indeed the article of mail received as the mail received did 

not contain a valid OWCP file number. 

Appellant first became aware of his COPD and its relationship to his federal employment 

in April 2010. The time limitation for filing his occupational disease claim began to run on 

July 1, 2011, the effective date of his retirement and date of last exposure.

11

 As his Form CA-2 

was not received by OWCP until March 11, 2015, his claim was untimely filed outside of the 

three-year statutory limitation of FECA.

12

 

Additionally, there is no evidence of record establishing that appellant’s supervisor or the 

employing establishment had knowledge of his occupational disease claim within 30 days, or 

that he provided written notice of injury within 30 days of the date of last exposure.

13

 Employee 

health records note that appellant had a smoking history of a pack a day until quitting in 2010. 

The most recent health record form dated and signed by appellant on January 28, 2011 reported 

that no medical condition was detected for which continued occupational exposure would place 

him at an increased risk. The January 28, 2011 health record noted that a lung disease had been 

diagnosed and that appellant had difficulty breathing when climbing stairs, but appellant checked 

“no” to the question of whether he had shortness of breath while performing his work duties. 

There is no evidence of record establishing that appellant attributed his COPD at the time to his 

employment or that a supervisor or the employing establishment was aware that he attributed this 

condition to his employment. Thus, the Board finds that appellant failed to meet his burden of 

proof.

Appellant may submit additional evidence, together with a written request for 

reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant did not file a timely claim for compensation under 

5 U.S.C. § 8122(a). 

 

10 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.4 (March 1993).

11 See R.V., Docket No. 10-1776 (issued April 1, 2011); James W. Beavers, 57 ECAB 254 (2005).

12 Supra note 7. 

13 Roger W. Robinson, 54 ECAB 846 (2003).
6

ORDER

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

Compensation Programs dated May 16, 2016 is affirmed.

Issued: October 3, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board