United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.G., Appellant

and

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, NATIONAL DISASTER MEDICAL 

SERVICES, Boston, MA, Employer

__________________________________________

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Docket No. 17-1334

Issued: December 18, 2017

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On May 31, 2017 appellant, through counsel, filed a timely appeal from a May 1, 2017 

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 over the merits of the claim. 

 

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

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).

FACTUAL HISTORY

On April 21, 2014 appellant, then a 49-year-old retired paramedic, filed an occupational 

disease claim (Form CA-2), alleging that exposure to airborne liquid and solid toxins while 

working at the World Trade Center (WTC) rescue and recovery site (Ground Zero) during the 

period September 12 through 30, 2001 caused Stage IVB Hodgkin’s lymphoma, diagnosed on 

December 20, 2005, and chronic obstructive pulmonary disease (COPD) with bronchiectasis. He

worked a 20-hour shift on September 12, 2001 and 12-hour shifts from September 13 to 30, 

2001, setting up and staffing medical tents. Appellant asserted that his work area smelled of 

smoke and was covered in a heavy layer of dust. He alleged that he did not have training in how 

to use the respirator provided, increasing his level of exposure.3 After September 30, 2001, 

appellant returned to his regular job in the employing establishment until October 13, 2001 when 

he stopped work due to depression and increased alcohol consumption. 

Appellant also filed a claim for wage-loss compensation (Form CA-7) for the period 

December 20, 2005 to October 9, 2014 and continuing. He noted that he first became aware of 

his condition on December 20, 2005, but did not learn that the disease could be work related 

until October 1, 2013.

In a July 17, 2014 letter, OWCP notified appellant that the evidence was insufficient to 

support that he had provided timely notification of his work injury, to establish a firm diagnosis

of any condition resulting from any employment activity, or to establish how and why specific 

employment activities had caused, contributed to, or aggravated his medical condition. He was 

advised of the type of evidence needed to establish his claim and was asked to complete a twopage development questionnaire regarding his claim. He was afforded 30 days to submit such 

evidence. 

In response, appellant submitted medical evidence, along with responses to the 

questionnaire dated November 4, 2014. In his responses, he noted that in December 2005, when 

he was first diagnosed with Hodgkin’s lymphoma he believed that his lymphoma was due to his 

exposure at Ground Zero and that he asked multiple physicians for an opinion on whether his 

cancer was caused by exposure to Ground Zero, but was told that there was no science 

establishing the connection and they could not make the connection. Appellant contended that 

he was just a layperson and that until a physician could make that connection, he believed that 

any claim he filed would have been denied. He noted that it was not until 2013 when a physician 

agreed with his belief that his lymphoma could have been caused by his presence on 

September 11, 2001 as a responder. 

 

3 Under File No. xxxxxx813, OWCP accepted appellant’s claim for post-traumatic stress disorder (PTSD), 

chronic, and major depressive disorder recurrent, in remission which he had attributed to his September 2001 

experiences at the WTC rescue and recovery site. 
3

Dr. Vincent L. Hennessy, Jr., an attending thoracic surgeon, noted on February 2, 2006 

that routine laboratory tests demonstrated an elevated white count with thrombocytosis. A 

computerized axial tomography (CAT) scan study showed mediastinal lymphadenopathy, 

confirmed in a December 2005 biopsy as Hodgkin’s lymphoma. Dr. Hennessy diagnosed 

“Nonspecific lung disease from inhalation and debris at the time of 9-11.”

By decision dated May 23, 2016, OWCP accepted that appellant was exposed to toxins at 

Ground Zero as alleged from September 12 to 30, 2001. It further found, however, that the 

medical evidence of record failed to establish that the accepted exposures caused or contributed

to the development of Hodgkin’s lymphoma. 

In a June 22, 2016 letter, counsel requested a telephonic hearing before a representative 

of OWCP’s Branch of Hearings and Review.

By decision dated May 1, 2017, an OWCP hearing representative affirmed OWCP’s 

May 23, 2016 decision, finding that the medical evidence of record failed to establish a causal 

connection between the exposure and the diagnosed conditions.

LEGAL PRECEDENT

An employee seeking benefits under FECA4has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an “employee of 

the United States” within the meaning of FECA, that the claim was filed within the applicable 

time limitation, that an injury was sustained while in the performance of duty as alleged, and that 

any disability and/or specific condition for which compensation is claimed are causally related to 

the employment injury.5 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6

Under section 8122(a) of FECA7a claimant has three years to file a claim for 

compensation.8 In a case of occupational disease, the Board has held that 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 or her condition and the employment. Such 

awareness is competent to start the limitation period even if the employee does not know the 

nature of the impairment or whether the ultimate result of such affect would be temporary or 

 

4

Supra note 2.

5

Joe D. Cameron, 41 ECAB 153 (1989).

6

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

7

5 U.S.C. § 8122.

8 Duet Brinson, 52 ECAB 168 (2000); William F. Dorson, 47 ECAB 253, 257 (1995); see 20 C.F.R. § 10.101(b).
4

permanent.9 Where the employee continues in the same employment after such awareness, the 

time limitation begins to run on the date of his or her last exposure to the implicated factors.10

Even if the claim is not filed within the three-year period, it may be regarded as timely 

under section 8122(a)(1) if appellant’s immediate supervisor had actual knowledge of the alleged 

employment-related injury within 30 days such that the immediate superior was put reasonably 

on notice of an on-the-job injury or death.11 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 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.12

ANALYSIS

OWCP determined that the claim was timely filed and ruled on the merits of the claim. 

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

precedes any determination on the merits of the claim.13 The Board may raise the issue on 

appeal even if OWCP did not base its decision on the time limitation provisions of FECA.14 

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 superior 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.”

15

Section 8119 of FECA provides: A notice of injury or death shall--

“(a) be given within 30 days after the injury or death;

 

9 Duet Brinson, id.

10 Larry E. Young, 552 ECAB 264 (2001). 

11 5 U.S.C. § 8122(b); Bennie L. McDonald, 49 ECAB 509, 514 (1998).

12 Id. at 8122(b); Edward Lewis Maslowski, 42 ECAB 839, 846 (1991).

13 See Charles W. Bishop, 6 ECAB 571 (1954).

14 Id.

15 Supra note 2 at 8122(a).
5

“(b) be given to the immediate superior of the employee by personal delivery or 

by depositing it in the mail properly stamped and addressed;

“(c) be in writing;

“(d) state the name and address of the employee;

“(e) state the year, month, day, and hour when and the particular locality where 

the injury or death occurred;

“(f) state the cause and nature of the injury, or, in the case of death, the 

employment factors believed to be the cause; and

“(g) be signed by and contain the address of the individual giving the notice.”

16

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 and 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.17 For actual knowledge of a supervisor to 

be regarded as timely filing, an employee 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-thejob injury.18

The Board finds that appellant did not timely file his occupational disease claim. The 

evidence of record reveals that appellant, a paramedic, alleged that his condition of Hodgkin’s

lymphoma was due to toxic exposures at the WTC rescue and recovery site from September 12 

to 30, 2001. Appellant worked at the Ground Zero site for only that time period. He then 

returned to his regular paramedic position for the employing establishment until October 13, 

2001 at which time he stopped work due to depression and increased alcohol consumption. 

Appellant was diagnosed with post-traumatic stress disorder.19

The time limitation began to run when appellant knew, or reasonably should have known, 

of the causal relationship between a condition and the exposure. There is no evidence in the 

record to suggest that appellant’s supervisor had actual knowledge of the condition or that 

appellant had provided written notice of the injury within 30 days of the exposure. In his

responses to OWCP’s July 2014 development letter, appellant clearly indicated that he was 

unaware of his condition until December 2005, when he was first diagnosed with Hodgkin’s 

lymphoma. He was concerned at that time that his Hodgkin’s lymphoma was a result of the 

exposure at Ground Zero and acknowledged that he had asked multiple physicians for an opinion 

 

16 Supra note 2 at 8119; Larry E. Young, 52 ECAB 264 (2001).

17 Supra note 2 at 8119(b); Delmont L. Thompson, 51 ECAB 155 (1999).

18 Id. at 8122(b); Duet Brinson, 52 ECAB 168 (2000). 

19 Supra note 3.
6

on whether his condition was related to his exposure at Ground Zero. Because appellant was, 

therefore, aware or reasonably should have been aware of potential causal relationship between 

his employment and his diagnosed Hodgkin’s lymphoma in December 2005 when he was first 

diagnosed, he would have had three years from that date, or until December 2008, to have filed a 

claim. 

A medical report from Dr. Hennessy, dated February 2, 2006, reflects a diagnosis of 

“Nonspecific lung disease from inhalation and debris at the time of 9-11.” Certainly, by that 

time, appellant would have been aware that his condition could have been related to his exposure 

at Ground Zero. With such a diagnosis, a reasonable person would have been aware, or 

reasonably should have been aware of possible causal relationship between diagnosed condition 

and toxins at Ground Zero, and the statutory time limitations would have begun to run. In fact, 

appellant acknowledged in his responses to OWCP’s July 2014 development letter that he was 

concerned that his cancer was caused by exposure to toxins at Ground Zero, but that he waited to 

file his claim until he could find a physician who agreed with him. The Board has indicated that 

an employee need only be aware of a possible relationship between his or her condition and his 

or her employment to commence the running of the applicable statute of limitations.20

Even if the time began to run from the date of Dr. Hennessy’s February 2, 2006 report 

wherein he attributed appellant’s Hodgkin’s lymphoma to his federal employment at Ground 

Zero, appellant would have only had until February 2, 2009 to file an occupational disease claim. 

As he did not file his claim until April 21, 2014, it was not filed within the statutory three-year 

time period. There is no provision in FECA tolling the time limitations of the statue while 

appellant searches for a physician who agrees that the diagnosed condition is causally related to 

his employment. In the absence thereof, the general statutory time limitation provisions of 

FECA must be applied and cannot be waived. 

The Board thus finds that appellant’s claim was untimely filed. 

CONCLUSION

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

limitation provisions of FECA. 

 

20 Edward C. Hornor, 43 ECAB 834, 840 (1992).
7

ORDER

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

Compensation Programs dated May 1, 2017 is affirmed, as modified.

21

Issued: December 18, 2017

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

21 Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board 

effective December 11, 2017.