United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.M., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, FEDERAL AIR 

MARSHAL SERVICE, Sunrise, FL, Employer 

__________________________________________ 

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Docket No. 17-0519 

Issued: May 12, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 9, 2017 appellant filed a timely appeal from a November 17, 2016 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 this case.2

ISSUE 

The issue is whether appellant’s claim for compensation was timely filed pursuant to 5 

U.S.C. § 8122. 

 

 1 5 U.S.C. § 8101 et seq.

2

 The Board notes that, following the issuance of the November 17, 2016 OWCP decision, appellant submitted 

new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued 

its final decision. Thus, the Board is precluded from reviewing this evidence on appeal. See 20 C.F.R. 

§ 501.2(c)(1); see also Dennis E. Maddy, 47 ECAB 259 (1995). 
2

On appeal appellant contends that he did not receive any notices regarding his claim 

because he was in the middle of his move from Miami, FL, to the Washington, DC, area. He 

asserts that he had all of his mail held at a post office from October 31, 2016, the date he moved 

into temporary quarters, until November 22, 2016,3

 the closing date of his new home. 

FACTUAL HISTORY 

On September 1, 2016 appellant, then a 40-year-old federal air marshal, filed a traumatic 

injury claim (Form CA-1) alleging that on February 2, 2013 he had constant ringing in his ears 

while on descent in a flight from Florida to Washington, DC. He alleged that his head and ears 

became clogged and were not able to clear and equalize the pressure. 

On the reverse of the claim form, R.P., a supervisor, indicated that he did not receive 

notice of appellant’s alleged injury until September 9, 2016. 

By letter dated October 14, 2016, OWCP advised appellant that the evidence submitted 

was insufficient to establish his claim. It informed him of the medical and factual evidence 

needed and also advised him that the evidence was insufficient to show that he timely filed his 

claim. OWCP requested that appellant submit such evidence and respond to the provided 

questions within 30 days. The letter was mailed to his address provided on the September 9, 

2016 Form CA-1. In another letter dated October 14, 2016, OWCP requested that the employing 

establishment submit evidence within 30 days regarding the timeliness of appellant’s claim. 

Neither appellant nor the employing establishment responded to OWCP’s factual inquiries. 

In a November 17, 2016 decision, OWCP denied appellant’s claim that he sustained an 

injury in the performance of duty on February 2, 2013. It found that he had established that he 

was a federal civilian employee who filed a timely claim and that the injury and/or event(s) 

occurred as described. However, OWCP further found that appellant had not established the 

medical component of the third basic element, fact of injury. It noted that he had not submitted 

any evidence containing a medical diagnosis in connection with the accepted February 2, 2013 

work incident. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of establishing 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 timely filed within the applicable time 

limitation period of FECA, that an injury was sustained in the performance of duty as alleged, 

and that any disability or medical condition for which compensation is claimed is causally 

related to the employment injury.4

 3

 It appears that appellant inadvertently stated that he had his mail held at the post office until November 22, 2017 

rather than November 22, 2016 as he provided a new street address in Haymarket, Virginia, on his January 9, 2017 

Application for Review (Form AB-1). 

4 J.H., Docket No. 14-1219 (issued November 24, 2014). 
3

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 The Board may raise the issue on appeal 

even if OWCP did not base its decision on the time limitation provisions of FECA.6

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 be allowed even if a claim is not filed within three years if the immediate superior 

had actual knowledge of the injury or death within 30 days such as to put the immediate superior 

reasonably on notice of an on-the-job injury or death, or written notice of injury or death as 

specified in section 8119 was given within 30 days.7

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.8 Actual knowledge and written notice of injury under 

section 8119 serve to satisfy the statutory period for filing an original claim for compensation.9

 

For actual knowledge of a supervisor to be regarded as timely filed, 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-the-job injury.10

When a traumatic injury definite in time, place, and circumstances is involved, the time 

for giving notice of injury and filing for compensation begins to run at the time of the incident, 

even though the employee may not have been aware of the seriousness or ultimate consequences 

of his or her injury.11 The Board has held that the applicable statute of limitations commences to 

run although the employee does not know the precise nature of the injury.12

ANALYSIS 

On September 1, 2016 appellant filed a traumatic injury claim alleging that on 

February 2, 2013 he sustained an injury to his ears as a result of the descent during a flight from 

 5 Charles Walker, 55 ECAB 238, 239 (2004); see Charles W. Bishop, 6 ECAB 571, 571 (1954). 

6 Id.

7

 5 U.S.C. § 8122(a). 

8 Id. at § 8119; Larry E. Young, 52 ECAB 264, 266 (2001). 

9 Laura L. Harrison, 52 ECAB 515, 517 (2001). 

10 Delmont L. Thompson, 51 ECAB 155, 156 (1999). 

11 Emma L. Brooks, 37 ECAB 407, 411 (1986). 

12 Delmont L. Thompson, supra note 10. 
4

Florida to Washington, DC, while at work. The Board finds that his claim was not timely filed 

in a timely manner. 

The time for appellant giving notice of injury and filing for compensation began to run at 

the time of the claimed incident on February 2, 2013.13 Appellant did not file his Form CA-1 for 

a work injury until September 1, 2016. Therefore, appellant’s claim for this injury was not filed 

within the requisite three-year time limitation period. 

Appellant’s claim could still be considered timely if the 30-day notice provisions of 5 

U.S.C. § 8122 were met, but in this case no probative evidence was presented that he provided 

notice of injury within 30 days. R.P. reported that he did not receive notice of appellant’s 

claimed injury until September 9, 2016. Further, appellant did not provide any evidence that his 

immediate superior had actual knowledge of an employment injury within 30 days, nor is there 

any evidence that written notice of injury was given within 30 days. He did not respond to 

OWCP’s questionnaire and did not provide OWCP with additional factual evidence regarding 

the delay in filing his claim. 

The Board finds, therefore, that the claim in this case was untimely filed. The evidence 

of record does not establish that the claim was timely under the provisions of 5 U.S.C. § 8122. 

On appeal appellant contends that he did not receive any notices regarding his claim 

because he was in the middle of his move from Miami, FL, to the Washington, DC, area. He 

asserts that he had all of his mail held at a post office from October 31, 2016, the date he moved 

into temporary quarters, until November 22, 2016, the closing date of his new home, but the 

claim was already untimely at that time and, whether appellant had received notice or not, would 

not render timely the otherwise untimely claim. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant’s claim for compensation was not timely filed pursuant to 

5 U.S.C. § 8122. 

 13 See supra notes 10 and 11. 
5

ORDER 

IT IS HEREBY ORDERED THAT the November 17, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed, as modified herein. 

Issued: May 12, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees' Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees' Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees' Compensation Appeals Board