United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.M., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, AIR 

FORCE NATIONAL GUARD TITLE 32, 

Tacoma, WA, Employer 

__________________________________________ 

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Docket No. 16-0220 

Issued: March 15, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 17, 2015 appellant filed a timely appeal from a July 10, 2015 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 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 this case. 

ISSUE 

The issue is whether appellant’s claim for compensation was filed within the applicable 

time limitation provisions of FECA. 

 1

 The Board notes that appellant submitted additional evidence after the July 10, 2015 decision. The Board’s 

jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision and 

therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy, 47 

ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). 

2

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On December 14, 2014 appellant, then a 71-year-old retired aircraft mechanic, filed a 

traumatic injury claim (Form CA-1) alleging that on August 9, 1984, while he was working, he 

hit his head on the KC-135 wheel well while all four engines were running. He stated that his 

hearing protection was knocked off his head and the collision caused him to cut his left eyelid, 

the bridge of his nose, and his forehead requiring him to get stitches at the hospital. On the 

reverse side of the form, appellant’s supervisor indicated that he was first notified of the incident 

on August 9, 1984 and appellant sought emergency medical treatment that same date. He 

checked the box marked “yes” when asked if his knowledge about the facts of injury agreed with 

appellant’s statements. Appellant’s supervisor also checked the box marked “yes” when asked 

was appellant “in the performance of duty?” 

By letter dated June 9, 2015, 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 not sufficient to show that he timely filed his claim. 

OWCP requested that appellant submit such evidence within 30 days. 

By letter dated February 1, 2015, appellant reported that he had retired from the 

employing establishment in 1995 as a general aircraft mechanic. He stated that working in the 

field caused him to progressively lose his hearing ability. Appellant discussed the 1984 accident 

when he hit his head on the KC-135 wheel well while all four engines were running. This 

knocked his hearing protection off his head and he was lying on the ground with no hearing 

protection for 5 to 10 minutes. Appellant was transported to the emergency room where he 

received stitches for his eyelid, nose, and forehead. Directly after the incident, he experienced 

high pitch sounds in his ears, difficulty hearing, and difficulty understanding the spoken word. 

Appellant thought the problem would go away but it continued to worsen. He requested hearing 

aids as a result of his hearing loss. 

By decision dated July 10, 2015, OWCP denied appellant’s claim on the grounds that it 

was not timely filed. It found no evidence that the claim had been filed within three years of the 

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

the injury date. 

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.3 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.4

 Compensation 

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

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

515 (2001). 
3

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.5

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 supervisor or 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 person giving the notice.6

 Actual knowledge and written notice of injury under 

section 8119 serve to satisfy the statutory period for filing an original claim for compensation.7 

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.8

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 injury.9

 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.10 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.11

 5

 5 U.S.C. § 8122(a). See J.M., Docket No. 09-1563 (issued February 26, 2010); J.P., 59 ECAB 178 (2007); 

Cory W. Davis, 57 ECAB 674 (2006). 

6

 5 U.S.C. § 8119; Larry E. Young, 52 ECAB 264 (2001). 

7 Laura L. Harrison, supra note 4. 

8 Delmont L. Thompson, 51 ECAB 155 (1999). 

9 Emma L. Brooks, 37 ECAB 407 (1986). 

10 Supra note 8. 

11 5 U.S.C. § 8122(b). 
4

ANALYSIS 

Appellant did not file his traumatic injury claim until December 22, 2014, almost 30 

years after the August 9, 1984 incident. Therefore, his claim was filed outside the three-year 

time limitation period which ended August 9, 1987. 

Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if 

his immediate superior or another employing establishment official had actual knowledge of the 

injury within 30 days of the date of injury.12 The knowledge must be such as to put the 

immediate superior reasonably on notice of an on-the-job injury or death.13 There is no 

supporting evidence that appellant’s immediate superior or another employing establishment 

official had actual or written knowledge of the August 9, 1984 hearing loss injury within 30 days 

of the date of injury. On the reverse side of appellant’s Form CA-1, his supervisor indicated that 

he was notified of the employment incident on August 9, 1984 and appellant received emergency 

medical attention. On his Form CA-1, appellant noted that he sustained an injury to his left 

eyelid, bridge of his nose, and forehead which required him to get stitches. However, his 

February 1, 2015 narrative report indicates that his hearing loss did not occur until after the 

employment incident and progressively worsened over time. Thus, the evidence submitted does 

not substantiate an immediate supervisor’s knowledge that appellant sustained work-related 

hearing loss injury within 30 days of the injury.14 Knowledge merely of an employee’s illness is 

not sufficient to establish actual knowledge and timeliness; it must be shown that the 

circumstances were such as to put the supervisor on notice that the alleged injury was actually 

related to the employment or that the employee attributed it thereto.15

The Board finds that appellant has not established actual knowledge by his supervisors of 

a work-related hearing loss within 30 days of the incident and, therefore, has not established a 

timely claim.16 The record is void of any indication that his immediate supervisor had written 

notice of his work-related hearing loss injury within 30 days. This exception to the statute has 

not been met and, thus, appellant has failed to establish that he filed a timely claim. 

 12 Larry E. Young, supra note 6. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3 

(March 1993). 

13 Kathryn A. Bernal, 38 ECAB 479 (1987). 

14 See Linda J. Reeves, 48 ECAB 373 (1997) (where the Board held that while appellant submitted a statement 

from a former supervisor that established that he had some knowledge of appellant’s complaints, this statement was 

not sufficient to establish that her immediate supervisor had actual knowledge of a work-related injury as the 

statement only made a vague reference to appellant’s health and did not indicate that she sustained any specific 

employment-related injury such that the knowledge would put the immediate supervisor reasonably on notice of an 

on-the-job injury or death). 

15 See id.; Roseanne S. Allexenberg, 47 ECAB 498 (1996) (where the Board held that knowledge of an 

employee’s illness is not sufficient to establish actual knowledge and timeliness of a claim. It must be shown that 

the circumstances were such as to put the supervisor on notice that the alleged injury was actually related to the 

employment or that the employee attributed it thereto. 

16 D.J., Docket No. 14-1397 (issued November 14, 2014). 
5

While appellant’s statement suggests that he first became aware of his hearing loss at 

some point after the August 9, 1984 injury, he has not provided sufficient evidence to establish 

that this is a latent injury claim. When an employee becomes aware or reasonably should have 

been aware that he has a condition which has been adversely affected by factors of his 

employment, such awareness is competent to start the limitation period even though he does not 

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

temporary or permanent.17 Appellant has not identified the date that he became aware of his 

hearing loss, and has not submitted supporting medical evidence to establish a latent condition. 

For example, in prior cases the Board has noted that appellant should have been aware of a latent 

hearing loss as of the date of an audiogram.18 

Consequently, appellant has not met his burden of proof as he has not established that he 

filed a timely notice of traumatic injury and claim for compensation under the applicable time 

limitation provisions of FECA.19 

To the extent that the February 1, 2015 letter to OWCP could suggest that he continued to 

be exposed to hazardous noise due to his federal employment until his retirement in 1995, the 

Board has held, if the employee continues in the same employment, the time limitation begins to 

run on the date of his last exposure to the implicated factors. Appellant’s last date of exposure to 

any work factors would have been his retirement date of 1995. This also was not within three 

years of the December 14, 2014 claim.20 Appellant has therefore not filed a timely claim for 

compensation. 

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 failed to file a claim for compensation within the 

applicable time limitation provisions of FECA. 

 17 Larry E. Young, supra note 6; see also W.A., Docket No. 14-1199 (issued December 19, 2014); 5 U.S.C. 

§ 8122(b). 

18 See C.G., Docket No 08-1634 (issued January 9, 2009). 

19 L.S., Docket No. 15-132 (issued April 3, 2015). 

20 See Larry E. Young, supra note 6; W.A., supra note 17. 
6

ORDER 

IT IS HEREBY ORDERED THAT the July 10, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 15, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board