United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

I.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

New York, NY, Employer

__________________________________________

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Docket No. 17-0958

Issued: November 13, 2017

Appearances: Case Submitted on the Record

Stephen Larkin, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 2, 2017 appellant, through her representative, filed a timely appeal from a 

January 25, 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 this case.

ISSUE

The issue is whether appellant’s occupational disease claim is timely pursuant to 5 U.S.C. 

§ 8122(a).

 

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

FACTUAL HISTORY

This case has previously been before the Board.3 The facts of the case, as set forth in the 

prior decision, are incorporated herein by reference. The relevant facts are as follows. 

On March 19, 2015 appellant, then a 49-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) for an injury to her lumbar back and both legs.4 She indicated that 

she first became aware of her disease or illness on October 12, 2008. The employing 

establishment advised that appellant stopped work on October 12, 2008. Before she stopped 

work, appellant explained that she had been working full duty for eight months including 

repetitive lifting, bending, and standing. As of March 19, 2015, she had not yet resumed work.

Appellant had previously sustained a work-related traumatic injury (Form CA-1) on 

June 13, 2006, which OWCP accepted for cervical sprain, left shoulder sprain, and lumbar 

sprain, under OWCP File No. xxxxxx157.5

With respect to her current occupational disease claim, appellant submitted an undated 

statement in which she indicated that while working on June 13, 2006 she fell backwards, 

landing first on her buttocks, and then on her back. She further stated that she returned to work 

on February 18, 2008. Appellant indicated that both her treating physician and an OWCP 

referral physician provided work restrictions, but appellant’s supervisor reportedly told her that 

she would not comply with these restrictions. Appellant’s union filed a grievance and an Equal 

Employment Opportunity (EEO) complaint while appellant returned to full-duty work. 

Appellant further explained that she worked full duty until October 12, 2008 when she had to 

stop work because her condition had worsened. She stated that she was advised to see

Dr. Deborah Eisen, a Board-certified family practitioner, who saw her on August 6, 2014 and 

informed her that her condition was an occupational disease. 

In a March 2, 2015 report, Dr. Eisen stated that appellant presented on August 6, 2014 for 

evaluation and treatment of an unresolved employment-related condition. She diagnosed 

aggravation of a bulging disc into a herniated lumbar disc. Dr. Eisen explained that appellant’s 

condition was actually an occupational disease that occurred over an eight-month period, as well 

as anterolisthesis at L4-5, and lumbar sprain. She further indicated that the aggravated injury 

occurred because restrictions were not followed, and that appellant’s duties from February 18 to 

October 12, 2008 caused her current diagnosed conditions.

 

3 Docket No. 15-1691 (issued February 11, 2016).

4 Appellant signed the claim form on March 4, 2014. However, elsewhere on the Form CA-2 she identified a 

subsequent date, August 6, 2014, as the date she first realized her condition was employment related. The 

employing establishment completed its portion of the Form CA-2 on March 19, 2015, and advised that appellant 

first reported her condition on March 17, 2015. 

5 As discussed infra, OWCP also accepted an October 16, 2008 recurrence of disability under File No. 

xxxxxx157. The complete case record associated with appellant’s June 13, 2006 traumatic injury claim is not 

currently available to the Board. 
3

On April 15, 2015 the employing establishment controverted appellant’s claim on the 

basis of causal relationship and timely filing. It noted that she did not file the claim within three 

years of October 12, 2008; the date she reportedly became aware of her condition. The 

employing establishment also argued that appellant had not established a causal relationship 

between her condition and factors of employment. Lastly, it noted that she had been receiving 

compensation under OWCP File No. xxxxxx157 that was terminated on August 17, 2012 

because the condition was not injury related. The employing establishment represented that 

appellant was again claiming the “same condition.”

In a May 7, 2015 letter, OWCP advised appellant of the deficiencies in her claim and 

afforded her 30 days to submit additional evidence and respond to its inquiries. 

Appellant submitted a narrative statement and reports dated February 23 through June 2, 

2015 from Dr. Eisen who diagnosed anterolisthesis at L4-5, herniated lumbar disc, and lumbar 

strain and advised that appellant was totally disabled for work.

On January 31, 2014 Dr. Vadim Kushnerik, a pain management specialist, diagnosed 

herniated discs causing nerve compression and opined that appellant’s employment injury on 

June 13, 2006 and exacerbation in 2008 caused her lumbar condition. 

By decision dated July 7, 2015, OWCP denied appellant’s occupational disease claim 

because it was untimely filed.

In its decision dated February 11, 2016, the Board affirmed OWCP’s July 7, 2015 

decision on the basis that appellant’s claim was untimely filed under 5 U.S.C. § 8122. The 

Board found that the three-year time limitation for filing her claim began to run on October 12, 

2008 and expired on October 12, 2011. As such, appellant’s March 19, 2015 occupational 

disease claim was untimely. The Board further found that there was no evidence that appellant’s 

immediate superior had actual knowledge or was reasonably put on notice within 30 days of 

October 12, 2008. The Board specifically found that there was no evidence that “written notice 

of injury was given within 30 days.” Additionally, the Board found that there were no 

exceptional circumstances within the meaning of FECA that would excuse appellant’s untimely 

filing.

On August 28, 2016 appellant’s representative requested reconsideration and submitted a 

copy of an October 24, 2008 claim for a recurrence of disability (Form CA-2a) that appellant 

filed under OWCP File No. xxxxxx157. She claimed to have sustained a recurrence of total 

disability on October 16, 2008, which was related to her June 13, 2006 original injury. Appellant 

stated that there was a limited-duty agreement in place, but it was not honored and her condition 

had been aggravated while working full duty for a period of seven months. Her immediate 

supervisor signed the Form CA-2a on October 24, 2008. Additionally, the employing 

establishment indicated that appellant had been offered a limited-duty assignment and when her 

doctor requested that her limitations be modified, it accommodated the new restrictions. 

On reconsideration, appellant’s representative argued that her uncertainty as to the 

appropriate claim to file (recurrence or new occupational disease) did not mean that management 

was unaware of the worsening of appellant’s condition over a period of time. He further argued 
4

that the Form CA-2a had been submitted within 30 days of the date of injury, and as such, the 

claim was timely. 

By decision dated January 25, 2017, OWCP denied modification of its prior decision 

finding that appellant’s occupational disease claim was untimely filed and the Form CA-2a failed 

to substantiate that appellant’s supervisor had knowledge of her employment-related lumbar and 

bilateral leg conditions within 30 days of the date of injury. It further found that a claim for a

recurrence sustained on October 16, 2008 was filed and accepted under File No. xxxxxx157. 

Considering the acceptance of the recurrence under the other claim number, OWCP found that it

was unclear how appellant’s immediate superior would have had actual knowledge or was 

reasonably put on notice within 30 days of the October 12, 2008 date of injury that she had 

developed an “occupational disease” from performing her employment duties. 

LEGAL PRECEDENT

An original claim for compensation for disability or death must be filed within three

years after the injury or death.6 A claim filed outside this time frame must be disallowed unless 

the immediate superior had actual knowledge of the injury or death within 30 days.7 Knowledge 

by the immediate superior, another official at the employing establishment, or any employing 

establishment physician or dispensary that an employee has sustained an injury, alleges that an 

injury has been sustained, or alleges that some factor of the employment has resulted in a 

physical condition constitutes actual knowledge.8

In a case of latent disability, the time for filing a claim does not begin to run until the 

employee has a compensable disability and is aware or by the exercise of reasonable diligence 

should have been aware of the causal relationship of the compensable disability to his 

employment.9 An employee with actual or constructive knowledge of her employment-related 

condition, who continues to be exposed to injurious working conditions, must file a claim within 

three years of the date of last exposure to the implicated conditions.10

 

6

5 U.S.C. § 8122(a).

7

Id. at § 8122(a)(1). 

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3a(3) (March 1993). Such knowledge 

or notification must be such as to put the employing establishment reasonably on notice of an on-the-job injury or 

death. See Chapter 2.801.3a(3)(c). It is not sufficient that the immediate superior, official or dispensary worker at 

the employing establishment was aware that the employee complained of back pain, suffered a myocardial 

infarction, etc. Id. To constitute actual knowledge, it must be found that the immediate superior, other official, or 

dispensary worker was aware that the employee related the back pain, MI, etc. to an injury sustained while in the 

performance of duty or to some factor of the employment. Id.

9

5 U.S.C. § 8122(b). 

10 E.g., James A. Sheppard, 55 ECAB 515, 518 (2004); supra note 8 at Chapter 2.801.6.
5

ANALYSIS

On the March 19, 2015 Form CA-2, appellant represented that she first became aware of 

her claimed condition on October 12, 2008. Additionally, the employing establishment 

represented that October 12, 2008 was the date that she was last exposed to the conditions that 

allegedly caused her disease or illness. Appellant had stopped work on that date and had not 

since returned as of the March 19, 2015 date of filing. 

In its prior decision, the Board found that the three-year period for filing a timely claim

commenced on October 12, 2008 and ended October 12, 2011. Because appellant waited until 

March 19, 2015 to file her Form CA-2, the Board found that the claim was untimely filed. The 

Board further found that there was no evidence that appellant’s immediate superior had actual 

knowledge or was reasonably put on notice within 30 days of October 12, 2008. The Board

specifically found that there was no evidence that “written notice of injury was given within 30 

days.” Thus, the Board affirmed OWCP’s denial of the claim as untimely pursuant to 5 U.S.C. 

§ 8122.

Appellant was previously injured in a work-related fall on June 13, 2006, addressed in 

OWCP File No. xxxxxx157. Her accepted conditions under that prior traumatic injury claim 

included cervical, left shoulder, and lumbar sprains. On reconsideration, appellant’s 

representative submitted a copy of an October 24, 2008 Form CA-2a that appellant filed in 

connection with OWCP File No. xxxxxx157. An employing establishment representative --

“official superior” -- signed and dated the Form CA-2a on October 24, 2008. 

In its January 25, 2017 decision, OWCP acknowledged that under File No. xxxxxx157 it 

previously accepted a recurrence of disability beginning October 16, 2008. Although the 

employing establishment received the Form CA-2a within 30 days of the claimed October 2008 

occupational disease, the senior claims examiner found that the October 24, 2008 Form CA-2a

was insufficient to place appellant’s immediate superior on notice of her claimed October 12, 

2008 “occupational disease.” The Board agrees. 

The October 24, 2008 Form CA-2a noted that there was a limited-duty agreement in 

place but it was not honored by management, and consequently, appellant’s condition had been 

aggravated while working full duty for a period of seven months. An employing establishment 

representative signed the Form CA-2a on October 24, 2008. Appellant’s representative 

essentially argued that the uncertainty as to which claim form to file (Form CA-2 or Form 

CA-2a) did not negate the fact that the employing establishment had been notified that appellant 

believed her claimed condition was employment related.

The Board finds that the October 24, 2008 Form CA-2a was insufficient to establish the 

immediate superior’s actual knowledge of appellant’s claimed lumbar and bilateral leg condition

within 30 days of the injury (i.e., October 12, 2008 date of awareness of condition). The 

recurrence claim, which OWCP ultimately accepted, only provided notice of a worsening of the 

June 13, 2006 traumatic injury under OWCP File No. xxxxxx157. The Form CA-2a did not 

provide notice that appellant had developed an occupational disease due to factors of her federal 

employment. 
6

The Board further finds that appellant’s March 19, 2015 occupational disease claim was 

an improper duplicate claim of her June 13, 2006 traumatic injury claim. Appellant did not 

allege any new work factors or exposure. As such, the occupational disease claim should not 

have been created and OWCP should not have undertaken development with respect to this 

duplicate claim.11

CONCLUSION

The Board finds that appellant’s occupational disease claim was untimely pursuant to 

5 U.S.C. § 8122. Furthermore, the Board finds that the claim was an improper duplicate of 

appellant’s June 13, 2006 traumatic injury claim under OWCP File No. xxxxxx157.

ORDER

IT IS HEREBY ORDERED THAT the January 25, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 13, 2017

Washington, DC

Patricia H. Fitzgerald, Deputy 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

 

11 See S.W., Docket No. 16-0219 (issued April 5, 2016).