United States Department of Labor

Employees’ Compensation Appeals Board

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A.S., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, METROPOLITAN 

CORRECTIONAL CENTER, New York, NY, 

Employer

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Docket No. 18-1094

Issued: February 7, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

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 May 7, 2018 appellant filed a timely appeal from a March 29, 2018 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.

ISSUE

The issue is whether appellant’s occupational disease claim is barred by the applicable time 

limitation provisions of 5 U.S.C. § 8122(a).

FACTUAL HISTORY

On November 21, 2016 appellant, then a 56-year-old correctional officer, filed an 

occupational disease claim (Form CA-2) alleging that he developed depression, sleeplessness, 

shortness of temper, hypervigilance, and “self-consciousness of people from an Arabic 

background” due to his federal employment. He indicated that he first became aware of his 

claimed condition on September 11, 2001 and further related that he was working in an employing 
2

establishment facility, possibly in the housing unit, when airplanes struck the World Trade Center

(WTC) towers. Appellant noted that, after this event, he developed chest pains, which caused him 

to see a physician. He then went to the World Trade Center Health Program (WTCHP) who found 

that his depression, anger, sleeplessness, and alcohol issues were related to the September 11, 2001

incident and certified him with having post-traumatic stress disorder (PTSD). Appellant explained 

that he delayed in filing his claim because, during the time he experienced the described symptoms, 

he did not know they were related to his tour in the United States Marine Corps and his 

employment with the employing establishment until he sought treatment from WTCHP. He

indicated that he first reported his condition to his supervisor on November 21, 2016.

OWCP received a November 9, 2016 letter in which the WTCHP informed appellant that 

he had been certified with having a mental health condition covered by treatment benefits as of 

October 25, 2016. It subsequently received medical reports dated August 15 through 

November 23, 2016, including an October 7, 2016 report by Dr. Sarah Caraisco, a Board-certified 

psychiatrist, who examined appellant, diagnosed chronic PTSD and single episode of moderate 

major depressive disorder. Dr. Caraisco opined that the diagnosed conditions were caused by 

appellant’s military and work trauma and exacerbated by the September 11, 2001 incident and 

continuing work trauma.

OWCP, by development letter dated February 3, 2017, notified appellant of the 

deficiencies of his claim and afforded him 30 days to submit additional medical and factual 

evidence. Appellant was also provided a questionnaire for his completion regarding the factual 

circumstances of his injury. In a separate development letter dated February 3, 2017, OWCP 

requested that the employing establishment respond to appellant’s allegations and provide 

information regarding his work activities and job description.

Neither appellant, nor the employing establishment responded to OWCP’s requests for 

additional factual information. 

OWCP received progress notes dated January 30, 2013 through March 1, 2017 by various 

psychiatrists and psychologists who diagnosed: impulse control disorder, not otherwise specified;

intermittent explosive disorder; adjustment disorder with depressed mood; and PTSD.

By decision dated March 6, 2017, OWCP denied appellant’s occupational disease claim as

it was untimely filed. It found that appellant reasonably became aware of the relationship between 

his condition and his federal employment on September 11, 2001, but did not file a claim until 

November 21, 2016. Additionally, OWCP noted that he had not responded to its February 3, 2017 

development letter.

On March 24, 2017 appellant requested a telephonic hearing before an OWCP hearing 

representative, which was held on September 18, 2017. During the hearing, he advised that,

although he suffered from depression, missed work, and had personal problems and sleeplessness, 

after the September 11, 2001 incident, he was not aware of their origin. Appellant further advised 

that he had not notified the employing establishment or his supervisor about his symptoms because 

he was trying to deal with them. He related that he had not become aware that his symptoms were 

related to the September 11, 2001 incident until he was examined and diagnosed by a physician in 

July 2015. Appellant noted that, prior to being treated by WTCHP, he received treatment for his 

depression and marital problems at a Veterans Administration (VA) medical facility.
3

Following the hearing, appellant submitted an undated narrative statement in response to 

OWCP’s February 3, 2017 development letter. He related that he was diagnosed with PTSD due 

to his exposure to the events of September 11, 2001. After the airplanes hit the WTC towers, 

appellant had to secure the jail during a loss of communication by telephone and computer. He 

noted that the area around the WTC towers was locked down and smoldering. Appellant was 

unable to go home and was concerned about the safety of his wife and children. 

Appellant also attributed his claimed conditions to other work events. He escorted and 

physically fought with terrorist suspects who were housed in various secure units in his facility 

following their involvement in the bombing of one of the WTC towers on February 26, 1993 and

United States embassies in Africa on August 7, 1998. On the day following the February 26, 1993 

event, appellant physically removed a reluctant suspected terrorist from his cell and escorted him 

to court. In court, the suspect alleged that he was physically abused by appellant. Following an 

investigation of the allegation by the employing establishment’s office of inspector general, he 

was cleared of any wrongdoing. 

Appellant also related that, on November 1, 2000, an employing establishment officer was 

taken hostage and stabbed in an eye by two suspected terrorists housed in his unit. He and other 

first responders fought the suspects with their bare hands, as they were not allowed to carry 

weapons at work, to secure the release of the officer. Following the stated incidents, appellant 

maintained that he experienced hypersensitivity, trouble sleeping, angry outbursts, and heavy 

drinking, which resulted in his divorce and criminal charges. He contended that being directly 

involved in three traumatic international terrorist attacks caused his conditions. Appellant further 

contended that having to report to work on the next day following Hurricane Sandy in 2012, 

resulted in the development of his shortness of breath and tightening chest sensation. He noted 

that he had no power at home and Manhattan, New York was shutdown. At work, appellant was 

outside in the rain and when he jogged back to work to get out of the rain, he experienced the 

above-noted symptoms. He further related that, this “was another traumatic event at work and I 

began showing signs of hypersensitivity now, physical ailments, rapid heartbeat and shortness of 

breath.” Appellant noted that he was treated at a VA medical facility for his continuing depression. 

In 2015, appellant underwent a physical and mental examination as a result of his reaction 

to Hurricane Sandy and was diagnosed with PTSD. He filed his claim in 2016 when the WTCHP

officially certified him with PTSD related to his employment from 1991 until the present. 

Appellant claimed that he was never told by the employing establishment to seek assistance due 

to his exposure to terrorist incidents leading up to the September 11, 2001 terrorist attack or after 

Hurricane Sandy in 2012. He related that his medical records showed that he was receiving 

treatment, but it was not until he sought treatment for a possible physical issue due to Hurricane 

Sandy and was given a psychiatric screening by the WTCHP in 2015 that the connection was made 

to his September 11, 2001 experience and diagnosis of PTSD, which he reported promptly in 2016 

after receiving certification of his condition by WTCHP.

By decision dated December 4, 2017, an OWCP hearing representative set aside the 

March 6, 2017 decision and remanded the case for further development. She directed OWCP to 

issue an appropriate development letter to the employing establishment to review and respond to 

appellant’s factual statement.
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On remand, by letter dated December 6, 2017, OWCP requested that the employing 

establishment respond to appellant’s factual statement within 30 days. The employing 

establishment did not respond.

By decision dated March 29, 2018, OWCP again denied appellant’s occupational disease 

claim as untimely filed. It found that his date of last exposure was in 2012, the date of Hurricane 

Sandy, and he should have been aware of a relationship between his employment and the claimed 

conditions by that date. OWCP reported that the employing establishment had not responded to 

its December 6, 2017 development letter. It further found that the medical evidence of record did 

not contain a diagnosed medical condition causally related to the work event.

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.1 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.2

In a case of occupational disease, 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 his or her employment. Such awareness is competent to start the 

time limitation period even though the employee does not know the precise nature of the 

impairment or whether the ultimate result of such affect would be temporary or permanent.3 Where 

the employee continues in the same employment after he or she reasonably should have been aware 

that he or she has a condition, which has been adversely affected by factors of federal employment, 

the time limitation begins to run on the date of the last exposure to the implicated factors.4 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.5 It is the 

employee’s burden, not the employing establishment, to file a claim within three years.6

ANALYSIS

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

limitation provisions of 5 U.S.C. § 8122(a).

 

1 C.S., Docket No. 18-0009 (issued March 22, 2018); C.D., 58 ECAB 146 (2006); David R. Morey, 55 ECAB 642 

(2004); Mitchell Murray, 53 ECAB 601 (2002).

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

515 (2001).

3 Larry E. Young, 52 ECAB 264 (2001).

4

Id.

5 5 U.S.C. § 8122(b).

6 Gerald A. Preston, 57 ECAB 270 (2005); Debra Young Bruce, 52 ECAB 315 (2001).
5

The record establishes that appellant’s last exposure to the implicated factors of his federal 

employment occurred in 2012. Appellant filed his occupational disease claim on November 21, 

2016, more than three years after the date of last exposure. Consequently, he filed his claim outside 

the three-year time limitation period.7 

Appellant has alleged that he did not become aware of the connection between his 

emotional condition and factors of his federal employment until July 2015, when he had a 

discussion with his WTCHP physician regarding the extent and cause of his emotional condition. 

The Board notes that appellant did not specify the precise date of the discussion with his physician 

that led to his awareness of the cause of his condition. Moreover, appellant did not submit a 

medical report from this physician indicating that he had an emotional condition caused or 

aggravated by his federal employment exposure. He submitted Dr. Caraisco’s October 7, 2016 

report in which she diagnosed chronic PTSD and single episode of moderate major depressive 

disorder. Dr. Caraisco opined that the diagnosed conditions were caused by appellant’s military 

and work trauma and exacerbated by the September 11, 2001 incident and continuing work trauma. 

The Board finds, however, that Dr. Caraisco’s October 7, 2016 report is insufficient to establish 

that appellant was aware of his emotional conditions only as of July 2015. A review of the record 

shows that he was aware, or by the exercise of reasonable diligence, should have been aware, of 

the causal relationship between his employment exposure and his emotional condition as early as 

2012. 

Appellant’s own statements confirm that he knew or reasonably should have known of the 

relationship between his emotional condition and his work exposure in 2012, if not before. In his 

undated statement, he noted that he experienced shortness of breath and tightening chest sensation 

following his work exposure in 2012 to Hurricane Sandy. Appellant related that, this “was another 

traumatic event at work and I began showing signs of hypersensitivity now, physical ailments, 

rapid heartbeat and shortness of breath.” 

Appellant expressed an awareness that his work exposure to Hurricane Sandy in 2012 

caused his emotional and physical conditions, which demonstrates that, at that time, more than 

three years prior to filing his claim, he became aware, or should have been aware, that he had an 

emotional condition related to his employment.

8

 Appellant contended that he was not aware that 

his emotional condition was due to his employment until July 2015. The Board notes that, while 

no specific emotional condition diagnosis was made in July 2015, appellant attributed his 

emotional condition to his work exposure as early as 2012. As the Board has previously noted, 

when an employee becomes aware or reasonably should have become aware, that he or she has a 

condition, which has been adversely affected by factors of his or her employment, such awareness 

is competent to start the running of the time limitations period, even though he or she does not 

know the precise nature of the impairment, or whether the ultimate result of such adverse effect 

would be temporary or permanent.9 In discussing the degree of knowledge required by the 

employee prior to filing a claim, the Board has emphasized that he or she need only be aware of a 

possible relationship between his or her condition and the employment to commence the statute of 

 

7 See J.Y., Docket No. 16-0332 (issued June 8, 2016); R.V., Docket No. 10-1776 (issued April 1, 2011); James W. 

Beavers, 57 ECAB 254 (2005).

8 See cases cited supra note 6.

9 Larry E. Young, supra note 3.
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limitations. The Board has not required that appellant have definitive evidence of a condition and 

causal relationship on the date the claim is filed.10

Appellant experienced an emotional condition, which he attributed to his work exposure, 

beginning in 2012 during his period of employment. The Board finds, therefore, that the totality 

of the factual circumstances of record establish that appellant was aware or should have been aware 

as early as 2012 that his claimed emotional condition was due to federal employment exposure.11

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

FECA if his immediate supervisor had actual knowledge of the 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.12 Additionally, the claim would be deemed timely if written notice of injury or 

death was provided within 30 days.13

The record contains no evidence that appellant’s supervisor had actual knowledge of an 

employment injury or that written notice of the injury was given within 30 days. Appellant failed 

to submit information to substantiate that management was aware that his emotional condition was 

causally related to his federal employment. There was no statement from a supervisor establishing 

knowledge of a work-related injury.14 Knowledge merely of an employee’s illness is insufficient 

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 Therefore, the Board finds that appellant has not 

established actual knowledge by his supervisors of his work-related condition within 30 days and,

therefore, has not established a timely claim. Further, the Board finds that the record is devoid of 

any indication that appellant’s immediate supervisors had written notice of his work-related injury 

within 30 days. The exceptions to the statute have not been met, and thus, appellant has failed to 

establish that he filed a timely claim on November 21, 2016.16

On appeal appellant contends that his claim was timely filed, as he filed it immediately 

after being diagnosed with PTSD causally related to his September 11, 2001 exposure. However, 

 

10 See Edward Lewis Maslowski, 42 ECAB 839 (1991). See also William A. West, 36 ECAB 525 (1985).

11 C.S., Docket No. 18-0009 (issued March 22, 2018); S.I., Docket No. 08-0095 (issued May 14, 2008).

12 5 U.S.C. § 8122(a)(1); see Jose Salaz, 41 ECAB 743, 746 (1990); Kathryn A. Bernal, 38 ECAB 470, 472 (1987).

13 Id. at § 8122(a)(1) and (2).

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 her complaints, this statement was not sufficient 

to establish that her immediate superior had actual knowledge of a work-related injury as the statement only made a 

vague reference to her health and did not indicate that she sustained any specific employment-related injury, rather 

the knowledge must be such as to put the immediate superior reasonably on notice of an on-the-job injury or death).

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

illness is insufficient 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 See cases cited supra note 11.
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based on the reasons set forth above, the Board finds that appellant’s November 21, 2016 

occupational disease claim was untimely filed.

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 occupational disease claim is barred by the applicable time 

limitation provisions of 5 U.S.C. § 8122(a).

ORDER

IT IS HEREBY ORDERED THAT the March 29, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 7, 2019

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