United States Department of Labor

Employees’ Compensation Appeals Board

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T.B., Appellant

and

DEPARTMENT OF THE NAVY, 

GUANTANAMO BAY FIRE DEPARTMENT, 

Guantanamo Bay, Cuba, Employer

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Docket No. 19-0323

Issued: August 23, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

On November 26, 2018 appellant filed a timely appeal from an October 22, 2018 decision 

of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards 

docketed the appeal as No. 19-0323.

On September 17, 2018 appellant, then a 48-year-old fire fighter captain, filed a traumatic 

injury claim (Form CA-1) alleging that on September 1, 2001 he injured his lower back when he 

picked up a three-inch diameter hose while in the performance of duty. On the claim form the 

employing establishment advised that appellant stopped work on August 13, 2018 and that it 

 

1 The Board notes that, following the October 22, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

received notice of the alleged injury on September 17, 2018. It controverted the claim indicating 

that it was untimely filed and that appellant was a foreign national.

2

In a development letter dated September 18, 2018, OWCP advised appellant that the 

evidence submitted was insufficient to establish that he provided timely notice of his alleged 

September 1, 2001 employment injury, that he was a Federal Civil Employee, or that he sustained 

an injury in the performance of duty. On the same letter it advised the employing establishment 

that “if the employee was treated at an agency medical facility for this injury, the employing 

[establishment] must provide the treatment notes directly to OWCP.” 

Appellant submitted medical evidence to the record from 2018. In an October 21, 2018 

supplemental statement, he related that he was transported to and received treatment at the U.S. 

Naval Hospital at the time of his September 1, 2001 back injury. Appellant noted that he received 

medical treatment from the U.S. Naval Hospital periodically over the years for his back condition. 

He advised that he filed the claim now as his back condition had worsened to the point where 

immediate surgery was necessary. 

By decision dated October 22, 2018, OWCP denied appellant’s traumatic injury claim, 

finding that it was untimely filed pursuant to 5 U.S.C. § 8122. 

The Board finds that this case is not in posture for decision. In his October 21, 2018 

statement, appellant related that he was transported to the U.S. Naval Hospital at the time of his 

September 1, 2001 back injury. FECA provides an exception to the three-year time limitation for 

filing a claim, indicating that a claim will be considered timely if a claimant’s immediate 

supervisor had actual knowledge of the injury within 30 days such that he or she was reasonably 

put on notice of an on-the-job injury or death. The Board has held that, when a claimant seeks 

treatment from the employing establishment’s health unit for a claimed condition, his or her 

supervisor is deemed to have actual knowledge of the claimed injury as of the date of the 

treatment.3 Although OWCP had requested that the employing establishment submit all records 

regarding appellant’s medical treatment at its employing establishment medical facilities to the 

record, at the time of the decision, the employing establishment had not submitted any evidence 

regarding appellant’s medical treatment at its facility for the alleged September 1, 2001 injury. 

Although it is a claimant’s burden of proof to establish his or her claim, OWCP is not a 

disinterested arbiter, but rather shares responsibility in the development of the evidence, 

particularly when such evidence is of the character normally obtained from the employing 

establishment or other government source.4 Since appellant’s allegations indicate that the 

employing establishment would have in its possession evidence relevant to timely notice of the 

 

2 5 U.S.C. § 8137 provides compensation to an employee or dependent who is neither a citizen nor a resident of the 

United States or Canada.

3 C.C., Docket No. 18-0912 (issued July 11, 2019); J.T., Docket No. 18-0220 (issued July 27, 2018); Robert E. 

Kimzey, 40 ECAB 762, 766 (1989).

4 See R.V., Docket 18-0268 (issued October 17, 2018). 
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alleged injury, it should obtain a response from the employing establishment regarding appellant’s 

medical records which are in its possession.5

The case will therefore be remanded to OWCP to obtain all medical records in the 

possession of the employing establishment pertaining to appellant’s alleged September 1, 2001 

employment injury. After such further development as deemed necessary, OWCP shall issue a 

de novo decision. Accordingly,

IT IS HEREBY ORDERED THAT the October 22, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action 

consistent with this order of the Board. 

Issued: August 23, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

5 See 20 C.F.R. § 10.117(a), which provides that an employing establishment that has reason to disagree with an 

aspect of the claimant’s report shall submit a statement to OWCP that specifically describes the factual allegation or 

argument with which it disagrees and provide evidence or argument to support its position. The employing 

establishment may include supporting documents such as witness statements, medical reports or records, or other

relevant information.