United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS,

W.G. (BILL HEFNER) VETERANS 

ADMINISTRATION MEDICAL CENTER, 

Salisbury, NC, Employer

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Docket No. 19-0738

Issued: October 21, 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 February 12, 2019 appellant filed a timely appeal from a November 26, 2018 and 

January 8, 2019 decisions of the Office of Workers’ Compensation Programs (OWCP). The Clerk 

of the Appellate Boards docketed the appeal as No. 19-0738.

On July 14, 2018 appellant, then a 54-year-old retired nursing assistant, filed an 

occupational disease claim (Form CA-2) alleging that she developed ruptured discs and nerve 

damage in her neck as a result of factors of her federal employment including lifting, pulling, and 

pushing patients. She first became aware of her condition and its relationship to her federal 

employment on January 18, 2006. Appellant explained that she reported her condition in 2006, 

but that “other claims were being denied” and she “didn’t think it would be approved,” so a claim 

was never filed.1 On the reverse side of the claim form, a supervisor noted that appellant first 

received medical care in September 2006 and retired on April 11, 2007.

 

1 The record demonstrates that appellant filed at least one prior claim with the same date of injury of 

January 18, 2006, but that file is not presently before the Board and the contents of that claim file are not available for 

review.
2

By decision dated August 15, 2018, OWCP denied appellant’s occupational disease claim 

finding that although she had submitted a timely claim and that the employment factors occurred 

as described, she had not submitted medical evidence containing a medical diagnosis in connection 

with her federal employment duties. Appellant requested reconsideration on September 20, 2018. 

By decision dated November 26, 2018, OWCP denied modification of the August 15, 2018 

decision. On December 24, 2018 appellant again requested reconsideration. By decision dated 

January 8, 2019, OWCP denied reconsideration without reviewing the merits of her claim.

The Board has duly considered the matter and finds that this case is not in posture for

decision. 

The issue of whether a claim was timely filed is a preliminary jurisdictional issue that 

precedes any determination on the merits of the claim.2 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.3 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 federal 

employment. Such awareness is competent to start the 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.4 Section 8122(b) provides that, in latent disability cases, the 

time limitation 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 The Board has emphasized that an employee need only be aware of a 

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

running of the applicable statute of limitations,6 and that, if an employee continues to be exposed 

to injurious working conditions after such awareness, the time limitation begins to run on the last 

date of this exposure.7 Even if a claim is not filed within the three-year period of limitation, it 

would still be regarded as timely under section 8122(a)(1) if the immediate superior had actual 

knowledge of his or her alleged employment-related injury within 30 days or written notice of the 

injury was provided within 30 days pursuant to section 8119.8 The knowledge must be such as to 

put the immediate superior reasonably on notice of an on-the-job injury or death.9 It is the 

 

2 R.T., Docket No. 18-1590 (issued February 15, 2019); see Charles W. Bishop, 6 ECAB 571 (1954).

3

Id.

4

See R.T., supra note 2.

5

5 U.S.C. § 8122(b).

6 R.T., supra note 2.

7 D.R., Docket No. 18-1754 (issued April4, 2019).

8

5 U.S.C. §§ 8122(a)(1), 8122(a)(2).

9 D.R., supra note 7.
3

employee’s burden of proof to establish that a claim is timely filed.10 Furthermore, OWCP’s 

procedures contemplate that duplicate cases should not be created and that development should 

not occur under the duplicate case.11

In deciding matters pertaining to a given claimant’s entitlement to compensation benefits, 

OWCP is required by statute and regulation to make proper findings of fact.12 Its procedure further 

specifies that a final decision of OWCP should be clear and detailed so that the reader understands 

the reasons for the disallowance of the benefit.13 These requirements are supported by Board 

precedent.14

The Board finds that OWCP’s November 26, 2018 decision, affirming its prior August 15, 

2018 decision, failed to make adequate findings on the issues presented. The November 26, 2018 

decision, affirming the prior August 15, 2018 decision, treated appellant’s claim as having been 

timely filed, but did not provide regarding basis for this finding, despite appellant’s date of filing, 

July 14, 2018, being over three years after appellant’s last exposure to employment factors on 

April 11, 2007.15 The record is unclear as to whether appellant’s immediate superior had actual 

knowledge of her alleged employment-related injury within 30 days or whether written notice of 

the injury was provided within 30 days.16 Moreover, the record is unclear as to whether the present 

claim is a duplicate of appellant’s prior claims with a date of injury of January 18, 2006.17

The Board therefore finds that the case must be remanded fora decision, which includes 

findings of fact and a clear and precise statement regarding why OWCP found that appellant’s 

claim was timely filed and whether this claim constitutes a duplicate case. Following this and 

other such further development as OWCP deems necessary, it shall issue an appropriate decision. 18

 

10 A.S., Docket No. 18-1094 (issued February 7, 2019).

11 See Federal (FECA) Procedure Manual, Part 1 -- Mail and Files, Duplicate Cases, Chapter 1.400.7 

(February 2000); see also T.M., Docket No. 13-1310 (issued January 2, 2014); W.M., Docket No. 09-1609 (issued 

April 5, 2010).

12 5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of facts and make an award for or 

against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP shall 

contain findings of fact and a statement of reasons.

13 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

14 See James D. Boller, Jr., 12 ECAB 45, 46 (1960); see also J.N., Docket No. 17-1408 (issued December 11, 

2017); R.B., Docket No. 16-1696 (issued September 7, 2017).

15 See D.S.,Docket No. 18-0208 (issued May 4, 2018); J.N., id.

16 See supra note 8.

17 See M.S., Docket No. 13-1024 (issued January 14, 2014).

18 Given the disposition of this order on the preliminary issue of timeliness, the issue of whether OWCP properly 

denied appellant’s request for reconsideration is moot. See P.L.,Docket No. 16-0631 (issued August9, 2016); D.A., 

Docket No. 14-0546 (issued October 6, 2014); L.G., Docket No. 13-1950 (issued January 28, 2014).
4

IT IS HEREBY ORDERED THAT the January 8, 2019 and November 26, 2018 

decisions of the Office of Workers’ Compensation Programs are set aside and the case is remanded 

for further proceedings consistent with this order of the Board.

Issued: October 21, 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