United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.E., Appellant

and

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, CLAREMORE INDIAN 

HOSPITAL, Claremore, OK, Employer

__________________________________________

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Docket No. 16-1493

Issued: May 7, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 12, 2016 appellant filed a timely appeal from a February 24, 2016 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.2

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).

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted new evidence on appeal. The Board’s review jurisdiction is limited to 

the evidence which was t before OWCP at the time it issued its final decision. Therefore, the Board is precluded from 

reviewing this new evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).
2

FACTUAL HISTORY

On October 26, 2015 appellant, then a 61-year-old former nurse aide/scrub technician, filed 

an occupational disease claim (Form CA-2) alleging that, on April 1, 2015, she first realized that 

her bilateral calcaneal spurs and bilateral plantar fasciitis were caused by performing her work 

duties for 16 years on concrete and hard surface floors.3 She explained that her claim was not filed 

within 30 days of her claimed injury because she had only recently realized the extent and cause 

of her bilateral foot pain and discomfort after a discussion with her physician. In an accompanying 

undated narrative statement, appellant again alleged that she sustained a work-related bilateral foot 

injury. She described her work schedule and work duties and listed the physicians who treated her 

bilateral foot pain. Appellant indicated that she first sought medical treatment for her bilateral foot 

pain in 2002 from a Dr. Neville. She noted that she was also treated by Dr. Margiotta and

Dr. Jones. In 2013 appellant was treated by Dr. Lashley, Dr. Green, and Dr. Burke.

4

 She related 

that Dr. Jones and Dr. Lashley performed injections to treat her bilateral foot pain. Appellant

further related that she was provided with inserts and referred to physical therapy for ultrasound 

treatment of her feet by Dr. Green.

A notification of personnel action (Form SF-50) dated August 4, 2009 indicated that 

appellant was removed from the employing establishment effective July 10, 2009 due to her 

medical inabilty to perform her work duties.

In a December 1, 2015 medical report, Dr. John W. Ellis, a Board-certified family 

practitioner, noted that he initially examined appellant regarding her foot conditions on 

October 14, 2015. He provided her history and reviewed medical records noting that she began 

having pain in the bottom of both feet in 2006 for which she was diagnosed with plantar fasciitis 

and had physical therapy for the condition until April 2015, after which she stopped treatment due 

to the death of her mother and having to attend to matters associated with this. Dr. Ellis reported 

findings on examination of both feet and diagnosed right and left plantar fasciitis and right and left 

calcaneal spurs. He opined that, based on his examination, review of the medical records and other 

records, his education, training, and experience, and upon reasonable medical certainty, it was 

more probable than not that the diagnosed conditions were caused or aggravated by appellant’s 

federal employment. Dr. Ellis explained that many years of standing as a nurse’s aide and 

especially as a scrub technician, which required standing in one position for prolonged periods, 

had caused the plantar fascia in her feet to become inflamed which caused plantar fasciitis. He

further explained that prolonged standing also had contributed to the calcaneal spurs in both feet. 

Dr. Ellis noted that the calcaneal spurs were a normal process of aging. He related that they were 

aggravated by prolonged standing in appellant’s noted positions. Dr. Ellis indicated that calcaneal 

spurs did not necessarily cause plantar fasciitis. He concluded that plantar fasciitis was separate 

from calcaneal spurs and aging process.

 

3 The Board notes that appellant filed a second Form CA-2 on December 27, 2015 for the same bilateral foot 

conditions as requested by OWCP because she did not submit the first Form CA-2 through her employing 

establishment.

4 The Board notes that the professional qualifications of Drs. Neville, Margiotta, Jones, Lashley, Green, and Burke 

are not contained in the case record.
3

In a January 22, 2016 development letter, OWCP advised appellant that the evidence 

submitted was insufficient to establish her claim. It informed her that the evidence was not 

sufficient to show that she timely filed her claim and also advised her of the medical and factual 

evidence needed to establish her claim. Appellant was afforded 30 days to submit such evidence. 

She did not submit additional evidence within the allotted time.

In a February 24, 2016 decision, OWCP denied appellant’s claim for compensation, 

finding that she failed to file a timely claim within the requisite three years under section 8122 of 

FECA. It found that the date of injury was July 10, 2009, the date she last worked at the employing 

establishment, and that her claim for compensation was not filed until October 26, 2015. OWCP 

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

knowledge within 30 days of the day of injury.

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.5 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.6

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.7 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.8 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.9 It is the 

employee’s burden to establish that a claim is timely filed.

10

ANALYSIS

The Board finds that appellant’s occupational disease claim was untimely filed.

 

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

6 W.L., 59 ECAB 362 (2008); Gerald A. Preston, 57 ECAB 270 (2005); Laura L. Harrison, 52 ECAB 515 (2001).

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

8

Id.

9 5 U.S.C. § 8122(b).

10 Gerald A. Preston, 57 ECAB 270 (2005); Debra Young Bruce, 52 ECAB 315 (2001).
4

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

employment occurred on July 10, 2009. She filed her occupational disease claim on October 26, 

2015, more than three years after the date of last exposure. Consequently, appellant filed her claim 

outside the three-year time limitation period.11

Appellant has alleged that she did not become aware of the connection between her bilateral 

calcaneal spurs and bilateral plantar fasciitis and factors of her federal employment until April 1, 

2015, when she had a discussion with her physician regarding the extent and cause of her 

conditions. The Board notes that appellant did not specify the precise date of the discussion with 

her physician that led to her awareness of the cause of her conditions. Appellant submitted

Dr. Ellis’ December 1, 2015 report, which was based on an October 14, 2015 initial examination 

and referenced treatment appellant had for her foot conditions in April 2015. Dr. Ellis diagnosed

right and left plantar fasciitis and right and left calcaneal spurs. He opined that the diagnosed 

conditions were aggravated or caused by appellant’s nurse aide and scrub technician work duties. 

The Board finds, however, that Dr. Ellis’ December 1, 2015 report is insufficient to establish that 

appellant was aware of her bilateral foot conditions only as of April 1, 2015. A review of the 

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

aware, of the causal relationship between her employment exposure and her bilateral foot 

conditions as early as 2002. Appellant’s own statements confirm that she knew or reasonably 

should have known of the relationship between her bilateral foot conditions and the factors of her 

federal employment in 2002, prior to her initial evaluation by Dr. Ellis on October 14, 2015. In 

her undated statement, appellant noted that she sought medical treatment from six physicians 

beginning in 2002 for her bilateral foot pain which she attributed to her nurse aide and scrub 

technician work duties and claimed caused her to stop working in July 2009. She related that she 

first sought medical treatment in 2002 from a Dr. Neville. Appellant related that she was also 

treated by Dr. Margiotta and Dr. Jones. She reported that in 2013 she was treated by Dr. Lashley,

Dr. Green, and Dr. Burke. Appellant indicated that Dr. Jones and Dr. Lashley performed 

injections to treat her bilateral foot pain and Dr. Green provided her with inserts and referred her 

to physical therapy for ultrasound treatment of her feet. 

Because appellant stated that she sought treatment for her bilateral foot condition on dates 

prior to consulting Dr. Ellis in October 2015, it is her burden to prove that her claim was filed 

within three years of the date she first became aware, or should have been aware, that she had a 

bilateral foot condition.12 Appellant contended that she was not aware that her bilateral foot 

conditions were due to her employment until April 1, 2015. The Board notes that while specific 

bilateral foot diagnoses were not made until December 15, 2015 by Dr. Ellis, appellant reported 

receiving medical treatment for her bilateral foot pain which she attributed to her work duties as 

early as 2002 with Dr. Neville. 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 

 

11 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).

12 See cases cited, supra note 10.
5

permanent.13 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 limitations. The 

Board has not required that appellant have definitive evidence of a condition and causal 

relationship on the date the claim is filed.14 

Appellant experienced and was treated on multiple occasions for ongoing bilateral foot 

problems, which she attributed to her work activities, by six different physicians beginning in 2002 

during her period of employment and continued to receive treatment after she stopped working at 

the employing establishment in 2009. 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 

2002 that her claimed bilateral foot injury was due to federal employment factors.15

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

FECA if her 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.16 Additionally, the claim would be deemed timely if written notice of injury or 

death was provided within 30 days.17

In the present case, 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 any information to substantiate that management was aware that her 

bilateral foot conditions were causally related to her federal employment. There was no statement 

from a supervisor establishing knowledge of a work-related injury.18 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.19 Therefore, the 

Board finds that appellant has not established actual knowledge by her supervisors of her workrelated conditions within 30 days, and therefore, has not established a timely claim. Further, the 

 

13 Larry E. Young, supra note 7.

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

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

16 5 U.S.C. § 8122(a)(1); see Jose Salaz, 41 ECAB 743, 746 (1990); Kathryn A. Bernal, 38 ECAB 470, 472 (1987).

17 Id. at § 8122(a)(1) and (2).

18 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).

19 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).
6

Board finds that the record is devoid of any indication that appellant’s immediate supervisors had 

written notice of her work-related injury within 30 days. The exceptions to the statute have not 

been met, and thus, appellant has failed to establish that she filed a timely claim on 

October 26, 2015.20

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 February 24, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 7, 2018

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

 

20 See cases cited supra note 15.