United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.M., Appellant

and

GENERAL SERVICES ADMINISTRATION, 

CHIEF FINANCE OFFICE, Kansas City, MO, 

Employer

__________________________________________

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Docket No. 19-1898

Issued: October 23, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On September 13, 2019 appellant filed a timely appeal from a June 14, 2019 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

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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

ISSUE

The issue is whether appellant has met her burden of proof to establish that she filed a 

timely claim for compensation pursuant to 5 U.S.C. § 8122(a).

FACTUAL HISTORY

On May 15, 2018 appellant, then a 66-year-old accounting technician, filed an occupational 

disease claim (Form CA-2) alleging that she developed “cancer (all) acute lymphoblastic 

leukemia” due to factors of her federal employment, including exposure to various hazardous 

chemicals. She noted that she first became aware of her condition in “early 2000” and 

“April 2004” and first realized its relation to her federal employment on November 3, 2014. 

Appellant did not stop work. On the reverse side of the claim form, the employing establishment

controverted her claim on the basis that it was untimely filed.

Appellant submitted medical evidence in support of her claim. On November 3, 2014 she 

was admitted to the hospital after multiple episodes of vomiting and associated weight loss. 

Appellant underwent a biopsy and was diagnosed with acute B-cell lymphoblastic leukemia. She 

was treated with chemotherapy and subsequently discharged on December 1, 2014.

In a development letter dated June 21, 2018, OWCP informed appellant that the evidence 

of record was insufficient to establish her claim. It advised her of the type of medical and factual 

evidence necessary to support her claim and provided a questionnaire for her completion regarding 

whether her claim was timely filed. The questionnaire advised that appellant must submit evidence 

which establishes that her claim was filed within three years of the date she became aware of a 

relationship between her condition and her employment. By separate development letter of even 

date, OWCP requested additional information from the employing establishment, including 

comments from a knowledgeable supervisor on the accuracy of all statements provided by 

appellant relative to this claim. It afforded both parties 30 days to respond.

Appellant subsequently submitted evidence detailing her federal employment, including 

her roles as a shipment clerk and an accounting technician at the employing establishment for the 

period September 2, 1980 through December 30, 1989. 

By decision dated September 6, 2018, OWCP denied appellant’s claim finding that she did 

not file a timely claim within the requisite three-year time limit provided under 5 U.S.C. § 8122. 

It found that her date of last exposure was December 30, 1989 and that she did not file her 

occupational disease claim until May 15, 2018, more than three years after November 3, 2014, the

date she indicated that she first realized her condition was related to her federal employment.

On October 10, 2018 appellant requested reconsideration and submitted additional 

evidence. 

In a September 20, 2018 report, Mary Luder, an advanced practice registered nurse,

indicated that appellant was officially diagnosed via bone marrow biopsy on November 5, 2014. 

She noted that she could not say with certainty that the exposure was the cause or trigger of 

appellant’s cancer. 
3

Appellant also submitted a narrative statement asserting that she was diagnosed with a form 

of cancer that was mainly found in children and she did not file a claim within three years because 

she had been misdiagnosed until her illness worsened and she was admitted to Kansas University 

Medical Center.

In an e-mail dated January 8, 2019, the employing establishment notified OWCP that it 

had no evidence that appellant’s immediate supervisor had actual knowledge of her condition 

within 30 days of the date of injury.

By decision dated January 8, 2019, OWCP denied modification of its September 6, 2018 

decision. 

On April 9, 2019 appellant requested reconsideration. In an attached narrative statement,

she summarized her medical history and indicated that on November 3, 2014 she had been 

admitted to the hospital due to a worsening of her condition. Appellant noted that her doctor 

inquired whether she had worked around any chemicals. The doctor subsequently diagnosed her 

with leukemia and went on to say that this type of leukemia was the type they found in small 

children. Appellant indicated that she was unable to notify her supervisor of her illness because 

her employment had ended on December 30, 1989. She subsequently contacted the employing 

establishment and inquired about how to file a claim and then she filed.

By decision dated June 14, 2019, OWCP denied modification of its January 8, 2019 

decision because the submitted evidence was insufficient to establish that her claim was timely 

filed.

LEGAL PRECEDENT

An employee seeking benefits under FECA

3 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation of FECA,4that an injury was sustained in the performance of duty as alleged, and 

that any disability or medical condition for which compensation is claimed is causally related to 

the employment injury.5 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6

 

3 Supra note 1.

4 G.L., Docket No. 18-1057 (issued April 14, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

5 M.G., Docket No. 18-1616 (issued April 9, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 

312 (1988).

6 20 C.F.R. § 10.115; A.S., Docket No. 19-1955 (issued April 9, 2020); L.M., Docket No. 13-1402 (issued 

February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
4

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

precedes any determination on the merits of the claim.7 In cases of injury on or after September 7, 

1974, section 8122(a) of FECA provides that an original claim for compensation, disability, or 

death, must be filed within three years after the injury or death.8

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.9 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.

10

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.11 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,12 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.13

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 supervisor 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 8119.14 The knowledge must be such as to put the 

immediate superior reasonably on notice of an on-the-job injury or death.15

 

7 F.F., Docket No. 19-1594 (issued March 12, 2020); Charles W. Bishop, 6 ECAB 571 (1954).

8 5 U.S.C. § 8122(a); A.M., Docket No. 19-1345 (issued January 28, 2020); W.L., 59 ECAB 362 (2008).

9 S.O., Docket No. 19-0917 (issued December 19, 2019); Larry E. Young, 52 ECAB 264 (2001).

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6 (March 1993); see also G.M., Docket 

No. 18-0768 (issued October 4, 2018).

11 5 U.S.C. § 8122(b).

12 D.D., Docket No. 19-0548 (issued December 16, 2019); Gerald A. Preston, 57 ECAB 270 (2005).

13 D.R., Docket No. 18-1754 (issued April 4, 2019); Mitchel Murray, 53 ECAB 601 (2002); Garyleane A. Williams,

44 ECAB 441 (1993).

14 5 U.S.C. §§ 8122(a)(1), 8122(a)(2); see also Larry E. Young, supra note 9.

15 R.H., Docket No. 17-0251 (issued November 28, 2018); B.H., Docket No. 15-0970 (issued August 17, 2015).
5

It is the employee’s burden of proof to establish that a claim is timely filed.

16

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish that she filed a 

timely claim for compensation pursuant to 5 U.S.C. § 8122(a).

Appellant was employed by the employing establishment from September 2, 1980 to 

December 30, 1989. On May 15, 2018 she filed a Form CA-2 indicating that she first became 

aware of her condition in “early 2000” and “April 2004” and realized its relation to her federal 

employment on November 3, 2014. Because appellant did not file her occupational disease claim 

until May 15, 2018, more than three years after she first became aware that her condition was 

related to her federal employment on November 3, 2014, the Board finds that she untimely filed 

her claim.17

Appellant, therefore, has not established that this occupational disease claim was timely 

filed.18

On appeal appellant reiterates that during the course of her illness she was not aware that 

her illness was employment related until she was hospitalized for 30 days and was asked by one 

of her physicians if she had ever worked around chemicals. As explained above, the Board finds 

that she has not established that she timely filed her occupational disease claim. 

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 has not met her burden of proof to establish that she filed a 

timely claim for compensation pursuant to 5 U.S.C. § 8122(a).

 

16 A.S., supra note 6.

17 D.R., supra note 13.

18 D.D., Docket No. 19-0548 (issued December 16, 2019); R.T., Docket No. 18-1590 (issued February 15, 2019).
6

ORDER

IT IS HEREBY ORDERED THAT the June 14, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: October 23, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board