United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.H., Appellant

and

U.S. POSTAL SERVICE, KENMORE POST 

OFFICE, Buffalo, NY, Employer

__________________________________________

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Docket No. 21-1364

Issued: April 5, 2022

Appearances: Case Submitted on the Record

Daniel B. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 16, 2021 appellant, through counsel, filed a timely appeal from an April 23, 

2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(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 has met his burden of proof to establish that he filed a timely 

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

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

as set forth in the Board’s prior order are incorporated herein by reference. The relevant facts are 

as follows.

On November 1, 2017 appellant, then a 70-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he developed right knee osteoarthritis due to factors of 

his federal employment.

4

 He noted that he first became aware of his condition on June 6, 2007

and realized its relationship to his federal employment on August 24, 2017. On the reverse side 

of the claim form C.L., a human resource specialist for the employing establishment, noted that 

appellant was last exposed to the employment conditions alleged to have caused his disease or 

condition on January 9, 2004, the date he stopped work and did not return. She also reported that 

appellant first reported the condition to his supervisor on November 8, 2017. C.L. controverted 

appellant’s claim alleging that it was not timely filed within three years from the date of onset or 

last exposure. 

Appellant provided a statement dated July 18, 2017. He recounted that he had worked for 

the employing establishment for 24 years and described in detail his work duties as a mail handler 

and letter carrier. Appellant noted that his job was very physical and that in the winter months he 

would slip, trip, stumble, and fall like other letter carriers. He also recounted that he did not know 

when his arthritis started, but as he worked, his knee became painful to the point that he sought 

medical treatment. 

Appellant separated from federal employment due to disability, effective 

September 16, 2006.

Appellant provided reports dated September 9, 2005 through March 27, 2009 by

Dr. Mark S. Mieth, a Board-certified orthopedic surgeon. In treatment notes dated November 10

and 17, 2006, Dr. Mieth indicated that appellant was seen for follow up of bilateral knees 

degenerative joint disease. He noted a date of injury of January 9, 2004 and reported that the injury 

was “work-related.”

OWCP also received an August 24, 2017 report from Dr. Kevin Scott, a Board-certified 

orthopedic surgeon, who described appellant’s employment duties as a mail handler and letter 

carrier. Dr. Scott indicated that appellant developed osteoarthritis in his right knee and noted that 

appellant underwent a right knee scope in 1997. He opined that right knee osteoarthritis was 

aggravated by his work activities, including lifting, walking, and climbing, which he performed 

on a daily basis for over 24 years starting in 1980. 

3 Order Remanding Case, DocketNo. 19-1457 (issued July 17, 2020).

4 OWCP assigned the claim OWCP File No. xxxxxx925. Appellant previously filed a traumatic injury claim (Form 

CA-1) for a right shoulder injury related to a January 9, 2004 employment incident. He stopped work on that date and 

did not return. OWCP assigned that claim OWCP File No. xxxxxx673 and accepted it for right shoulder rotator cuff 

tear. 
3

In a development letter dated December 7, 2017, OWCP informed appellant of the 

deficiencies of his claim. It advised him of the type of factual and medical evidence necessary to 

establish his claim. OWCP noted that the evidence of record was insufficient to establish that he 

provided a timely notice of his employment injury and provided a questionnaire for his completion. 

In a separate development letter of even date, it requested that the employing establishment provide 

a statement from a supervisor and additional information regarding the accuracy of appellant’s 

alleged federal employment factors. OWCP provided both parties 30 days to respond. 

Appellant completed and submitted OWCP’s development questionnaire on 

December 19, 2017. He asserted that his claim was timely filed within three years that he became 

aware of the causal relationship between his condition and his federal employment. Appellant 

explained that he was not aware that his right knee condition was related to his employment until 

his examination with Dr. Scott on August 24, 2017 when Dr. Scott explained that his job duties 

contributed to the acceleration of his right knee arthritis. 

In a letter dated December 19, 2017, appellant, through counsel, also responded to 

OWCP’s development questionnaire. He alleged that, in his August 24, 2017 report, Dr. Scott 

provided a rationalized medical opinion establishing causal relationship between appellant’s right 

knee condition and his federal employment duties. 

By decision dated May 7, 2018, OWCP denied appellant’s occupational disease claim, 

finding that it was untimely filed. It determined that the evidence of record did not support that 

appellant filed his claim within three years of the date of injury or date of last exposure or that his 

supervisor had actual knowledge of the claimed condition within 30 days of the date of injury. 

On May 21, 2018 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review. The hearing was held on October 23, 2018. 

In a statement dated October 16, 2018, appellant explained that in 2006 he was being 

treated by Dr. Mieth for bilateral knee arthritis and a work-related right shoulder injury. He 

indicated that he knew that he had arthritis in his knees since 2004, but he did not know that his 

arthritis was work related because he never injured his knees at work and Dr. Mieth never informed 

him that his bilateral knees were work related. Appellant contended that he did not know that his 

bilateral knee arthritis was related to his federal employment until Dr. Scott examined him on 

August 24, 2017. 

In an October 23, 2018 memorandum, counsel alleged that OWCP improperly relied on

Dr. Mieth’s reports in determining that appellant knew or should have known of the relationship 

between his right knee osteoarthritis and his federal employment in 2006. He contended that the 

January 9, 2004 date of injury referred to appellant’s previously accepted right shoulder injury 

claim, not his diagnosed bilateral knee osteoarthritis.
4

By decision dated January 7, 2019, OWCP’s hearing representative affirmed the May 7, 

2018 decision.5

Appellant appealed to the Board. In a July 17, 2020 order, the Board set aside the 

January 7, 2019 decision and remanded the case for OWCP to administratively combine the 

current claim with appellant’s previous claim under OWCP File No. xxxxxx673, to be followed 

by a de novo decision.6 On August 28, 2020 OWCP administratively combined the claim files,

with OWCP File No. xxxxxx673 serving as the master file.

In an October 29, 2020 development letter, OWCP informed appellant of the deficiencies 

of his claim. It advised him as to the type of additional factual and medical evidence necessary to 

establish his claim and provided a questionnaire for completion. OWCP afforded him 30 days to 

provide the necessary information. 

Appellant submitted a completed development questionnaire dated November 18, 2020. 

He referred back to his July 18, 2017 statement for a description of his duties. Appellant also 

asserted that he was unaware of the relationship between his knee condition and his employment 

until he was informed by Dr. Scott on August 24, 2017. 

Counsel also responded to OWCP’s development letter on November 17, 2020. He alleged 

that appellant was unaware of the relationship between his employment activities and his right 

knee condition until his examination with Dr. Scott on August 24, 2017. Counsel contended that 

appellant filed his claim on November 1, 2017, which was within the three-year time limitation. 

By de novo decision dated December 9, 2020, OWCP denied appellant’s occupational 

disease claim, finding that the medical evidence of record was insufficient to establish that his 

diagnosed right knee condition was causally related to the accepted factors of his employment. 

On March 8, 2021 appellant, through counsel, requested reconsideration. He asserted that

Dr. Scott provided an unequivocal opinion establishing causal relationship between appellant’s 

right knee degenerative joint disease and the accepted factors of employment. 

By decision dated April 23, 2021, OWCP modified the December 9, 2020 decision and 

noted that the decision did not discuss whether appellant had timely filed his claim. It determined 

that the evidence of record established that appellant should have been aware in 2006 of a possible 

relationship between his bilateral knee condition and his federal employment. OWCP, therefore,

denied appellant’s claim because it was untimely filed.

5 Following the January 7, 2019 OWCP decision, appellant submitted a June 13, 2019 report by Dr.Mieth who 

noted right upper extremity examination findings of limited range of motion and assessed right shoulder osteoarthritis 

and right shoulder rotator cuff tear.

6

Supra note 3.
5

LEGAL PRECEDENT

An employee seeking benefits under FECA7 has the burden of proof to establish the 

essential elements of his or her claim, including 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,8that 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.9 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.10

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

precedes any determination on the merits of the claim.11 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.12

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 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.13 

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 his or 

her federal employment, the time limitation begins to run on the date of the last exposure to the 

implicated factors.14 Section 8122(b) of FECA 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 

7

Supra note 2.

8 D.D., Docket No. 19-1715 (issued December 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 

59 ECAB 178 (2007); JoeD. Cameron, 41 ECAB 153 (1989). 

9 Y.G., Docket No. 20-0688 (issued November 13, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018); 

R.C., 59 ECAB 427 (2008); James E.Chadden, Sr., 40 ECAB 312 (1988).

10 C.H., Docket No. 19-1781 (issued November 13, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016); 

L.M., Docket No. 13-1402 (issued February 7, 2014); DeloresC.Ellyett, 41 ECAB 992 (1990). 

11 R.T., Docket No. 18-1590 (issued February 15, 2019); Charles Walker, 55 ECAB 238 (2004); see Charles W. 

Bishop, 6 ECAB 571 (1954).

12 5 U.S.C. § 8122(a); F.F., Docket No. 19-1594 (issued March 12, 2020); W.L., 59 ECAB 362 (2008).

13 See A.M., Docket No. 19-1345 (issued January 28, 2020); LarryE. Young, 52 ECAB 264 (2001). 

14 Federal (FECA) Procedure Manual, Part 2 --Claims,Time, Chapter 2.801.6 (March 1993); see also S.O., Docket 

No. 19-0917 (issued December 9, 2019).
6

compensable disability.15 It is the employee’s burden of proof to establish that a claim is timely 

filed.16

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 8119.17 The knowledge must be such as to put the 

immediate superior reasonably on notice of an on-the-job injury or death.18

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish that he filed a 

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

Appellant submitted an occupational disease claim on November 11, 2017 alleging that he 

developed bilateral knee osteoarthritis due to factors of his federal employment. The evidence of 

record establishes that appellant was last exposed to the allegedly causative factors of employment 

on January 9, 2004 when he stopped work due to a work-related shoulder injury. Since he filed 

his occupational disease claim on November 11, 2017, his claim was filed outside the three-year 

time limitation period set forth in section 8122(a) of FECA.19

Appellant indicated on his Form CA-2 that he first realized the relationship between his 

condition and his federal employment on August 24, 2017. He alleged that he was not aware of 

the possible relationship between his condition and his federal employment until Dr. Scott 

examined him on August 24, 2017 and informed him that his job duties contributed to his right 

knee arthritis. The Board finds, however, that since appellant began receiving medical treatment 

for his bilateral knee osteoarthritis as early as 2005, appellant knew or reasonably should have 

known of a relationship between his diagnosed bilateral knee conditions and his federal 

employment before August 24, 2017. 

In L.H.,20 the Board determined that the medical evidence of record established that the 

claimant knew or reasonably should have known of the relationship between her foot conditions 

and her federal employment by December 2007. It noted that the claimant was diagnosed with 

bilateral plantar fasciitis on November 30, 2007 and that a series of treatment notes dated after 

November 30, 2007 each listed the diagnosis and recommended that she remain off work. 

15 5 U.S.C. § 8122(b).

16 A.S., Docket No. 18-1094 (issued February 7, 2019); Gerald A. Preston, 57 ECAB 270 (2005).

17 5 U.S.C. §§ 8122(a)(1), 8122(a)(2); see also LarryE. Young, supra note 13.

18 R.H., Docket No. 17-0251 (issued November 28, 2018); B.H., Docket No. 15-0970 (issued August17, 2015).

19 R.T., supra note 11.

20 Docket No. 19-0818 (issued December 9, 2019).
7

Similarly, in J.E.,21 the Board found that the claimant was aware or should have been aware that 

her claimed bilateral foot injury was due to factors of federal employment before 2015 because the 

medical evidence demonstrated that appellant began receiving medical treatment for her bilateral 

foot condition beginning in 2002 during her employment and continued to receive treatment after 

she stopped working in 2009. 

Likewise, in this present case, the medical evidence of record demonstrates that appellant 

began receiving medical treatment for bilateral knee degenerative joint disease as early as 

September 9, 2005 and continued to receive medical treatment for his bilateral knee condition until 

March 27, 2009. Treatment notes dated November 10 and 17, 2006 also provide a diagnosis of 

bilateral knee degenerative joint disease and indicate that the injury was work related. Appellant 

further indicated in his July 18, 2017 statement that he sought medical treatment because his knee 

became painful as he worked. The Board has previously held that when an employee becomes 

aware or reasonably should have become aware, that he has a condition which has been adversely 

affected by factors of his employment, such awareness is competent to start the running of the time 

limitations period, even though he does not know the precise nature of the impairment, or whether 

the ultimate result of such adverse effect would be temporary or permanent. 22 In discussing the 

degree of knowledge required by the employee prior to filing a claim, the Board emphasized that 

he need only be aware of a possible relationship between his condition and his 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.23 As appellant 

acknowledged that his knee began to be painful at work and the medical evidence demonstrated 

that he sought medical treatment for his bilateral knee condition as early as September 2005, the 

Board finds that appellant knew, or reasonably should have known, as early as 2006 that, his 

bilateral knee condition was due to federal employment factors. 

Appellant’s claim would still be regarded as timely under FECA if his immediate 

supervisor had actual knowledge of his injury and any possible relation to his federal employment 

within 30 days, or if written notice of injury was given to his immediate supervisor within 30 days 

of injury.24 In the present case, the Board finds that there is no evidence of record that appellant’s 

immediate supervisor had actual knowledge of the injury and its possible relation to his federal 

employment within 30 days of the alleged injury, or that appellant provided written notice of injury 

within 30 days of the injury.25 On the reverse side of the claim form the employing establishment 

indicated that appellant first reported his condition on November 8, 2017. As the evidence of 

record is insufficient to establish actual knowledge by appellant’s supervisor of a work-related 

injury within 30 days, the Board finds that he has not established a timely claim.

21 Docket No. 16-1493 (issued May 7, 2018).

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

23 C.S., Docket No. 18-0009 (issued March 22, 2018); Edward Lewis Maslowski, 42 ECAB 839 (1991).

24 Supra note 16.

25 See W.P., Docket No. 21-0107 (issued May 4, 2021); see also C.S., supra note 23.
8

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 his burden of proof to establish that he filed a 

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

ORDER

IT IS HEREBY ORDERED THAT the April 23, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 5, 2022

Washington, DC

Alec J. Koromilas, 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