United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.J., son of W.H. SR., Appellant

and

DEPARTMENT OF THE ARMY, RED RIVER 

ARMY DEPOT, Texarkana, TX, Employer

__________________________________________

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Docket No. 19-1409

Issued: March 9, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 10, 2019 appellant filed a timely appeal from a May 20, 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

ISSUE

The issue is whether appellant has filed a timely claim for death benefits in accordance 

with 5 U.S.C. § 8122. 

 

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

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 decision are incorporated herein by reference. The relevant facts 

are as follows.

On May 8, 2017 appellant, the employee’s son, filed a claim for survivor’s benefits (Form 

CA-5), alleging that asbestos exposure caused the employee’s December 19, 2001 death. By 

decision dated August 4, 2017, OWCP denied the claim, finding that it was untimely filed. On 

August 14, 2017 appellant requested a hearing before OWCP’s Branch of Hearings and Review. 

During the January 10, 2018 hearing, he asserted that he was incompetent to timely file a claim. 

The hearing representative advised him to submit evidence substantiating that he was incompetent. 

By decision dated March 12, 2018, the hearing representative found that, in accordance with 

section 8122 of FECA, the claim was untimely filed.

Appellant appealed to the Board on March 23, 2018. By decision dated December 21, 

2018, the Board found that appellant’s claim was barred by the applicable time limitations of 

FECA.4 The Board reviewed the evidence of record and specifically found that the claim had not 

been filed within three years of the employee’s death and that appellant had not met his burden of 

proof to establish any applicable statutory exception to the three-year time limitation. 

On March 7, 2019 appellant requested that OWCP reconsider the case. He maintained that,

due to a mental impairment, he was incompetent to timely file a claim. In support of his request,

he submitted an unsigned August 8, 2003 “request to be selected as payee” for his Social Security 

Administration (SSA) Supplemental Security Income (SSI) benefits completed by D.C., identified 

as his mother. This document indicated that appellant needed a payee because he had a mental 

impairment. Appellant also submitted a payroll change slip for the employee dated July 9, 1974, 

a health benefits registration form for the employee with an illegible date of election, a notification 

of personnel action (SF-50) for the employee dated March 2, 1952, appointment affidavits form 

(SF-61) signed with an “x” by the employee on March 26, 1952,

5

and an obituary dated 

October 26, 2008 for P.F.6

By decision dated May 20, 2019, OWCP denied modification of its prior decision. It found 

the evidence submitted was insufficient to support that appellant was incompetent or incapable to 

timely file a claim.7

 

3 Docket No. 18-0910 (issued December 21, 2018). 

4

Id.

5 Appellant also submitted a copy of the employee’s November 25, 1998 chest x-ray, previously of record. 

6 On appeal appellant indicated that P.F. had been the employee’s supervisor. 

7 OWCP initially issued a merit decision on May 16, 2019 that was superseded by the May 20, 2019 decision. The 

May 16, 2019 decision misidentified appellant as the employee. 
3

LEGAL PRECEDENT

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

precedes any determination on the merits of the claim.8 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.9 In the case of death due to a latent 

disability, the time for filing a death claim does not begin to run until the employee has died and 

his survivors are aware of or by the exercise of reasonable diligence should have been aware of 

the causal relationship of the employee’s death to factors of his employment.10 

The three-year limit on filing a claim for compensation does not apply in the following 

limited circumstances: (1) the employee’s direct supervisor had actual knowledge that created 

reasonable notice of an on-the-job injury or death within 30 days;11 (2) an employee or survivor 

gave formal written notice within 30 days of becoming aware that the injury or death was causally 

related to the federal employment;12 (3) the employee filed a timely disability claim for a workrelated injury or disability and the employee’s death is based on the same injury;13 and (4) the 

claimant is under 21 years old, the claimant is incompetent and has no legal representative, or the 

claimant is prevented from giving notice by exceptional circumstances.14 Lack of awareness of 

possible entitlement, lack of information or ignorance of the law or one’s rights and obligations 

under it do not constitute exceptional circumstances that excuse a failure to file a timely claim.15 

Section 8122(d)(3) of FECA provides that time limitations for filing a claim “do not run against 

any individual whose failure to comply is excused by the Secretary on the grounds that such notice 

could not be given because of exceptional circumstances.”

16

Section 8119 of FECA provides that: a notice of injury or death shall be given within 30 

days after the injury or death; be given to the immediate superior of the employee by personal 

delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the 

name and address of the employee; state the year, month, day, and hour when and the particular 

locality where the injury or death occurred; state the cause and nature of the injury, or in the case 

of death, the employment factors believed to be the cause; and be signed by and contain the address 

 

8 A.M., Docket No. 19-1345 (issued January 28, 2020).

9 5 U.S.C. § 8122(a); D.D., Docket No. 19-0548 (issued December 16, 2019).

10 5 U.S.C. § 8122(b); M.S. (M.S.), Docket No. 14-0930 (issued February 25, 2015).

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Death Claims, Chapter 2.700.5.b (November 1996).

12 5 U.S.C. § 8122(a), (b); Federal (FECA) Procedure Manual, id. at Chapter 2.700.5.b(1).

13 Id. at § 8122(c).

14 Id. at § 8122(d).

15 M.S. (M.S.), supra note 10.

16 5 U.S.C. § 8122(d)(3).
4

of the individual giving the notice.17 Actual knowledge and written notice of injury under section 

8119 serve to satisfy the statutory period for filing an original claim for compensation.18 For actual 

knowledge of a supervisor to be regarded as timely filing, a claimant must show not only that the 

immediate superior knew that he or she was injured, but also knew or reasonably should have 

known that it was an on-the-job injury.19 

ANALYSIS

The Board finds that appellant has not established that he filed a timely claim for death 

benefits in accordance with 5 U.S.C. § 8122.

Preliminarily, the Board notes that it is unnecessary to consider the evidence appellant 

submitted prior to the issuance of OWCP’s March 12, 2018 decision because the Board considered 

that evidence in its December 21, 2018 decision. Findings made in prior Board decisions are res 

judicata absent any further review by OWCP under section 8128 of FECA.20

The time to file a claim began to run on December 19, 2001, the date of the employee’s 

death. As appellant filed his claim for death benefits on May 8, 2017, his claim was not timely 

filed within the three-year time limitation.21

Although appellant has not established that he filed within the three-year limitation, his 

claim could still be considered timely if he met any of the statutory exceptions. The Board finds, 

however, that an exception has not been established by the evidence of record.

While, as in his previous appeal, appellant is maintaining that he was incompetent to timely 

file a claim, there is no probative medical evidence of record to support this assertion. The only 

evidence submitted to OWCP on reconsideration that addresses incompetency at all, is the SSA 

document dated August 8, 2003 in which his mother requests to be selected as payee for appellant’s

SSI benefits because he has a mental impairment. OWCP’s procedures provide that the time 

limitations do not begin to run while the claimant is incompetent and has no duly appointed legal 

representative.22 It further provides that a determination of incompetence must be based on 

probative medical evidence and must be consistent with other actions by the claimant during the 

period in question.23 The additional SSA payee document reflects appellant’s mother recitation

 

17 Id. at § 8119; T.D. (S.B.), Docket No. 18-1071 (issued January 16, 2019).

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

19 5 U.S.C. § 8122(b); see S.O., Docket No. 19-0917 (issued December 19, 2019).

20 See C.H., Docket No. 19-0669 (issued October 9, 2019); J.D., Docket No. 18-1765 (issued June 11, 2019); J.L., 

Docket No. 17-1460 (issued December 21, 2018).

21 5 U.S.C. § 8122.

22 Federal (FECA) Procedure Manual, Part 2 -- Claims, Special Circumstances, Chapter 2.801.8.b (March 1993); 

see V.M., Docket No. 12-1611 (issued January 17, 2013); Paul S. Devlin, 39 ECAB 715 (1988).

23 Id.
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that he had a mental impairment, but no accompanying medical evidence establishing 

incompetency.

24

The additional documents received by OWCP with appellant’s reconsideration request, 

including that payroll change slip for the employee dated July 9, 1974, a health benefits registration 

form for the employee with an illegible date of election, and a notification of personnel action 

(SF-50) for the employee dated March 2, 1952, do not provide probative medical evidence of 

appellant’s incompetence to timely file this claim.

Furthermore, while section 8122(d)(3) of FECA (5 U.S.C. § 8123(d)(3)) provides that, time 

limitations for filing a claim “do not run against any individual whose failure to comply is excused 

by the Secretary on the grounds that such notice could not be given because of exceptional 

circumstances.” None of the additional documents received with appellant’s request for 

reconsideration establish that he could not file a timely claim due to exceptional circumstances as 

that term is used in section 8122(d)(3) of FECA. Thus, appellant’s failure to timely file his claim 

precludes him from seeking compensation under FECA.25

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 established that he filed a timely claim for death 

benefits in accordance with 5 U.S.C. § 8122. 

 

24 Id.

25 Supra note 3.
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ORDER

IT IS HEREBY ORDERED THAT the May 20, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 9, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board