United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.M., Appellant

and

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, NATIONAL INSTITUTES OF 

HEALTH, Gaithersburg, MD, Employer

__________________________________________

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Docket No. 19-1345

Issued: January 28, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 5, 2019 appellant filed a timely appeal from a February 27, 2019 merit decision 

and a May 28, 2019 nonmerit 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.

ISSUES

The issues are: (1) whether appellant filed a timely claim for compensation pursuant to 

5 U.S.C. § 8122(a); and (2) whether OWCP properly denied his request for reconsideration of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On November 19, 2018 appellant, then a 51-year-old contract specialist, filed an 

occupational disease claim (Form CA-2) alleging that he sustained a stress-related condition due 

 

1 5 U.S.C. § 8101 et seq.
2

to learning on or about July 15, 2013 that he had been reassigned to another position. He indicated 

that he both became aware of his condition and realized that it was caused or aggravated by factors 

of his federal employment on July 15, 2013. Appellant indicated that his issues were “continuous.”

In a statement dated November 11, 2018, appellant indicated that on approximately 

July 15, 2013 he learned that management had reassigned him from a position as a management 

analyst to a position as a contract specialist at a different work location.2 He maintained that he 

had immediately experienced extreme stress and that “such issues continue to this very day.” 

Appellant advised that he had missed work intermittently from July 18, 2013 through 

November 15, 2015 due to stress.

In a development letter dated January 2, 2019, OWCP informed appellant that the evidence 

submitted was currently insufficient to establish his claim, noting that it did not appear that his 

claim was timely filed. It advised him of the type of medical and factual evidence needed, 

including the date that he had become aware of his condition, the date of last exposure to the 

identified workplace stressors, and a detailed description of the employment factors to which he 

attributed his condition. In a separate development letter of even date, OWCP requested that the 

employing establishment provide comments from a knowledgeable supervisor regarding the 

accuracy of appellant’s allegations.

In a January 24, 2019 response, appellant again alleged that he had experienced stress after 

learning about his involuntary reassignment on July 15, 2013. He related, “I was written out of 

work by a medical doctor from July 18 through August 31, 2013 due to the aforementioned issues 

surrounding my forcible reassignment and the stress[-]related issues I was and [am] currently 

experiencing.” Further appellant alleged that he was “written out of work” by the same medical 

provider from November 13 to 15, 2013, January 7 to 9, 2014 and indicated since these specific 

times that he has been “written out of work” due to his work-related stress. He advised that the 

issues from his stress-related condition continued to the present.

By decision dated February 27, 2019, OWCP denied appellant’s occupational disease claim 

as it was untimely filed. It found that he had become aware of the relationship between his 

condition and his federal employment on July 15, 2013, but had not filed a claim until 

November 19, 2018. 

On March 11, 2019 appellant requested reconsideration. He asserted that the issue to which 

he attributed his condition were continuous, and thus maintained that it was “unfair to assign a 

fixed beginning date.” 

By decision dated May 28, 2019, OWCP denied appellant’s request for reconsideration of 

the merits of his claim under 5 U.S.C. § 8128(a). 

 

2 Appellant additionally contended that he had sustained physical injuries on various dates. OWCP developed the 

issue of whether he had sustained an orthopedic condition under OWCP File No. xxxxxx307. 
3

LEGAL PRECEDENT -- ISSUE 1

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

precedes any determination on the merits of the claim.3 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.4

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 

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.5 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.6 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.7 It is the employee’s burden 

to establish that a claim is timely filed.8

ANALYSIS -- ISSUE 1

The Board finds that appellant filed a timely claim for compensation pursuant to 5 U.S.C. 

§ 8122(a).

In his November 19, 2018 occupational disease claim, appellant advised that he had 

become aware of his condition and its relationship to his federal employment on or around 

July 15, 2013. In statements dated November 11, 2018 and January 24, 2019, he related that he 

continued to experience stress-related issues due to his reassignment. 

OWCP found appellant’s claim untimely under 5 U.S.C. § 8122(a). It determined that he 

had become aware of his condition and its relationship to his employment on July 15, 2013, but 

had not filed the claim until November 29, 2018, more than three years later. However, appellant 

filed an occupational disease claim and noted that he had continuing stress due to a series incidents

to the present time caused by exposure to the identified employment factors. The time limitations 

does not begin to run until appellant is no longer exposed to the identified factors alleged to have 

 

3 A.S., Docket No. 18-1094 (issued February 7, 2019); C.D., 58 ECAB 146 (2006).

4 5 U.S.C. § 8122(a).

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

6 L.H., Docket No. 19-0818 (issued December 9, 2019).

7 5 U.S.C. § 8122(b); see also J.E., Docket No. 16-1493 (issued May 7, 2018).

8 See A.S., supra note 3.
4

contributed to an employment injury.9 The Board has held that, if an employee continues to be 

exposed to injurious working conditions, the time limitation begins to run on the last date of this 

exposure.10 Appellant specified that the employment factors causing his stress-related condition 

continued to the present day. Therefore, his claim was timely filed under 5 U.S.C. § 8122(a).

As appellant has filed a timely claim for compensation, the case is remanded to OWCP to 

further develop and adjudicate the merits of the claim. Following any further development that it 

deems necessary, it shall issue a de novo decision.

CONCLUSION

The Board finds that appellant filed a timely claim for compensation pursuant to 5 U.S.C. 

§ 8122(a).11

ORDER

IT IS HEREBY ORDERED THAT the May 28 and February 27, 2019 decisions of the 

Office of Workers’ Compensation Programs are set aside, and the case is remanded for further 

proceedings consistent with this opinion of the Board.

Issued: January 28, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

9 C.L., Docket No. 16-0854 (issued August 24, 2016).

10 R.A., Docket No. 16-0090 (issued March 21, 2016).

11 In view of the Board’s disposition of issue one regarding the merit issue of timeliness, the issue of whether OWCP 

properly denied appellant’s request for reconsideration of the merits of the claim under section 8128(a) is moot.