United States Department of Labor

Employees’ Compensation Appeals Board

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J.S., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, FEDERAL AIR 

MARSHAL SERVICE, 

Egg Harbor Township, NJ, Employer

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Docket No. 22-0347

Issued: September 16, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 5, 2022 appellant filed a timely appeal from a December 10, 2021 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.

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

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On November 1, 2021 appellant, then a 62-year-old retired investigator and inspector, filed 

a traumatic injury claim (Form CA-1) alleging that he sustained an injury on June 1, 2008 while 

in the performance of duty. In a supporting statement, he asserted that in April 2006 he sustained 

a left rotator cuff tear while doing overhead presses at an employing establishment gymnasium, 

and in June 2008 he experienced weakness and numbness in his right hand, which he attributed to 

compressing his forearm and elbow against airplane armrests during assigned flights. Appellant

contended that witness statements confirmed the claimed injuries. He retired from the employing 

establishment in 2014.

2

Appellant submitted a December 5, 2014 x-ray report, which noted moderate 

osteoarthrosis of the right elbow potentially secondary to remote trauma. He also provided an 

October 15, 2021 statement by coworker B.D., who recalled that, in 2007 or 2008, appellant had 

ulnar nerve surgery to address numbness and weakness in his right hand, likely caused by 

compressing his forearm on airplane armrests. In an October 17, 2021 statement, coworker M.P. 

recalled that in 2007, appellant stated that he had injured his shoulder while performing shoulder 

presses in the employing establishment gymnasium. In an October 18, 2021 statement, coworker 

R.P. asserted that, in 2008, appellant had been concerned about weakness and numbness in his 

right upper extremity.

In a development letter dated November 9, 2021, OWCP notified appellant of the 

deficiencies of his claim. It advised him of the type of evidence necessary to establish his claim. 

OWCP noted that appellant could claim only one injury at a time, and that it would address only 

the June 1, 2008 right hand injury. It provided a questionnaire and afforded him 30 days to 

respond.

In response, appellant submitted July 2008 hospital billing documents, which he asserted 

pertained to ulnar nerve surgery, and a November 17, 2021 report by Dr. Karl Larsen, a Boardcertified orthopedic surgeon, noting appellant’s right hand weakness and paresthesias.3

By decision dated December 10, 2021, OWCP denied appellant’s claim, finding that he 

failed to file a timely claim within the requisite three years under section 8122(a) of FECA (5 

U.S.C. § 8122(a)). It found that the date of injury was June 1, 2008 and that he had not filed a 

claim for compensation until November 1, 2021. OWCP further found that there was no evidence 

that appellant’s immediate supervisor had actual knowledge within 30 days of the date of injury.

2 Appellant filed a previous claim under OWCP File No. xxxxxx235 for a left calf injury sustained on 

November 18, 2003. OWCP processed the claim as a short form closure.

3 A December 1, 2021 electromyogram/nerve conduction velocity (EMG/NCV) study of the right upper extremity 

demonstratedsevere right ulnar neuropathy at the elbow and mild right median neuropathy at the wrist. 
3

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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, that an injury was sustained in the performance of duty as alleged, and 

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

the employment injury. 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.5

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

precedes a determination on the merits of the claim.6 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.7

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 superior 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 8119.8 The knowledge must be such as to put the 

immediate superior reasonably on notice of an on-the-job injury or death.9

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).

On his Form CA-1 appellant indicated that his alleged injury occurred on June 1, 2008. He

filed his Form CA-1 on November 1, 2021 over 13 years after the alleged date of injury. Because 

appellant did not file his traumatic injury claim until November 1, 2021, he has filed his claim 

outside the three-year time limitation.10

The Board also finds that there is no evidence of record that appellant’s immediate 

supervisor had actual knowledge, within 30 days of the alleged injury, or that appellant provided 

4

Supra note 1.

5 D.J., Docket No. 18-0620 (issued October 10, 2018).

6 F.F., Docket No. 19-1594 (issued March 12, 2020); R.T., Docket No. 18-1590 (issued February 15, 2019);

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

7

Id.

8

5 U.S.C. §§ 8122(a)(1); 8122(a)(2); see also Larry E. Young, 52 ECAB 264 (2001).

9 B.H., Docket No. 15-0970 (issued August 17, 2015); Willis E. Bailey, 49 ECAB 511 (1998).

10 Supra note 6.
4

written notice of injury within 30 days of its occurrence.

11

 In his November 1, 2011 letter, 

appellant asserted that witness statements corroborated the June 1, 2008 right hand injury. While

he submitted coworker statements discussing right hand symptoms in 2007 and 2008 and a 2007 

shoulder injury, appellant produced no evidence to substantiate that appellant’s immediate 

supervisor was aware of the alleged injury within 30 days of its occurrence or that he submitted 

written notice within 30 days. In response to the November 9, 2021 development letter, appellant 

submitted medical reports, which are irrelevant to the timeliness issue. Appellant, therefore, has 

not met his burden of proof to establish that he timely filed a traumatic injury 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 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 December 10, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 16, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

11 Supra note 8.