United States Department of Labor

Employees’ Compensation Appeals Board

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G.Y., Appellant

(sister of K.H., deceased)

and

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, INDIAN HEALTH SERVICES, 

NAVAJO AREA OFFICE, Window Rock, AZ, 

Employer

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Docket No. 21-0106

Issued: October 21, 2021

Appearances: Case Submitted on the Record

Jake Yazzie, Jr., for the appellant1

Office of Solicitor, for the Director

ORDER REVERSING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On October 26, 2020 appellant, through a representative, filed a timely appeal from an 

October 2, 2020 merit decision of the Office of Workers’Compensation Programs (OWCP).2 The 

Clerk of the Appellate Boards assigned Docket No. 21-0106. 

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 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

On July 29, 2020 the employing establishment submitted an official supervisor’s report of 

employee’s death (Form CA-6). It listed the date of injury and death as June 7, 2020 following a 

fall, and indicated that the employee was in the performance of duty.

In a development letter dated August 31, 2020, OWCP informed appellant, the employee’s 

sister, that it was unclear whether she was claiming survivor benefits. It requested that she provide 

factual and medical documentation supporting the claim if she was claiming survivor benefits. 

OWCP also provided appellant with a survivor’s claim for death benefits (Form CA-5) for her 

completion. It informed her that any claim for survivor benefits must be filed within three years 

following the date of death.

By decision dated October 2, 2020, OWCP disallowed appellant’s claim. It noted, “We 

provided you 30 days to respond. However, we did not receive a response from you. Therefore, 

the case is now closed.”

The Board has duly considered this matter and notes that 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. 3 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;4(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; 5

(3) the employee filed a timely disability claim for a work-related injury or disability and the 

employee’s death is based on the same injury;6 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.7

As appellant had not filed a claim for survivor benefits, the October 2, 2020 decision was 

premature. Thus, the Board finds that the October 2, 2020 decision was improperly issued. 

3

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

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

5

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

6

Id. at § 8122(c).

7

Id. at § 8122(d).
3

IT IS HEREBY ORDERED THAT the October 2, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: October 21, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board