United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.K., Appellant

and

DEPARTMENT OF THE ARMY, WOMACK 

ARMY MEDICAL CENTER, Fort Bragg, NC, 

Employer

__________________________________________

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Docket No. 21-0592

Issued: February 21, 2023

Appearances: Case Submitted on the Record

Whitney Gage, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 1, 2021 appellant, through counsel, filed a timely appeal from a September 25, 

2020 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.

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

ISSUE

The issue is whether appellant filed a timely claim for compensation pursuant to 5 U.S.C. 

§ 8122(a).

FACTUAL HISTORY

On August 12, 2020 appellant, then a 43-year-old medical officer, filed an occupational 

disease claim (Form CA-2) alleging that her recurrent major depressive disorder had been 

aggravated by factors of her federal employment. She noted that she first became aware of her

condition on November 2, 2016 and realized its relation to her federal employment on 

October 26, 2018. Specifically, appellant attributed the aggravation of her preexisting major 

depressive disorder to her difficulty keeping up with deadlines at work and other work stressors. 

On the reverse side of the form, the employing establishment noted that on November 1, 2019 she

informed her supervisor of her condition and relationship to her work. It noted that appellant’s

work assignment was unchanged. 

In reports dated September 27, 2018 and March 29, 2019, Dr. Dushyant Bhatt, a Boardcertified internist, noted that appellant was seen that day for depression with suicidal ideation. 

In reports dated October 26, 2018, March 18, April 29, August 8, October 3, 2019, and 

January 9. 2020, Dr. Joseph A. Holmes, an osteopathic physician specializing in psychiatry, noted 

that appellant was seen for ongoing anxiety and depressive symptoms. Appellant stated that she 

had struggled with her depression symptoms, but recently her symptoms have become 

unmanageable due to recent events. 

On January 25, 2019 appellant was seen by Dr. Jared W. Atkinson, a psychiatrist, for 

depression. 

On April 20, 2020 appellant was seen by Dr. Gabriella F. Greco, an osteopathic physician

specializing in psychiatry, for recurrent depressive disorder. She complained of increased work 

stress and that she had an administrative action taken against her. 

In a report dated May 22, 2020, Dr. Sara B. Olack, a psychiatrist, diagnosed ongoing 

depression and provided a treatment plan. 

In a June 30, 2020 report, Dr. Venkata R. Chittilla, a psychiatrist, noted that appellant 

complained of increased work stress. Appellant had also related that, due to her failure to meet 

deadlines, she was on the verge of losing her job. Dr. Chittilla opined that appellant needed 

continued mental health services to prevent further deterioration or relapses and to maintain 

stabilization. 

In a July 15, 2020 report, Maureen L. Reardon, Ph.D., a clinical psychologist, noted that 

appellant came under her care for individual psychotherapy services on November 2, 2016. She 

diagnosed recurrent major depressive disorder based on history and clinical presentation. 

Dr. Reardon noted that it was apparent that appellant’s symptoms had been aggravated at various 

times by various stressors including increased work demands and deadlines during the past year. 
3

On August 13, 2020 the employing establishment controverted appellant’s claim, asserting 

that her diagnosed medical condition was unrelated to any factors of her employment, and that her

claim had not been filed until her counsel was notified that she was facing termination. 

In a development letter dated August 19, 2020, OWCP informed appellant of the 

deficiencies of her claim, including that it was untimely filed. It advised her of the type of factual

and medical evidence needed, and provided a questionnaire for her completion. 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. It

afforded both parties 30 days to respond. 

In an August 31, 2020 response, the employing establishment noted that appellant had a 

history of depression since 1998, which had been successfully treated by 2007. In December 2009,

appellant began her employment at the employing establishment and she transferred sections in 

March 2015. The employing establishment noted that in 2016 new standards were published. 

Appellant did not meet her standards at her 2019 to 2020 mid-term review. She was placed on a 

performance improvement plan (PIP) in February 2020. The employing establishment noted that 

appellant failed the PIP, but that the April 2020 proposal to remove her from her position was 

delayed in order to search for a position to which she could transfer. The search, however, was 

unsuccessful. In June 2020, appellant was notified that she had failed the PIP, she thereafter filed 

a Form CA-2 requesting placement on leave without pay. 

Appellant, through counsel, subsequently submitted additional factual and medical 

evidence. In a report dated September 14, 2020, Dr. Edward Landis, Ph.D., related her

employment history. He related that since 2015 appellant was assigned an extremely heavy 

workload and short timelines in which to complete her work. As a result of the high-pressure 

environment, appellant experienced symptoms of depression and anxiety. Dr. Landis noted that 

on October 26, 2018, “a VA psychiatrist” discussed with her that her symptoms had become 

unmanageable, and she became aware at that point that her symptoms were related to her 

employment. 

OWCP also received e-mail correspondence between appellant and her supervisor,

covering the period April 16 through July 29, 2019 regarding appellant’s work requirements. 

In a September 15, 2020 response to OWCP’s questionnaire, appellant described her work 

load, her short deadlines, and her struggles with trying to keep up with her workload. She noted 

that she would continue to work after hours. Appellant related that all of her work had deadlines

with case preparations due within 72 hours; patient encounters signed within 24 hours; and 

narrative summaries turned over within five days of receipt. No consideration was afforded for 

leave, holidays, or weekends. 

By decision dated September 25, 2020, OWCP denied appellant’s claim, finding that it was 

untimely filed as she realized the relationship between her condition and her federal employment 

on November 2, 2016, but did not file the claim until August 12, 2020. 
4

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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 period of FECA,4that 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.5 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.6

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

precedes a determination on the merits of the claim.7 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.8

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.9 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.10 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 

3

Id.

4 L.S., Docket No. 20-0705 (issued January 27, 2021); M.O., Docket No. 19-1398 (issued August 13, 2020);

G.L., Docket No. 18-1057 (issued April 14, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5 L.S., id.; J.R., Docket No. 20-0496 (issued August 13, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr.,

40 ECAB 312 (1988).

6 L.S., id.; B.M., Docket No. 19-1341 (issued August 12, 2020); M.B., Docket No. 20-0066 (issued July 2, 2020);

Delores C. Ellyett, 41 ECAB 992 (1990).

7 M.B., Docket No. 20-0066 (issued July 2, 2020); Charles Walker, 55 ECAB 238 (2004); Charles W. Bishop, 6 

ECAB 571 (1954).

8 5 U.S.C. § 8122(a); F.F., Docket No. 19-1594 (issued March 12, 2020); W.L., 59 ECAB 362 (2008).

9 M.B., Docket 20-0066 (issued July 2, 2020); S.O., Docket No. 19-0917 (issued December 19, 2019); Larry E. 

Young, 52 ECAB 264 (2001).

10 Id.
5

relationship between the employment and the compensable disability.11 It is the employee’s 

burden to establish that a claim is timely filed.12

ANALYSIS

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

§ 8122(a).

Where an 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.13 Appellant has alleged that she was exposed to a stressful work environment 

due to a heavy workload and tight deadlines, after a change in performance standards in 2016. She 

was placed on a PIP in February 2020 and was notified of the proposal to remove her from 

employment in June 2020. Appellant first became aware of her condition on November 2, 2016 

and realized its relation to her federal employment on October 26, 2018. Statements from 

appellant and the employing establishment establish that she continued to be exposed to the work 

factors she identified as aggravating her depression through June 2020. 

The time limitations does not begin to run until appellant is no longer exposed to the 

identified factors alleged to have contributed to an employment injury.14 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.15 Therefore, the Board finds that appellant’s claim was 

timely filed under 5 U.S.C. § 8122(a), within three years of the date of last exposure.

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’s claim for compensation was timely filed within the 

applicable time limitation provisions of 5 U.S.C. § 8122(a).

11 5 U.S.C. § 8122(b).

12 M.B., supra note 9; D.D., Docket No. 19-0548 (issued December 16, 2019); Gerald A. Preston, 57 ECAB 

270 (2005).

13 M.B., id.; S.O., supra note 9.

14 A.M., Docket No. 19-1345 (issued January 28, 2020); C.L., Docket No. 16-0854 (issued August 24, 2016).

15 Supra note 9.
6

ORDER

IT IS HEREBY ORDERED THAT the September 25, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: February 21, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board