United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.P., Appellant

and

U.S. POSTAL SERVICE, STRATFORD POST 

OFFICE, Stratford, CT, Employer

__________________________________________

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Docket No. 22-0937

Issued: January 9, 2024

Appearances: Case Submitted on the Record

John L. DeGeneres, Jr., Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On June 2, 2022 appellant, through counsel, filed a timely appeal from a February 24, 2022 

merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

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 Appellant, through counsel,submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). 

Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. 

§ 501.5(a). In support of theoral argument request, counselasserted that oral argument should be granted because it 

would allow her to present her arguments regarding the issue of timeliness in a succinct manner. The Board, in 

exercising its discretion, denies appellant’s request for oral argument because this matter can be adequately addressed 

in a decision based on a review of the case record. Oral argument in this appeal would not serve a useful purpose. 

Therefore, the oral argument request is denied and this decision is based on the case record as submitted to the Board.
2

Federal Employees’ Compensation Act3(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).

FACTUAL HISTORY

On October 14, 2019 appellant, then a retired 62-year-old letter carrier,

4

filed an 

occupational disease claim (Form CA-2) alleging that he sustained bilateral hip osteoarthritis due 

to factors of his federal employment. He noted, “[t]he relationship to my employment is a medical 

question that I was unaware of until my exam[ination] with Dr. Scott on September 27, 2017.” 

Appellant noted that he first became aware of his condition on February 3, 2014, and first realized 

its relationship to his federal employment on September 27, 2017. On the reverse side of the form, 

the acting manager of customer service advised that he started working at the employing 

establishment after appellant retired, and noted that he had no knowledge of appellant’s record. 

He indicated that appellant first reported his claimed condition to a supervisor on 

October 14, 2019.

In a November 12, 2019 statement, appellant reported that he had worked for the 

employing establishment for 32 years from 1981 until he retired in 2013. He advised that

beginning in 1981 he worked as a letter carrier, a job that required walking approximately seven 

to eight miles per day to make 500 deliveries. Appellant noted that he had to ascend and descend 

hundreds of stairs per day while carrying heavy mail parcels. He estimated that he had to mount 

and dismount his postal vehicle 100 times per day and advised that he also had to stand for two 

and a half hours per day while casing mail.

Appellant submitted a June 4, 2009 report detailing an open reduction internal fixation of 

his right patella by Dr. Mark Wilchinsky, a Board-certified orthopedic surgeon. In a January 9, 

2014 report, Dr. Wilchinsky indicated in the history portion of the report that appellant presented 

with a “many[-]month history of right buttock, hip, and thigh pain” and noted, “[h]e was a mail

[carrier] for years and did a lot of walking. Sometimes he gets groin pain. Never had any one 

specific injury.” He reported physical examination findings, noted that x-rays showed severe 

degenerative arthritis of the right hip, and diagnosed arthritic right hip and sciatica. 

Dr. Wilchinsky recommended total right hip replacement. 

Appellant also submitted a January 23, 2014 report from John Carravone, a physician 

assistant, who diagnosed advanced degenerative joint disease of the right hip; a January 23, 2014 

pre-surgery checklist; a February 2, 2014 report from Mr. Carravone discussing upcoming right 

hip surgery; February 3, 2014 x-rays of the right hip; a February 3, 2014 surgery report of total 

right hip replacement; several February 2014 reports from attending physicians other than

3

5 U.S.C. § 8101 et seq.

4 Appellant retired from the employing establishment effective May 31, 2013.
3

Dr. Wilchinsky discussing appellant’s condition after his total right hip replacement; February 28, 

2014 and May 14, 2015 home health certificationsfrom Dr. Wilchinsky; a March 13, 2014 report 

from Dr. Wilchinsky discussing appellant’s postsurgery condition; a March 3, 2015 report from

Dr. Wilchinsky reporting appellant’s left knee complaints; a March 9, 2015 report describing a 

steroid injection in the left hip; a March 19, 2015 report from Dr. Wilchinsky regarding left hip 

complaints; an April 10, 2015 pre-surgery checklist; an April 20, 2015 surgery report of total left 

hip replacement; several April and May 2015 reports from Dr. Wilchinsky, Mr. Carravone, and 

other healthcare providers discussing appellant’s left hip condition before and after his total left 

hip replacement; and April 20, 2015 x-rays of the left hip.

In a March 6, 2019 report, Dr. Kevin L. Scott, a Board-certified orthopedic surgeon, 

discussed appellant’s work history, noting that he reported that he had worked for the employing 

establishment for 32 years. Appellant reported that since 1981 he worked as letter carrier and was 

required to walk approximately seven to eight miles per day, including going up and down stairs,

while carrying heavy mail parcels. Dr. Scott noted that appellant also reported that he had to stand 

for two and a half hours per day while casing mail. He diagnosed status post bilateral hip total 

arthroplasties and opined that appellant’s bilateral hip osteoarthritis was aggravated by his work 

activities, including walking, climbing, and lifting. 

In a November 6, 2019 letter, an employing establishment official advised that appellant’s 

October 14, 2019 occupational disease claim was being challenged based on the fact that appellant 

retired on May 31, 2013 and was last exposed to the conditions alleged to have caused his claimed 

disease/illness on that same date.

In a November 15, 2019 development letter, OWCP notified appellant of the deficiencies 

of his claim. It advised him of the type of factual and medical evidence needed and provided a 

questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary 

evidence.

Appellant submitted copies of previously submitted documents. In a December 2, 2019 

statement, he provided additional details regarding his work duties. In a December 17, 2019 letter, 

counsel argued that appellant had established his claim.

By decision dated March 24, 2020, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish causal relationship between his diagnosed 

condition and the accepted factors of his federal employment. It concluded, therefore, that the 

requirements had not been met to establish an injury or condition due to the accepted employment 

factors. 

On March 31, 2020 appellant, through his then-counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

By decision dated May 18, 2020, OWCP’s hearing representative set aside the March 24, 

2020 decision and remanded the case to OWCP for further development, to be followed by 

issuance of a de novo decision. The hearing representative determined that the reports of Dr. Scott 

were of sufficient probative value to require, upon remand, that appellant be referred for a second 

opinion examination and evaluation regarding his claim for a work-related occupational disease.
4

On September 18, 2020 OWCP referred appellant for a second opinion examination and 

evaluation with Dr. Clinton Jambor, a Board-certified orthopedic surgeon. It requested that

Dr. Jambor provide an opinion regarding whether appellant sustained an occupational disease 

related to the accepted employment factors.

In an October 21, 2020 report, Dr. Jambor discussed appellant’s factual and medical 

history, and reported the findings of his physical examination. He diagnosed status post total 

arthroplasty, but opined that appellant’s surgery was not related to a work injury. Dr. Jambor 

noted, “[h]e developed arthritis secondary to age[-]related degenerative changes. It is my opinion 

that his work activities as a vehicle maintainer and letter carrier were not a substantial factor in his 

need for surgery.”

By decision dated February 5, 2021, OWCP denied appellant’s claim for an occupational 

disease, finding that the fifth basic element, causal relationship, had not been met. 

On February 22, 2021 appellant, through his then-counsel, requested an oral hearing before 

a representative of OWCP’s Branch of Hearings and Review. During the June 10, 2021 hearing, 

appellant’s then-counsel argued that appellant had submitted sufficient medical evidence to 

establish a work-related occupational disease.

In a June 29, 2021 statement, appellant asserted that he first became aware that his bilateral 

arthritic hips were related to his work activities on September 27, 2017, when he saw Dr. Scott 

who asked him about his work history in detail. He maintained that Dr. Scott was the first 

physician he ever had a discussion with about his work causing his hip condition. Appellant noted, 

“I never knew that I potentially had a compensable disability caused by work or that there was a 

causal relationship between my work and my employment until my appointment with Dr. Scott on 

September 27, 2017.”

By decision dated September 1, 2021, OWCP’s hearing representative affirmed OWCP’s 

February 5, 2021 decision, as modified to reflect that appellant’s occupational disease claim was 

now denied on the basis that the claim was untimely filed. The hearing representative found that 

appellant’s October 14, 2019 claim was not filed within three years of January 9, 2014, the date 

he was reasonably aware of the possible relationship between his work duties and his diagnosed 

bilateral hip condition. The hearing representative cited appellant’s assertion that he was not aware 

of such a possible relationship until September 27, 2017 and noted, “[h]owever, the medical report 

of January 9, 2014 from Dr. Wilchinsky does indicate the claimant has an extensive walking 

history as a mail[carrier]. In light of this history from 2014 and the claimant[’s] bilateral hip 

replacements in 2014 and 2015, I find the claimant’s statement that he was not aware of the 

employment connection of his hip condition to his carrier duties is disingenuous. ”

On January 28, 2022 appellant, through counsel, requested reconsideration of the 

September 1, 2021 decision. Counsel continued to argue that appellant was not aware of the 

possible relationship between his work duties and his diagnosed bilateral hip condition until 

September 27, 2017.

By decision dated February 24, 2022, OWCP denied modification of its September 1, 2021

decision.
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LEGAL PRECEDENT

An employee seeking benefits under FECA5 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,6that 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.7 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 .

8

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

precedes any determination on the merits of the claim.9 In cases of injury on or after September 7, 

1974, section 8122(a) of FECA provides that an original claim for compensation, disability, or 

death, must be filed within three years after the injury or death.10 The Board has found that the 

statute of limitations begins to run on the date that the employee actually knows of the possible 

relationship between the employee’s condition and his or her employment, or reasonably should 

have known of the possible relationship.

11

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 federal employment.12 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 his or her federal employment, the time limitation 

begins to run on the date of the last exposure to the implicated factors. 13 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 supervisor had actual knowledge of his or her alleged employmentrelated injury within 30 days or written notice of the injury was provided within 30 days pursuant 

5

Supra note 3. 

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

153 (1989).

7 M.G., Docket No. 18-1616 (issued April9, 2020);R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 

312 (1988).

8

20 C.F.R. § 10.115; A.S.,Docket No. 19-1955 (issued April 9, 2020); L.M.,Docket No. 13-1402 (issued 

February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

9 C.S., Docket No. 18-0009 (issued March 22, 2018); DavidR. Morey, 55 ECAB 642 (2004); Charles W. Bishop,

6 ECAB 571 (1954).

10 5 U.S.C. § 8122(a); see also S.F., Docket No. 19-0283 (issued July 15, 2019); W.L., 59 ECAB 362 (2008).

11 William A. West, 36 ECAB 525, 528-29 (1985).

12 R.T., Docket No. 18-1590 (issued February 15, 2019).

13 G.M., Docket No. 18-0768 (issued October 4, 2018).
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to section 8119.14 The knowledge must be such as to put the immediate superior reasonably on 

notice of an on-the-job injury or death.15 It is the employee’s burden of proof to establish that a 

claim is timely filed.16

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).

Appellant submitted a Form CA-2 on October 14, 2019 alleging that he sustained bilateral 

hip osteoarthritis due to factors of his federal employment. A hearing representative issued a 

September 1, 2021 decision,which modified the prior denial of the claim to reflect that appellant’s 

occupational disease claim was being denied on the basis that the claim was untimely filed. The 

hearing representative found that appellant’s October 14, 2019 Form CA-2 was not filed within 

three years of January 9, 2014, the date he was reasonably aware of the possible relationship 

between his work duties and his diagnosed bilateral hip condition. The hearing representative 

cited appellant’s assertion that he was not aware of such a possible relationship until September 27, 

2017 and noted, “[h]owever, the medical report of January 9, 2014 from Dr. Wilchinsky does 

indicate the claimant has an extensive walking history as a mail [carrier]. In light of this history 

from 2014 and the claimant’s bilateral hip replacements in 2014 and 2015, I find the claimant[‘s]

statement that he was not aware of the employment connection of his hip condition to his carrier 

duties is disingenuous.” In the January 9, 2014 report referenced by OWCP’s hearing 

representative, Dr. Wilchinsky indicated in the history portion of the report that appellant 

presented with a “many month history of right hip symptoms” and noted, “[h]e was a mail[carrier]

for years and did a lot of walking. Sometimes he gets groin pain. Never had any one specific 

injury.” He reported physical examination findings, noted that x-rays showed severe degenerative 

arthritis of the right hip, and diagnosed arthritic right hip and sciatica.

The Board finds that, by January 9, 2014, appellant was aware or reasonably should have 

been aware of the possible relationship between his claimed medical condition and employment 

factors. The above-described report demonstrates that, by January 9, 2014, appellant was aware 

or reasonably should have been aware that the work duties he had been performing for more than 

30 years could have caused or aggravated his hip condition. 

The Board has previously held that when an employee becomes aware, or reasonably 

should have become aware that he has a condition, which has been adversely affected by factors 

of his employment, such awareness is competent to start the running of the time limitations period, 

even though he does not know the precise nature of the impairment, or whether the ultimate result 

of such adverse effect would be temporary or permanent.17 In discussing the degree of knowledge 

required by the employee prior to filing a claim, the Board emphasized that he need only be aware 

14 5 U.S.C. §§ 8122(a)(1), 8122(a)(2); see also D.D., Docket No. 19-0548 (issued December 16, 2019).

15 R.H., Docket No. 17-0251 (issued November 28, 2018); B.H.,Docket No. 15-0970 (issued August 17, 2015).

16 A.S., Docket No. 18-1094 (issued February 7, 2019).

17 D.R., Docket No. 18-1754 (issued April 4, 2019).
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of a possible relationship between his condition and his employment to commence the statute of 

limitations. The Board has not required that appellant have definitive evidence of a condition and 

causal relationship on the date the claim is filed.18 The January 9, 2014 report establishes that, by 

this date, appellant associated his symptoms with activities at work, including extensive walking 

on his mail delivery route. As appellant acknowledged he had symptoms in the region of the 

claimed injury after performing work duties,and the medical evidence demonstrated that he sought 

medical treatment for this condition as early as January 9, 2014 and was diagnosed with a hip 

condition, the Board finds that appellant was aware, or reasonably should have been aware, as 

early as January 9, 2014, of the relationship between his hip condition and employment factors.19 

However, because he did not file his claim until October 14, 2019, a date more than three years

after January 9, 2014, his claim was untimely filed.20

Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if 

his immediate superior had actual knowledge of the injury within 30 days, or under section 

8122(a)(2) if written notice of injury was given to his immediate superior within 30 days as 

specified in section 8119.21 He has not made any claim that he has satisfied either of these 

provisions, nor does the record support a finding that he has satisfied either of them. 22 As the 

evidence of record is insufficient to establish actual knowledge by appellant’s supervisor of a

work-related injury within 30 days, the Board finds that he has not established a timely 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 and 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).

18 C.S., supra note 9; Edward Lewis Maslowski, 42 ECAB 839 (1991).

19 See R.H., Docket No. 21-1364 (issued April 5, 2022).

20 See supra notes 10 and 11.

21 See supra notes 14 and 15.

22 There is no indication in the record that appellant provided a statement to his immediate superior such that he 

satisfied the provisions of sections 8119 and 8122(a) of FECA. See id.
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ORDER

IT IS HEREBY ORDERED THAT the February 24, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 9, 2024

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board