J.W. and U.S. Postal Service, Atlanta Bulk Mail Center, Atlanta, GA (Board decision, November 17, 2009)

ECAB final decision on this appeal. The Board affirmed OWCP's January 5, 2009 denial of J.W.'s emotional condition claim as untimely. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board specifies another period. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

J.W., a retired postal distribution clerk, filed an emotional condition claim in November 2008. She stated that she knew of the condition and its asserted work connection in 1993, and she last worked in September 2005. The Board found that her claim came more than three years after her last exposure to the claimed workplace conditions. The record also did not show that her supervisor had timely actual knowledge of a work related emotional condition. The Board affirmed the denial for late filing.

Decision snapshot

• Authority: FECA claim filing period and latent disability rule under 5 U.S.C. § 8122(a), (b).
• Outcome: January 5, 2009 untimely claim denial affirmed.
• Key point: The filing period ran from the last work exposure after J.W. already knew of the claimed condition and its asserted work link.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.W., Appellant
)
)
and ) Docket No. 09-1085
) Issued: November 17, 2009
U.S. POSTAL SERVICE, ATLANTA BULK
)
MAIL CENTER, Atlanta, GA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION

On March 16, 2009 appellant filed a timely appeal from a January 5, 2009 merit decision of the Office of Workers’ Compensation Programs denying her claim. Pursuant to 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’s emotional condition claim was timely filed.

FACTUAL HISTORY

On November 6, 2008 appellant, a 44-year-old retired distribution clerk, filed an occupational disease claim (Form CA-2) for emotional distress. She first became aware of her condition and that it was caused or aggravated by her federal employment on December 4, 1993. The form reflected that appellant first reported the condition to her supervisor on November 7, 2008. Appellant retired on September 20, 2005.

Appellant noted on the form that the nature of the disease was “(emotional distress); conditions” and that she was injured while in the performance of duty in 1993. The attachment to the claim form elaborated that the nature of the illness was injury to neck, shoulders, legs (MCL strain); (neck) cervical radiculopathy and trigger thumb right shoulder rotator cuff tendinitis. She identified the Christmas holiday season, harassment by her supervisor and working conditions at the employing establishment as sources of stress.

Appellant submitted a report from the medical health unit, which appears to be from November 1997, diagnosing her with depression.

Appellant submitted additional evidence, including medical reports and notes, diagnosing various physical conditions, as well as reports indicating that she was treated for an emotional condition in the year 2000, under Office file number xxxxxx597. By decision dated January 5, 2009, the Office denied her claim because it was not filed in a timely manner.

LEGAL PRECEDENT

In cases of injury on or after September 7, 1974, section 8122(a) of the Federal Employees’ Compensation Act states that an original claim for compensation for disability or death must be filed within three years after the injury or death.1 Section 8122(b) of the Act provides that, in latent disability cases, the time limitation 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.2 The Board has held that, if an employee continues to be exposed to injurious working conditions after such awareness, the time limitation begins to run on the last date of exposure.3

ANALYSIS

In this case, the Office denied appellant’s claim because it was not timely filed.

The Board notes that it is unclear exactly what appellant is alleging. Appellant indicated that she became aware of her emotional condition on December 4, 1993. Her allegations and the evidence submitted from 1993 indicate that she may have sustained a physical injury at that time. Appellant has also alleged that she found working holiday seasons stressful. She did not detail dates and actual duties that caused her alleged stress during holiday seasons. Appellant’s last exposure to factors of her federal employment was September 20, 2005, the date she was last employed by the employing establishment. Because she admits awareness of her emotional condition as of December 4, 1993 and the date of last exposure was September 20, 2005, her claim, filed November 6, 2008, was untimely.

In the case of a latent disability, the time for filing the claim does not begin to run until the employee has a compensable disability and is aware, or reasonably should have been aware,

1
5 U.S.C. § 8122(b).
2
Garyleane A. Williams, 44 ECAB 441 (1993).
3
Larry E. Young, 52 ECAB 264 (2001). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3 (April 1995).

2 that her disability is causally related to her employment.4 In such a case, the time for giving notice of injury begins to run when the employee knows, or reasonably should have known, that she has a condition causally related to her employment, whether or not there is a compensable disability.5 Appellant admits that she became aware of her emotional condition on December 4, 1993. She also terminated her employment exposure on September 20, 2005. Because appellant was aware of her emotional condition as of December 4, 1993, the time for filing her claim commenced on the date of last exposure as this is not a case of latent disability. Therefore, her claim was untimely filed.

A claim may also be allowed notwithstanding the time limitation if the employee’s “immediate superior had actual knowledge of the injury … [sufficient] to put the immediate superior reasonably on notice of an on-the-job injury” within 30 days of its occurrence. The record lacks evidence demonstrating that appellant’s immediate superior reasonably had knowledge of a work-related emotional condition. The undated health unit record, apparently prepared in 1997, which provides a diagnosis of depression, does not provide any information regarding the cause of appellant’s depression.

Finally, the Board notes that the evidence of record indicates that appellant had a prior claim, which may have included a consequential psychiatric component. There is no evidence of record, however, that evidence in that claim would establish timely filing in this matter.

Accordingly, the Board finds that appellant’s claim was untimely filed.

CONCLUSION

The Board finds that appellant has not established that her emotional condition claim was timely filed.

4
Supra note 1.
5
Id.

3
 ORDER

IT IS HEREBY ORDERED THAT the January 5, 2009 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: November 17, 2009
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4