Your claim for compensation benefits has been disallowed because you failed to file your claim within the three-year time limitations imposed by the Federal Employees' Compensation Act. Further information regarding the facts and reasoning used to reach this decision is provided in the enclosed copy of the Memorandum to the Director dated March 29, 2000. The decision was based on the evidence of record and on the assumption that all available evidence has been submitted. If you disagree with the decision you may follow any one of the courses of action outlined in the attached appeal rights. (NOTE: You must specify in writing which avenue of appeal you desire; mail your request to the appropriate address; and, meet the specified time requirements.)
Further medical treatment at OWCP expense is not authorized and prior authorization. if any, is hereby terminated.
Under Office of Personnel Management (OPM) regulations, an employee who recovers from a compensable injury within one year is entitled to mandatory job restoration and is expected to apply for work with the employing Federal agency immediately upon recovery. Employees who recover more than one year after the injury are entitled to priority consideration, provided they apply for reemployment within 30 days after compensation ceases. You may obtain further information concerning restoration rights from your agency or any OPM area office (if you are a postal employee, contact your local personnel of lice.) You should also contact your former employing agency or OPM for advice on continuing any health insurance and/or life insurance coverage.
Sincerely,
KATHLEEN
M. DUANE
Senior Claims Examiner
ENCLOSURES
DEPARTMENT
OF THE NAVY
PUGET SOUND NAVAL SHIPYARD
CODE 1113 1
1400 FARRAGUT AVE
BREMERTON, WA 98314
RICHARD KETTER ESQ.
1344 NE McWILLIAMS ROAD
BREMERTON WA 98311
The issue to be resolved is whether the claimant has established that he filed timely notice of occupational disease on October 21, 1996 for occupational exposure which he asserts caused or worsened his chronic myelogenous leukemia.
By decision of November 11, 1999, the Branch of Hearings and Review found that the claimant's October 21, 1996 form CA-2 for occupational disease was timely filed. The basis of that decision was the Hearing Representative's understanding that the claimant's employment exposure continued until April 7, 1994.
Whenever by error of fact or law a determination is made which is not supported by the evidence of record, the Office may reopen the claim for review and issue a new decision.
The record establishes that Mr. Farmer's last workplace exposure was September 1, 1993. He filed his claim on October 21, 1996 stating he first became aware of the condition and its possible relationship to his employment in February of 1993. Therefore, he filed his claim more than three years after the date he was first aware of his condition and had made his deduction that the exposure at work had contributed to his condition.
The employing agency received his CA-2, Notice of Occupational Disease on January 13, 1997, although Mr. Farmer has dated the CA-2 with the date of October 21, 1996.
Section 8122 of the Federal Employees' Compensation Act states that "an original claim for compensation for disability or death must be filed within 3 years after the injury or death." Subsection (b) of this section adds that in latent disability cases or in cases 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 possible relationship between his condition and his employment. Where the employee continues in the same employment, after such awareness, the time limitation begins to run on the date of his last exposure to the implicated factors."
The claimant testified at his hearing that he knew of a possible causal connection between his Leukemia and his Federal employment in February of 1993. He filed a claim for employment-related leukemia in March of 1993; however, the Of flee denied that claim. The claimant did not appeal the Office's denial of his March 1993 claim.
The claimant further indicated to the Hearing Representative that he continued to be exposed to the environmental factors claimed through his date of retirement on April 7, 1994. However, the Office wrote to the claimant's employer on January 4, 2000, asking for a letter detailing the specific date upon which the claimant was last exposed (or was in a work status) prior to his retirement. In their response of February 15, 2000, the employer stated that the last date that the claimant was in a work status was September 1, 1993. The claimant underwent a bone-marrow transplant on September 9, 1993. He did not return to work following the transplant and subsequent therapy. Instead, he retired effective April 7, 1994, on a disability retirement related to his illness and subsequent treatment.
Based upon the above information, I find that the Hearing Representative erred in determining that the last exposure occurred on April 7, 1994. As a result of that error, she issued a faulty determination that the claim was timely filed.
RECOMMENDATIN:
Therefore, it is recommended that this claim be now and is hereby denied, based upon a finding that the claimant failed to file his claim within the three-year time period mandated by the Federal Employees' Compensation Act. (NOTE: The claimant should be aware that his previously denied claim (A14-282174) was timely filed. If he believes that he was mentally or physically incapable of filing timely request for appeal of that claim, he may submit such evidence and request an appropriate appeal at this time.)
KATHLEEN
M. DUANE
Senior Claims Examiner
March 29, 2000