DECISION OF THE HEARING REPRESENTATIVE- January 17, 2001

U.S. Department of Labor
Office of Workers' Compensation Programs

DECISION OF THE HEARING REPRESENTATIVE

In the matter of the claim for compensation under Title 5, U.S. Code 8101 et seq. of Robert F. Farmer, claimant; employed by the Department of the Navy. Case No.: A14320904. Hearing was held on October 25, 2000 in Seattle, Washington.

The issue is whether the Office properly denied the present claim on the basis that it was not timely filed under the applicable time limitation provisions of the Federal Employee's Compensation Act.

The claimant, born September 15, 1940, was formerly employed as an Electronics Technician by the Department of the Navy at the Puget Sound Naval Shipyard in Bremerton, Washington. On October 21, 1996 he filed notice of occupational disease and claim for compensation for chronic myelogenous leukemia which he attributed to exposure during the course of his federal employment. The claimant indicated that he first became aware of his illness on February 25,1993.

The claimant had previously filed a notice of occupational disease on March 21, 1993 for the same condition. On that notice, the claimant indicated that he was first aware that his leukemia was related to his employment on February 25, 1993. The supervisor indicated that she was notified of the condition and the possible relationship to employment on March 25, 1993. The March 21, 1993 claim (under case file A14-202174-now doubled into the present case record) was accepted as timely filed, but denied for failure to establish fact of injury. The date of the denial was January 10, 1994.

In filing the present claim on October 21, 1996, the claimant indicated that he had new information since the original claim.

On July 25, 1997 the Office issued a decision denying the present claim on the basis that the claim was not timely filed. The claimant disagreed with the decision and requested a hearing, which was held on September 14, 1999.

In a decision dated November 11, 1999, the Hearing Representative indicated that the claimant's last date of exposure was April 7, 1994, the date he retired. As the present claim was filed on October 21, 1996, within 3 years of the date of last exposure, the Hearing Representative found that the claim was timely filed. Accordingly, the decision dated July 25, 1997 was vacated, and the case returned to the District Office for further development as to whether the claimant has established a causal relationship between his leukemia and factors of his employment.

The Office undertook further development as directed by the Hearing Representative. By letter dated January 4, 2000, the employing agency was asked to indicate the specific date the claimant was last exposed (or was in a work status) prior to his retirement. By letter dated February 15, 2000, the employing agency indicated that according to agency records, the last day the claimant was in a work status was September 1, 1993.

Based on the additional information provided by the employing agency, the Office determined that the claimant's date of last exposure was September 1, 1993, not April 7, 1994 as indicated by the Hearing Representative. As the October 21, 1996 claim was not filed within 3 years of the revised date of last exposure, the Office, on March 29, 2000 issued a decision again denying the claim for compensation on the basis that the claim was not timely filed.

The claimant disagreed with the March 29, 2000 decision and requested a hearing, which was held on October 25, 2000 in Seattle, Washington. At the hearing the claimant was represented by Richard Ketter. Also present at the hearing in an observer capacity was Gloria Dumas from the Department of the Navy.

The claimant stated that in September 1993 he had a bone marrow transplant. He indicated that following this procedure he wanted to return to work but too ill. The claimant noted that he finally applied for disability retirement in the spring of 1994.

The claimant stated that between September 1993 and April 1994 he returned to the shipyard on several occasions. He indicated that on these occasions he worked with the employee who took over his job, received an award, underwent a physical examination, and completed paperwork for processing his disability retirement.

The claimant stated that he could not recall the exact dates that he was at the shipyard, or the amount of time spent at the shipyard on each occasion. He indicated that he could not recall if he was on the clock or in a pay status. The claimant stated that on these occasions he was exposed to the same factors which he feels caused or contributed to his leukemia.

By letter dated November 14, 2000, Ms. Dumas indicated that from September 1993 to April 1994, the claimant was on terminal leave pending disability retirement. She indicated that the times the claimant indicates he returned to the shipyard were not required by shipyard management or regulations. Ms. Dumas noted that the claimant's business to the shipyard to assist in turnover, his receipt of an award, and even his attendance at the physical examination at the Navel Hospital were optional. She further noted that most "checkouts" from the shipyard after approval of disability retirement are done by mail.

I find that the Office properly denied the present claim on the basis that it was not timely filed under the applicable time limitation provisions of the Federal Employee's Compensation Act.

Section 8122 of the 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 became aware, or reasonably should have been aware, of a possible relationship between his condition and his employment. Section 8122(a)(1) provides that compensation may be allowed if a claim is not filed within 3 years if the immediate superior had actual knowledge of the injury or death within 30 days. The knowledge must be such to put the immediate superior reasonably on notice of an on-the-ob injury or death.

In the instant case, the claimant was first aware of a possible relationship between his condition and his employment on February 25, 1993, and the date of his last exposure was September 1, 1993.

The claimant states that between September 1993 and April 1994 he visited the shipyard on several occasions. However, the claimant is not able to establish the specific dates of these visits, the amount of time spent at the shipyard, or the extent to which he was exposed to the alleged contributing employment factors. Further, it is noted that at the prior hearing, the claimant stated that he did not appeal the January 1994 denial on his initial claim because he was too sick from the leukemia to file the appeal. He further indicated that he was on heavy medications following the January 1994 denial and would have been incapable of appealing. In view of the claimant's described medical condition, visits to the shipyard for any substantial length of time would appear to have been unlikely. Finally, from September 1993 to April 1994 the claimant was on leave and the employing agency states that the claimant was not required by management or regulations to return to the shipyard on any of the occasions indicated. Thus, the claimant was not in the performance of duty during any visits to the shipyard from September 1993 to April 1994. For such reasons, l find that the claimant's last date of exposure was September 1, 1993, the last date he was in a work status.

With respect to the initial March 21, 1993 injury claim, the claimant's immediate superior did have actual knowledge of the injury within 30 days. This would be based on injury/exposure to March 21, 1993, the date the claim was filed. On October 21, 1996 the claimant filed a new occupational disease claim. This new claim would be based on additional exposure from March 22, 1993 to September 1, 1993. There is no evidence that the claimant's immediate superior was reasonably put on notice, within 30 days, of a new injury due to exposure from March 22, 1993 to September 1, 1993.

As the claimant's date of last exposure was September 1, 1993, the applicable time limitation begins to run on that date. Since the present claim, filed on October 21, 1996, was not filed within 3 years after the date of injury, and since there is no evidence that the immediate superior had actual knowledge of the injury within 30 days, the present claim was not timely filed under the applicable time limitation provisions of the Federal Employee's Compensation Act.

The decision of the Office of Worker's Compensation Programs dated March 29, 2000 is hereby AFFIRMED.

DATED: January 17, 2001
WASHINGTON, D.C.

James M. Bankert
Hearing Representative
For Director, Office of Workers'
Compensation Programs

ADDENDUM: It is noted that in filing the present claim, the claimant indicated that he had "new information" since the original claim. However, "new information" does not constitute a basis for filing a new compensation claim, and the present claim is in fact a duplicate of the original March 21, 1993 claim. Based on either the "new evidence" or his belief that he was mentally or physically incapable of filing a timely appeal of the January 10, 1994 decision, the claimant may file a request for reconsideration of the original claim with the District Office.

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