New Defense Base Act/ Longshore case from the Second Circuit Court of Appeals. The issue is on the timeliness of filing a claim. The case is Dyncorp Int'l v. Dir., OWCP, 2011 U.S. App. LEXIS 18325 and can be found here. Facts: a civilian employee was shot by a United Nations peacekeeper from Jordan while serving as a guard in a prison in Kosovo. The employee was eventually transferred back to the USA and was diagnosed with post-traumatic stress disorder. Since her claim fell outside the one year statue of limitation in the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq., the Administrative Law Judge dismissed the claim. The Benefits Review Board reversed the ALJ and the employer appealed to the Second Circuit. Analysis: The court of appeals affirmed the BRB's reversal. The Longshore Act does include a presumption of timely filing that can only be surmounted by an employer showing "substantial evidence." The employer sought to use the date of the employee's first notice that she was suffering from mental impairment that could impact her income earning ability. The court found that attending a counseling session was not enough to presume that an employee would evince an awareness of a disability. Similarly, the court found that taking anti-anxiety drugs or sleeping pills do not evince an awareness of a disabilty. This case is important for claimants, especially with psychological injuries, to consider when analyzing whether their claims are time barred.
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