Second Circuit Holds that Disputed Psychological DBA Claim Was Timely Filed

After working for nine years as an officer for the Kansas Department of Corrections, Claimant went to work for Employer in Kosovo, where she would apprehend fugitive parolees. She started her new job on April 17, 2004. Her first day of work, however, was marred with tragedy when she and five others were shot by a Jordanian soldier. Three victims died. It was not until April 16, 2006, that Claimant filed a claim for benefits under the Longshore and Harbor Workers Compensation Act ("LHWCA"), as extended by the Defense Base Act, for her underlying psychological injuries. The question presented to the United States Court of Appeals for the Second Circuit was whether this claim was barred by the statute of limitations for failure to timely file a claim. Section 13 of the LHWCA contains a statute of limitations, offering different filing periods based upon whether or not the underlying injury was a "traumatic injury" or an "occupational disease." Claimant's psychological claim was treated as a "traumatic injury," which gave her a one-year period in which to file the claim. Under Section 13(a), "[t]he time for filing a claim shall not begin to run until the employee or beneficiary is aware, or by the exercise of reasonable diligence should have been aware, of the relationship between the injury or death and the employment." The key for the Second Circuit was whether Claimant knew or should have known that the injury would permanently impair her earning power. Employer argued that substantial evidence supported its denial. For instance, Claimant (1) changed assignments for Employer; (2) sought psychological counseling from the Army; (3) obtained a prescription for sleeping and anti-anxiety medication from a psychiatrist; (4) submitted to a psychological evaluation ordered by Employer and even sought an independent psychological evaluation; and (5) was experiencing symptoms of PTSD. The Second Circuit disagreed, determining that while Claimant may have recognized she was psychologically distressed, her work was largely unaffected for one year after the shooting. Therefore, Claimant timely filed a claim within one year of the time when she knew or should have known that she had suffered a permanent impairment of her earning power. Dyncorp Int'l v. Director, OWCP, – F.3d –, 2011 WL 3873793 (2d Cir. 2011). Note: The Second Circuit mis-quoted Section 13(a), exchanging "reasonable diligence" for "due diligence."

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