                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BRIDGET Y. WILSON,                              DOCKET NUMBER
                   Appellant,                        AT-0831-15-0469-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: October 13, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Bridget Y. Wilson, Linthicum Heights, Maryland, pro se.

           Karla W. Yeakle, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed a reconsideration decision of the Office of Personnel Management
     (OPM) that denied her application for survivor annuity benefits. For the reasons



     *
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                     2

     set forth below, the petition for review is DISMISSED as untimely filed without
     good cause shown. 5 C.F.R. § 1201.114(e), (g).
¶2         On August 14, 2015, the administrative judge issued an initial decision that
     affirmed an OPM reconsideration decision denying the appellant’s application for
     survivor annuity benefits.     Initial Appeal File, Tab 14, Initial Decision (ID)
     at 1-3. The initial decision informed the parties that it would become the final
     decision of the Board on September 18, 2015, unless a petition for review were
     filed by that date. ID at 4.
¶3         On June 29, 2016, the appellant filed a petition for review more than
     9 months out of time. Petition for Review (PFR) File, Tab 1. The Clerk of the
     Board informed the appellant that her petition for review appeared to be untimely
     filed and instructed her to submit evidence and argument showing that the
     petition for review was timely filed or that good cause existed for the delay in
     filing. PFR File, Tab 3. In response, the appellant submitted a Motion to Accept
     Filing as Timely and/or to Ask the Board to Waive or Set Aside the Time Limit in
     which she asserted that she suffers from the residual effects of a motor vehicle
     accident in 2002 and a concussion at some point in 2015. PFR File, Tab 6. The
     agency responds in opposition to the petition for review. PFR File, Tab 5.
¶4         The Board will waive the time limit for filing a petition for review only
     upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To
     establish good cause for the untimely filing of an appeal, a party must show that
     she exercised due diligence or ordinary prudence under the particular
     circumstances of the case. Alonzo v. Department of the Air Force, 4 M.S.P.R.
     180, 184 (1980). To consider whether a party has shown good cause, the Board
     will consider the length of the delay, the reasonableness of her excuse and her
     showing of due diligence, whether she is proceeding pro se, and whether she has
     presented evidence of the existence of circumstances beyond her control that
     affected her ability to comply with the time limits or of unavoidable casualty or
     misfortune which similarly shows a causal relationship to her inability to timely
                                                                                        3

     file her petition. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63
     (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶5         To establish that an untimely filing was the result of an illness, the party
     must: (1) identify the time period during which she suffered from the illness;
     (2) submit medical evidence showing that she suffered from the alleged illness
     during that time period; and (3) explain how the illness prevented her from timely
     filing her appeal or a request for an extension of time. Lacy v. Department of the
     Navy, 78 M.S.P.R. 434, 437 (1998). To establish good cause for waiver of the
     Board’s filing deadline based on physical or mental illness, there is no general
     incapacitation requirement; rather, the appellant is required to explain only why
     her alleged illness impaired her ability to meet the Board’s filing deadline or seek
     an extension of time. Lacy, 78 M.S.P.R. at 437 n.*.
¶6         The appellant has offered scant medical documentation in support of her
     claim that a medical condition prevented her from meeting the filing deadline.
     With her petition for review, the appellant submits two notes from medical
     practitioners that briefly discuss her progress in recovering from the motor
     vehicle accident as of 2002 and 2004. PFR File, Tab 1 at 10-11. This evidence
     sheds no light on the appellant’s medical condition between approximately
     August 2015 and June 2016 and does not explain why the appellant could not
     timely file her petition for review.
¶7         In a supplement to her petition for review, the appellant discusses her
     medical conditions in the context of explaining her need for the medical benefits
     that are part of the survivor annuity benefits that form the underlying basis for the
     appeal. PFR File, Tab 2. She states that the accident has caused chronic pain and
     partial paralysis of her sciatic nerve, which has limited the blood supply to her
     bones and resulted in bone deterioration. Id. at 1. She submits a two-page report
     of an examination on February 27, 2016, of her right hip that found “extensive
     heterotopic ossification” and degenerative changes around the right hip.          Id.
     at 4-5. While this evidence corroborates the appellant’s claim that she suffers
                                                                                      4

     from chronic pain, it does not explain how it made her unable to file her petition
     for review or seek an extension of time before the filing deadline elapsed.
¶8         In her motion to accept as timely or to waive the time limit, the appellant
     refers to documents dated July 2015 that she has not provided and states, “As I
     recovered from a concussion through 4 months unto November 2015,” which we
     interpret to mean that she suffered a concussion in July 2015 and had recovered
     by some point in November 2015. PFR File, Tab 6 at 1. She then states that she
     is still recovering from the automobile accident and discusses difficulties she had
     with her former employer.      The timing and circumstances of the concussion
     are not at all clear, and the appellant failed to provide the medical documentation
     that presumably would have corroborated it, but, assuming for the sake of
     argument that it caused severe enough trauma to incapacitate the appellant until
     she recovered from it in November 2015, she has not accounted for the time
     between her recovery from the concussion in November 2015 and the date she
     filed her petition for review on June 24, 2016.       Pirkkala v. Department of
     Justice, 123 M.S.P.R. 288, ¶¶ 21-22 (2016) (finding that, even assuming that the
     appellant’s anxiety and depression affected his ability to file his appeal once he
     began treatment for his mental illness, he did not explain why he could not have
     filed his appeal during the previous year, particularly where he was able to timely
     submit an application for disability retirement).
¶9         Previously, the Board has found good cause where the appellant submitted
     medical evidence providing a detailed explanation of how her illness affected her
     ability to meet the filing deadline, including evidence that she was unable to
     understand, remember, and carry out very short, simple instructions; understand,
     remember, and carry out detailed instructions; perform activities within a
     schedule; be punctual within customary tolerances; and ask simple questions or
     request assistance. See Smith v. Office of Personnel Management, 117 M.S.P.R.
     527, ¶ 8 (2012). In contrast, in another case, where the appellant established that
     he had torn cartilage in his shoulder but did not explain how that condition
                                                                                        5

      prevented him from timely filing his appeal, the Board did not find good cause.
      Pirkkala, 123 M.S.P.R. 288, ¶ 20. Here, the appellant’s evidence and situation
      more closely resembles those in Pirkkala in that they do not relate the appellant’s
      medical conditions to her inability to file her petition for review on time.
¶10         Accordingly, we dismiss the appellant’s petition for review as untimely
      filed. This is the Board’s final decision regarding the timeliness of the petition
      for review. The initial decision remains the final decision of the Board regarding
      OPM’s denial of the appellant’s application for survivor annuity benefits.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit. You must submit your request to the
      court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

      The court must receive your request for review no later than 60 calendar days
      after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
      2012). If you choose to file, be very careful to file on time. The court has held
      that normally it does not have the authority to waive this statutory deadline and
      that filings that do not comply with the deadline must be dismissed. See Pinat v.
      Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
            If you need further information about your right to appeal this decision to
      court, you should refer to the Federal law that gives you this right. It is found in
      title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
      2012). You may read this law as well as other sections of the U.S. Code, at our
      website, http://www.mspb.gov/appeals/uscode.htm.         Additional information is
      available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
                                                                                 6

is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono      for     information   regarding   pro   bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                              ______________________________
                                            Jennifer Everling
                                            Acting Clerk of the Board
Washington, D.C.
