United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.E., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL 

FACILITIES ENGINEERING COMMAND, 

San Diego, CA, Employer 

__________________________________________ 

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Docket No. 14-1551 

Issued: October 28, 2014 

Appearances: Case Submitted on the Record

David G. Jennings, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 1, 2014 appellant, through counsel, filed a timely appeal from the June 12, 2014 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s hearing loss claim on the 

grounds that it was untimely filed. 

FACTUAL HISTORY 

On March 28, 2014 appellant, then a 68-year-old former contract surveillance 

representative, filed an occupational disease claim (Form CA-2) alleging that he sustained a 

 

 1 5 U.S.C. §§ 8101-8193. 
2

bilateral hearing loss due to exposure to hazardous noise at work. He noted that he first became 

aware of his claimed hearing loss and its relationship to his federal employment on 

January 1, 1990. Appellant stated that he related the hearing loss to occupational noise exposure 

because it “couldn’t be anything else.” He delayed filing his claim for more than 30 days after 

January 1, 1990 because it only recently came to his attention that he could file a claim.2

In an April 1, 2014 letter, OWCP requested that appellant submit a detailed history of his 

occupational noise exposure, describe any nonoccupational exposure to hazardous noise and 

submit medical reports and audiograms from any treatment for hearing loss. It advised him that 

he must also submit evidence to establish that his claim was filed within three years of the date 

he first related his condition to his employment. OWCP afforded appellant 30 days to submit the 

requested evidence. 

In response, appellant stated that he was exposed to hazardous noise during his federal 

employment from 1965 to 1967 and 1972 to 1999 when he worked in various positions as a 

shipfitter and shipbuilding specialist. In all of these positions, he was exposed to hazardous 

noise from heavy machines and pneumatic tools, including those used for hammering, grinding, 

gouging, chipping and sandblasting. Appellant indicated that he was provided with safety 

devices while he worked in these positions. He stated that he was last exposed to noise in his 

federal employment when he stopped work as a shipbuilding specialist in December 1999.3

 

Appellant indicated that he had federal employment as a contract surveillance representative 

from February 2000 until his retirement on October 31, 2008, but that he had no exposure to 

hazardous noise in this position. 

Appellant submitted employing establishment audiograms performed as part of a hearing 

conservation program which showed ratable monaural hearing loss in his right ear.4 An 

October 29, 1996 audiometric test at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles 

per second revealed decibel losses of 5, 10, 35 and 60 decibels on the right. A September 30, 

1999 audiometric test at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second 

revealed decibel losses of 5, 15, 40 and 65 decibels on the right.5

 The audiograms from the 

hearing conservation program showed a progression in appellant’s right-sided hearing loss from 

a nonratable loss to a ratable loss as a December 21, 1981 audiogram had shown a nonratable 

loss in the right ear.6

 2

 On May 13, 2014 appellant filed a claim for a schedule award due to his claimed hearing loss. The record 

contains documents showing that he had retired from federal employment effective October 31, 2008. 

3

 The record contains documents from the employing establishment confirming that he was exposed to hazardous 

noise in the workplace. 

4

 Under FECA, hearing loss impairments are determined by the average of the hearing levels at 500, 1,000, 2,000 

and 3,000 cycles per second. If the average is less than 25 decibels, the hearing impairment is not ratable. See

American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) at 250-51. 

5

 All of the audiograms submitted by appellant showed a nonratable hearing loss in his left ear. 

6

 The December 21, 1981 audiometric test at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per 

second revealed decibel losses of 15, 15, 25 and 25 decibels on the right. 
3

In a June 12, 2014 decision, OWCP denied appellant’s claim finding that it was not 

timely filed under the three-year time limitation at section 8122 of FECA. It found that he did 

not file his claim until March 28, 2014, more than three years after his last exposure to hazardous 

noise in October 2008. OWCP further found that the evidence did not establish that the 

employing establishment had actual notice of the hearing loss within 30 days of the date of 

injury. 

LEGAL PRECEDENT 

Under section 8122 of FECA,7

 as amended in 1974, a claimant has three years to file a 

claim for compensation.8

 In a case of occupational disease, the Board has held that the time for 

filing a claim begins to run when the employee first becomes aware or reasonably should have 

been aware, of a possible relationship between his or her condition and his or her employment. 

When an employee becomes aware or reasonably should have been aware that he or she has a 

condition which has been adversely affected by factors of his or her federal employment, such 

awareness is competent to start the limitation period even though he or she does not know the 

nature of the impairment or whether the ultimate result of such affect would be temporary or 

permanent.9 Where the employee continues in the same employment after such awareness, the 

time limitation begins to run on the date of his or her last exposure to the implicated factors.10 

For latent disability cases, section 8122(b) of FECA provides that the time limitation does not 

begin to run until the claimant is aware of the causal relationship between his or her employment 

and the compensable disability or should have been aware of this relationship by exercising 

reasonable diligence.11 

Even if the claim is not filed within the three-year period, it may be regarded as timely 

under section 8122(a)(1) if appellant’s immediate supervisor had actual knowledge of his or her 

alleged employment-related injury within 30 days such that the immediate superior was put 

reasonably on notice of an on-the-job injury or death.12 In interpreting section 8122(a)(1) of 

FECA, OWCP procedure provides that, if the employing establishment provides regular physical 

examinations which might have detected signs of illness, such as hearing tests, it should be asked 

whether the results of such tests were positive for illness and whether the employee was notified 

of the results.13 The Board has held that a program of periodic audiometric examinations 

conducted by an employing establishment in conjunction with an employee testing program for 

hazardous noise exposure is sufficient to constructively establish actual knowledge of a hearing 

 7

 5 U.S.C. § 8122. 

8 Duet Brinson, 52 ECAB 168 (2000); William F. Dorson, 47 ECAB 253, 257 (1995); see 20 C.F.R. § 10.101(b). 

9 Duet Brinson, supra note 8. 

10 Larry E. Young, 52 ECAB 264 (2001). 

11 5 U.S.C. § 8122(b); Bennie L. McDonald, 49 ECAB 509, 514 (1998). 

12 Id. at § 8122(a)(1). 

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6(c) (March 1993); L.C., 57 ECAB 

740 (2006); Ralph L. Dill, 57 ECAB 248 (2005). 
4

loss, such as to put the immediate supervisor on notice of an on-the-job-injury.14 A hearing loss 

identified on such a test would constitute actual knowledge on the part of the employing 

establishment of a possible work injury.15

ANALYSIS

Appellant clearly indicated that he was aware of a relationship between his claimed 

hearing loss and his federal employment as of January 1, 1990. Under section 8122(b), the time 

limitation begins to run when he became aware of causal relationship, or, if he continued to be 

exposed to noise after awareness, the date he was no longer exposed to noise. Appellant was last 

exposed to hazardous noise from his federal employment on December 31, 1999.16 Therefore, 

the three-year time limitation began to run no later than December 31, 1999. As appellant did 

not file his occupational disease claim until March 28, 2014, the Board finds that it was not filed 

within the three-year time period under section 8122(b). 

Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if 

his immediate supervisor had actual knowledge of the injury within 30 days of his last exposure 

to hazardous noise in federal employment, i.e., within 30 days of his last exposure no later than 

December 31, 1999.17 The Board finds that the employing establishment conducted a program 

of audiometric testing for which appellant submitted a series of audiograms obtained prior to his 

retirement. These audiograms obtained as part of a hearing conservation program, are sufficient 

to establish actual knowledge of the claimed hearing loss within 30 days of his last noise 

exposure which occurred no later than December 31, 1999. Of note, an October 29, 1996 

audiometric test at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second 

revealed decibel losses of 5, 10, 35 and 60 decibels on the right. In addition, a September 30, 

1999 audiometric test at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second 

revealed decibel losses of 5, 15, 40 and 65 decibels on the right. This ratable hearing loss18

constitutes actual knowledge by the employing establishment of a possible work-related hearing 

loss within 30 days of his last noise exposure which occurred no later than December 31, 1999.19 

Therefore, appellant’s hearing loss claim is considered timely. 

The case must be remanded for OWCP to address the merits of the claim. After carrying 

out this development, OWCP shall issue an appropriate decision. 

 14 L.B., Docket No. 12-1548 (issued January 10, 2013); James W. Beavers, 57 ECAB 254 (2005). 

15 See 5 U.S.C. § 8122(a)(1); Federal (FECA) Procedure Manual, supra note 13 at Chapter 2.801.3; G.C., Docket 

No. 12-1783 (issued January 29, 2013); Ralph L. Dill, supra note 13. 

16 Appellant indicated that he was not exposed to hazardous noise in his federal employment after the date in 

December 1999 that he stopped working as shipbuilding specialist. The precise date that appellant stopped working 

as a shipbuilding specialist in December 1999 remains unclear from the record. 

17 See supra note 12.

18 See A.M.A., Guides 250-51. 

19 See supra notes 14 and 15. 
5

CONCLUSION

The Board finds that appellant’s claim for hearing loss was timely filed. The case is 

remanded to OWCP for further development. 

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated June 12, 2014 is set aside and the case remanded to OWCP for 

further development in accordance with this decision of the Board. 

Issued: October 28, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board