United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.G., Appellant 

and 

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA, Employer 

__________________________________________ 

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Docket No. 15-167 

Issued: February 27, 2015 

Appearances: Case Submitted on the Record

David G. Jennings, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 3, 2014 appellant, through counsel, timely appealed the October 2, 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 the claim. 

ISSUE 

The issue is whether appellant’s hearing loss claim is timely pursuant to 5 U.S.C. 

§ 8122(a). 

FACTUAL HISTORY 

On August 5, 2014 appellant, then a 68-year-old former ships nuclear fluid mechanical 

systems inspector foreman, filed a claim (Form CA-2) for binaural hearing loss. He indicated 

that he first realized that his condition was employment related on January 1, 1993. Appellant 

 1

 5 U.S.C. §§ 8101-8193. 
2

retired from the employing establishment effective March 31, 1998. On the CA-2 the employing 

establishment indicated that he first reported his condition to a supervisor on August 5, 2014, the 

date he filed his CA-2. 

OWCP received various employee personnel records dating back to June 1973. 

Appellant also provided a description of his job titles and the various duties he performed for the 

employing establishment between 1973 and 1998. OWCP also received the results of various 

audiograms, including a June 26, 1973 preemployment study. The evidence included a summary 

of the results of at least 18 audiograms that were administered as part of the employing 

establishment’s hearing conservation program. The latest employer-administered audiogram was 

dated March 26, 1998. Additionally, appellant submitted the results of a May 7, 2014 

audiogram. 

By decision dated October 2, 2014, OWCP denied appellant’s hearing loss claim as 

untimely filed. It identified January 1, 1993 as the date of injury, and noted that he retired 

effective “March 31, 1993.” Appellant did not file his claim until August 5, 2014, and the 

evidence did not support that his immediate superior had actual knowledge within 30 days of the 

date of injury. 

LEGAL PRECEDENT 

An original claim for compensation for disability or death must be filed within three 

years after the injury or death.2

 A claim filed outside this time frame must be disallowed unless 

the immediate superior had actual knowledge of the injury or death within 30 days.3

 In a case of 

latent disability, the time for filing a claim does not begin to run until the employee has a 

compensable disability and is aware or by the exercise of reasonable diligence should have been 

aware of the causal relationship of the compensable disability to his employment.4 An employee 

with actual or constructive knowledge of his or her employment-related condition, who 

continues to be exposed to injurious working conditions, must file a claim within three years of 

the date of last exposure to the implicated conditions.5

A positive test result from an employing establishment program of regular audiometric 

examination as part of a hearing conservation programs is sufficient to establish knowledge of a 

hearing loss so as to put the immediate superior on notice of an on-the-job injury.6

 2 Id. at § 8122(a). 

3 Id. at § 8122 (a)(1). 

4 Id. at § 8122(b). 

5 E.g., James A. Sheppard, 55 ECAB 515, 518 (2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, 

Chapter 2.801.6 (March 1993). 

6 See James A. Sheppard, id.; Federal (FECA) Procedure Manual, id. 
3

ANALYSIS 

The Board finds that the case is not in posture for decision. 

Appellant claimed to have been aware of his employment-related hearing loss on or about 

January 1, 1993. Based on his reported employment history, appellant’s occupational noise 

exposure continued until his retirement effective March 31, 1998. After retiring, appellant 

waited more than 16 years before filing the current occupational disease claim. Clearly, he did 

not file his claim within three years of the date of last exposure to the implicated conditions. 

Under the circumstances, appellant’s claim must be disallowed unless the immediate superior 

had actual knowledge of the injury or death within 30 days. 

In finding there was no evidence that appellant’s immediate superior had actual 

knowledge of his injury, OWCP failed to acknowledge that, for more than two decades, 

appellant regularly participated in the employing establishment’s hearing conservation program.7 

The October 2, 2014 decision incorrectly stated that only two diagnostic tests (audiograms) had 

been received, which were dated May 13, 1997 and May 7, 2014.8

 As noted, the record includes 

the results of at least 18 employer-administered audiograms through March 26, 1998. If any of 

the conservation program test results were positive, this would suffice for purposes of 

establishing that appellant’s immediate superior received notice of an on-the-job injury.9

 

Because OWCP failed to address the evidence regarding the employing establishment’s 

hearing conservation program, the case shall be remanded for further development. After such 

further development as deemed necessary, OWCP shall issue a de novo decision. 

CONCLUSION 

The case is not in posture for decision. 

 7

 Appellant’s counsel initially raised this issue in an August 19, 2014 letter to OWCP. 

8

 OWCP also incorrectly noted that appellant retired in “1993,” rather than March 31, 1998. 

9

 The procedure manual provides in relevant part: 

“If the employing agency gave regular physical examinations which might have detected signs of 

illness (for example, regular x-rays or hearing tests), the agency should be asked whether the 

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

[If the claimant was still exposed to employment hazard on or after September 7, 1974 and the 

agency’s testing program disclosed the presence of an illness or impairment, this would constitute 

actual knowledge on the part of the agency, and timeliness would be satisfied even if the employee 

was not informed...].” 

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6c. 
4

ORDER 

IT IS HEREBY ORDERED THAT the October 2, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision. 

Issued: February 27, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board