United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.B., Appellant 

and 

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA, Employer 

__________________________________________ 

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Docket No. 14-276 

Issued: May 2, 2014 

Appearances: Case Submitted on the Record

David G. Jennings, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 20, 2013 appellant, through his attorney, filed a timely appeal from July 3 

and October 23, 2013 merit decisions of the Office of Workers’ Compensation Programs 

(OWCP) denying his claim as untimely filed. 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 appellant’s occupational disease claim is barred by the applicable 

time limitation provisions of FECA. 

FACTUAL HISTORY 

On February 27, 2013 appellant, then a 70-year-old pipefitter general foreman, filed an 

occupational disease claim alleging that he sustained bilateral hearing loss due to noise exposure 

 1

 5 U.S.C. § 8101 et seq. 
2

at work. He initially became aware of his condition and attributed it to his federal employment 

duties on January 1, 1982. Appellant was last exposed to the conditions alleged to have caused 

his hearing loss on April 3, 1997, the date that he retired. He indicated that he was only recently 

aware that he could file a hearing loss claim. 

By letter dated April 3, 2013, OWCP requested that appellant submit additional factual 

and medical information, including evidence that he timely provided notice of his alleged injury. 

In an April 17, 2013 response, appellant described his history of noise exposure while 

working for the employing establishment from 1966 to 1997. He again indicated that he first 

related his hearing loss to his work duties in 1982 as it could not “be anything else.” Appellant 

submitted a March 16, 2012 audiogram showing moderate-to-severe hearing loss on the right and 

high-frequency hearing loss on the left. 

The employing establishment obtained audiograms on appellant from March 1960 

onward. A March 24, 1978 audiogram revealed moderate-to-severe sensorineural hearing loss 

on the right. A July 19, 1978 audiogram showed normal findings for the left ear and moderateto-severe mixed hearing loss of the right ear with a large conductive component. An April 28, 

1980 audiogram showed a “sharply downward sloping loss” on the right side. A June 10, 1980 

audiogram revealed moderate-to-severe sensorineural hearing loss. Appellant underwent 

audiograms dated 1986 to 1997 as part of a hearing conservation program by the employing 

establishment. 

On March 26, 2013 the employing establishment confirmed that appellant was exposed to 

noise during the course of his employment and wore hearing protection. It challenged the 

timeliness of the claim. 

By decision dated July 3, 2013, OWCP denied appellant’s claim on the grounds that it 

was not timely filed. 

On July 25, 2010 appellant, through his attorney, requested reconsideration. Counsel 

resubmitted audiograms obtained by the employing establishment from 1986 to 1997 and 

asserted that the audiograms demonstrated that his employer had actual knowledge of his noiseinduced hearing loss. 

In a report dated July 19, 1978, received by OWCP on August 9, 2013, a physician with 

the employing establishment indicated that an audiogram obtained that date showed normal 

findings on the left and moderate-to-severe hearing loss on the right with a large conductive loss 

that would not be occupational. He recommended that appellant be evaluated by a private 

physician. 

In a statement dated February 10, 2013, appellant related that the audiology department at 

the employing establishment issued him earplugs. He noticed his hearing loss two years after he 

began work. 

In a statement dated April 26, 2013, an audiologist with the employing establishment 

reviewed appellant’s history of noise exposure and medical records. He related that hearing 

conservation forms indicated that appellant was issued hearing protection in 1961 and was 
3

“provide[d] with hearing conservation training.” The audiologist noted that appellant initially 

filed a claim for hearing loss in 1978 and that at the time of his preemployment physical he had 

right-sided hearing loss. He recommended an evaluation by a Board-certified otolaryngologist, 

noting that the hearing loss on the left was below the compensable range and on the right did not 

appear occupational in nature. On April 30, 2013 Dr. Ernest L. Fair, who specializes in 

occupational medicine, concurred with the recommendation of the audiologist. 

By decision dated October 23, 2013, OWCP denied modification of its July 3, 2013 

decision. It found that, while appellant participated in a hearing conservation program, he did 

not show that the employing establishment had actual knowledge of his claimed injury. OWCP 

further determined that he did not file his claim within three years from April 3, 1997, the date of 

last exposure.2

On appeal appellant’s attorney argues that his participation in the hearing conservation 

program at the employing establishment establishes actual knowledge of his injury. He asserts 

that a claim does not need to be filed within three years if the employing establishment had 

actual knowledge of the injury. 

LEGAL PRECEDENT 

Section 8122(a) of FECA3

 provides that an original claim for compensation for disability 

or death must be filed within three years after the injury or death.4 Section 8122(b) provides 

that, in latent disability cases, the time limitation does not begin to run until the claimant is 

aware, or by the exercise of reasonable diligence should have been aware, of the causal 

relationship between the employment and the compensable disability.5 The Board has held that, 

if an employee continues to be exposed to injurious working conditions after such awareness, the 

time limitation begins to run on the last date of this exposure.6 Even if a claim is not timely filed 

within the three-year period of limitation, it would still be regarded as timely under section 

8122(a)(1) if the immediate superior had actual knowledge of his alleged employment-related 

injury within 30 days or written notice of the injury was provided within 30 days pursuant to 

section 8119.7

 The knowledge must be such as to put the immediate superior reasonably on 

notice of an on-the-job injury or death.8

 The Board has indicated that an employee need only be 

aware of a possible relationship between his “condition” and his employment to commence the 

 2

 OWCP indicated that appellant retired on April 3, 1993 rather than April 3, 1997; however, this appears to be a 

typographical error. 

3

 5 U.S.C. § 8101 et seq. 

4 Id. at § 8122(a). 

5 Id. at § 8122(b). 

6 See Linda J. Reeves, 48 ECAB 373 (1997). 

7

 5 U.S.C. §§ 8122(a)(1); 8122(a)(2); see also Larry E. Young, 52 ECAB 264 (2001). 

8 Willis E. Bailey, 49 ECAB 509 (1998). 
4

running of the applicable statute of limitations.9 The Board has also held that a program of 

annual audiometric examinations conducted by an employing establishment may constructively 

establish actual knowledge of a hearing loss such as to put the immediate supervisor on notice of 

an on-the-job injury.10

In interpreting section 8122(a)(1) of FECA, OWCP procedures provide that, if the 

employing establishment gives 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.11

ANALYSIS 

The Board finds that appellant’s claim was timely filed. As noted above, if an employee 

continues to be exposed to injurious working conditions, the time limitation begins to run on the 

date of last exposure.12 Appellant ceased to be exposed to work-related noise when he retired on 

April 3, 1997. Therefore, the time limitation provisions began to run on that date. As appellant 

did not file a claim for hearing loss until February 2013, his claim was filed outside the threeyear time limitation period.13 However, his 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 the implicated employment factors. To have actual knowledge, the 

supervisor must be aware that appellant attributed his hearing loss to an injury sustained in the 

performance of duty or to some other factor of employment.14

On appeal appellant’s attorney contends that his supervisor had actual knowledge of his 

hearing as he was part of a hearing conservation program. The Board has held that a program of 

annual audiometric examinations conducted by an employing establishment in conjunction with 

employee testing programs is sufficient to constructively establish actual knowledge of a hearing 

loss such as to put the immediate supervisor on notice of an on-the-job injury.15 OWCP’s 

procedure manual, interpreting section 8122(a)(1) of FECA states: 

“If an agency, in connection with a recognized environmental hazard, has an 

employee testing program and a test shows the employee to have positive findings 

this should be accepted as constituting actual knowledge. For example, an agency 

 9 Edward C. Horner, 43 ECAB 834, 840 (1992). 

10 See J.B., Docket No. 10-2025 (issued June 17, 2011); Jose Salaz, 41 ECAB 743 (1990). 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3(c) and 6(c) (March 1993); see also 

James A. Sheppard, 55 ECAB 515 (2004). 

12 See Larry E. Young, 52 ECAB 264 (2001). 

13 5 U.S.C. § 8122(b). 

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3a(3)(b) (March 1993). 

15 See Joseph J. Sullivan, 37 ECAB 526 (1986); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Time, Chapter 2.801.3(c) (March 1993). 
5

where employees may be exposed to hazardous noise levels may give annual 

hearing tests for exposed employees. A hearing loss identified on such a test 

would constitute actual knowledge on the part of the agency of a possible work 

injury.”16

The record supports that appellant participated in an annual hearing conservation 

program as early as 1986 and that the results indicated various levels of hearing loss. As noted, 

OWCP procedures provide that, if the employing establishment gives 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.17 On April 30, 2013 an audiologist with the employing establishment related that 

appellant had hearing loss on the right side at the time of his preemployment physical and had 

initially claimed hearing loss in 1978. He recommended an evaluation by a private physician. In 

a report dated July 19, 1978, a physician found that appellant’s audiogram revealed moderate-tosevere right-sided hearing loss with a large conductive component that would not be 

occupational. The physician also recommended a consultation with a private physician. 

The Board finds that the evidence of record is sufficient to establish that the employing 

establishment had actual knowledge within 30 days of the date of last exposure that appellant 

believed that he had hearing loss as a result of his employment duties. While it is not clear 

whether appellant’s hearing loss resulted totally from his federal employment, audiograms from 

the employing establishment document hearing loss and it appears that the employing 

establishment was aware in 1978 that he attributed some of his hearing loss at least in part to 

federal employment. Consequently, his claim for compensation for hearing loss was timely 

filed.18 The case will be remanded to OWCP for further development to determine if appellant 

sustained hearing loss causally related to factors of his federal employment. Following such 

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

CONCLUSION 

The Board finds that appellant’s claim was timely filed. 

 16 Federal (FECA) Procedure Manual, id. 

17 Id. at Chapter 2.801.3(c) and 6(c) (March 1993); see also James A. Sheppard, supra note 11. 

18 See Gerald A. Preston, 57 ECAB 270 (2005); James A. Sheppard, supra note 11. 
6

ORDER 

IT IS HEREBY ORDERED THAT the October 23 and July 3, 2013 decisions of the 

Office of Workers’ Compensation Programs are set aside and the case is remanded for further 

proceedings consistent with this opinion of the Board. 

Issued: May 2, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board