United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.R., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL 

UNDERSEA WARFARE CENTER, KEYPORT 

DIVISION, Keyport, WA, Employer 

__________________________________________ 

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Docket No. 14-2035 

Issued: February 20, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 September 22, 2014 appellant filed a timely appeal from a September 10, 2014 

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 appellant filed a timely claim for compensation under 5 U.S.C. 

§ 8122. 

On appeal, appellant contends that an exception should be made on the timeliness 

element of his claim because he did not know he could file a workers’ compensation claim for 

hearing loss. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case was previously before the Board.2 In a decision dated July 24, 2014, the Board 

remanded appellant’s case to OWCP for further development on the issues of what his date of 

last exposure to hazardous noise was and whether his immediate supervisor had actual 

knowledge of his hearing loss within 30 days of the alleged injury. The facts as set forth in the 

Board’s prior decision are incorporated hereby by reference. 

By letter dated August 6, 2014, OWCP requested that the employing establishment 

respond to its inquiries in further development of appellant’s claim. It asked for a job title as of 

the date of injury, the date of his last exposure to hazardous noise, and whether he was exposed 

to hazardous noise after June 2004. OWCP asked whether appellant previously notified any of 

his supervisors of hearing loss and whether the employing establishment was made aware of the 

injury previously. It further requested that the employing establishment provide statements from 

his previous supervisors verifying whether he gave notice of injury. In particular, OWCP 

requested that the employing establishment provide a statement from Scott L. Hultquist, 

appellant’s immediate supervisor. It also requested this information from appellant in a letter of 

the same date, and advised him that it would be contacting his former employing establishment 

to obtain the relevant information from his supervisor. 

On August 8, 2014 appellant responded to OWCP’s inquiries. He stated that, to the best 

of his recollection, his last date of exposure to hazardous noise was in April 2004. Appellant 

noted that he did not formally notify his supervisor of a hearing loss in April 2004 because he 

was unaware at that time that hearing loss was taking place. He stated that, by the end of 2004, 

the loss was noticeable. By 2005, appellant stated that he realized something had to be done to 

assist his hearing, so he began to look for an audiologist. In May 2006, he stated that he was 

tested; and, in December 2006, he purchased hearing aids. Appellant noted that his supervisors 

at the time were aware that he had hearing loss, but did not suggest filing a claim for workers’ 

compensation. He further stated that, as the employing establishment did not have an annual 

physical examination requirement; therefore, there was no way to document his hearing decline. 

Appellant noted that his hearing decline probably began in 1996 when he became a member of 

an alteration installation team, and that he was embarked on naval vessels over 100 times 

between January 1996 and April 2006. 

In a letter dated August 12, 2014, Mr. Hultquist stated that he only learned of appellant’s 

hearing loss when he became his branch head in May 2012, and that at that time he was already 

using hearing aids to assist him in his hearing. 

Appellant’s employment record revealed that he was employed as an electronics engineer 

from February 26, 1989 through January 31, 2014, when he voluntarily retired. 

Appellant submitted a reference audiogram dated February 16, 1988. 

 2

 Docket No. 14-645 (issued July 24, 2014). On September 16, 2013 appellant, then a 59-year-old electronics 

engineer, filed an occupational disease claim (Form CA-2) alleging that on December 20, 2004 he became aware of 

his bilateral hearing loss and first realized it was caused or aggravated by duties of his federal employment. The 

employing establishment challenged his claim on the basis that it was untimely filed. 
3

In a record of a telephone conversation dated September 9, 2014, the employing 

establishment notified a claims examiner that appellant was not in a hearing conservation 

program and that the employing establishment would have no knowledge of a work-related 

hearing loss. 

By decision dated September 10, 2014, OWCP denied appellant’s claim for 

compensation in a merit decision. It found that he had not submitted his claim in a timely 

manner. OWCP found that appellant was last exposed to hazardous noise in 2004 and that the 

employing establishment did not have knowledge of his hearing loss within 30 days of his date 

of injury of December 20, 2004. It further found that it was not evident that he participated in an 

employer-sponsored hearing conservation program to alternatively meet the timely filing 

requirement. 

LEGAL PRECEDENT 

The issue of whether a claim was timely filed is a preliminary jurisdictional issue that 

precedes any determination on the merits of the claim.3

 In cases of injury on or after 

September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation 

for disability or death must be filed within three years after the injury or death. Compensation 

for disability or death, including medical care in disability cases, may not be allowed if a claim is 

not filed within that time unless: (1) the immediate superior had actual knowledge of the injury 

or death within 30 days. The knowledge must be such as to put the immediate superior 

reasonably on notice of an on-the-job injury or death; or (2) written notice of injury or death as 

specified in section 8119 was given within 30 days.4

Section 8119 of FECA provides that a notice of injury or death shall be given within 30 

days after the injury or death; be given to the immediate superior of the employee by personal 

delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the 

name and address of the employee; state the year, month, day and hour when and the particular 

locality where the injury or death occurred; state the cause and nature of the injury, or in the case 

of death, the employment factors believed to be the cause; and be signed by and contain the 

address of the individual giving the notice.5

 Actual knowledge and written notice of injury under 

section 8119 serve to satisfy the statutory period for filing an original claim for compensation.6 

For actual knowledge of a supervisor to be regarded as timely filed, an employee must show not 

only that the immediate superior knew that he or she was injured, but also knew or reasonably 

should have known that it was an on-the-job injury.7

 3 Charles Walker, 55 ECAB 238, 239 (2004); see Charles W. Bishop, 6 ECAB 571, 571 (1954). 

4

 5 U.S.C. § 8122(a). 

5 Id. at § 8119; Larry E. Young, 52 ECAB 264, 266 (2001). 

6 Laura L. Harrison, 52 ECAB 515, 517 (2001). 

7 Delmont L. Thompson, 51 ECAB 155, 156 (1999). 
4

Section 8122(b) of FECA provides that the time for filing in latent disability cases 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, and the Board has held that the applicable statute of limitations commences to run 

although the employee does not know the precise nature of the impairment.8

In a case of occupational disease, 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 condition and his 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 the employee does not know the precise 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 he reasonably should have been aware that he has a 

condition which has been adversely affected by factors of federal employment, the time 

limitation begins to run on the date of the last exposure to the implicated factors.10 The 

requirement to file a claim within three years is the claimant’s burden and not that of the 

employing establishment.11

ANALYSIS 

The Board finds that appellant has not established that his hearing loss claim was filed in 

a timely manner. 

On September 16, 2013 appellant filed an occupational disease claim alleging hearing 

loss due to factors of his federal employment. He stated that he first became aware of the 

condition’s relationship to his federal employment on December 20, 2004. The last date of 

exposure to hazardous noise alleged by appellant was in April 2004. The employing 

establishment concurs that his last exposure to hazardous noise occurred in 2004. As appellant 

learned of his condition and of its relationship to his employment after his last exposure to 

hazardous noise, the time limitation for filing the claim began to run on the date of his realization 

of his condition’s relationship to his employment, which was December 20, 2004.12 He thus had 

three years from December 20, 2004 to timely file his claim. As appellant’s claim was not filed 

until September 16, 2013, the Board finds that it was not timely filed within the three-year period 

of limitation. 

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

immediate supervisor had actual knowledge of the injury, or if he provided written notice, within 

 8

 5 U.S.C. § 8122(b); see Luther Williams, Jr., 52 ECAB 360, 361 (2001). 

9 Larry E. Young, supra note 5. 

10 Id.

11 Debra Young Bruce, 52 ECAB 315, 317 (2001). 

12 See Larry E. Young, supra note 5. 
5

30 days of his injury, i.e., within 30 days of December 20, 2004.13 On the previous appeal of this 

case under Docket No. 14-645, the Board remanded the case to OWCP for further development 

of these aspects of his claim. By letter dated August 6, 2014, OWCP asked the employing 

establishment for appellant’s job title as of the date of injury, the date of his last exposure to 

hazardous noise, and whether he was exposed to hazardous noise after June 2004. It asked 

whether he previously notified any of his supervisors of hearing loss and whether the employing 

establishment was made aware of the injury previously. OWCP further requested that the 

employing establishment provide statements from appellant’s previous supervisors verifying 

whether he gave notice of injury. In particular, it requested that the employing establishment 

provide a statement from Mr. Hultquist, appellant’s supervisor. In a letter of the same date, 

OWCP also requested this information from appellant. 

In a letter dated August 12, 2014, Mr. Hultquist stated that he only knew of appellant’s 

hearing loss when he became his branch head in May 2012, and that at that time he was already 

using hearing aids to assist him in his hearing. On August 8, 2014 appellant noted that he did not 

formally notify his supervisor of a hearing loss in April 2004 because he was unaware at that 

time that the hearing loss was taking place. He further stated that his employing establishment 

was unaware of his hearing loss, as it did not have an annual physical examination requirement 

and that, therefore, there was no way to document his hearing decline. 

While appellant has the burden to establish his claim, OWCP shares responsibility in the 

development of the evidence, particularly when such evidence is of the character normally 

obtained from the employing establishment.14 The Board finds that OWCP has adequately 

developed the evidence in this case. The record does not reflect that appellant provided written 

notice of injury prior to filing the instant claim, and there is no evidence of record to indicate that 

a supervisor had actual knowledge within 30 days of December 20, 2004. Appellant specifically 

stated that he did not notify his supervisors and that the employing establishment was unaware of 

his hearing loss. Appellant’s supervisor, Mr. Hultquist, specifically stated that he had no 

knowledge of appellant’s hearing loss until May 2012, when he became appellant’s branch head. 

The Board finds, therefore, that appellant did not establish that his immediate supervisor had 

actual knowledge or that he had provided written notice of his injury within 30 days of his last 

exposure on December 20, 2004. 

Appellant contended on appeal that he did not know that he could file a claim for hearing 

loss with OWCP and that an exception should be made on the timeliness element of his claim. 

The Board has held that an employee’s lack of awareness of possible entitlement, lack of access 

to information, or ignorance of the law or one’s rights and obligations under it, does not 

constitute exceptional circumstances that excuse a failure to file a timely claim.15 As such, 

appellant did not file a timely claim for compensation. 

 13 See 5 U.S.C. § 8122(a); Ralph L. Dill, 57 ECAB 248, 251 (2005). 

14 See Robert C. Fay, 39 ECAB 163 (1987). 

15 See R.A., Docket No. 12-1339 (issued December 6, 2012). 
6

CONCLUSION 

The Board finds that appellant’s claim is untimely pursuant to 5 U.S.C. § 8122. 

ORDER 

IT IS HEREBY ORDERED THAT the September 10, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 20, 2015 

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