United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.L., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Dallas, TX, Employer 

__________________________________________ 

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Docket No. 14-1208 

Issued: September 29, 2014 

Appearances: Case Submitted on the Record 

Alan J. Shapiro, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On April 30, 2014 appellant filed a timely appeal from a January 10, 2014 merit decision 

of the Office of Workers’ Compensation Programs (OWCP) denying an occupational disease 

claim. 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 established that he sustained a hearing loss in the 

performance of duty. 

On appeal, counsel asserts that OWCP’s January 10, 2014 decision is “contrary to law 

and fact.” 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On June 29, 2012 appellant, then a 57-year-old special agent, filed an occupational 

disease claim (Form CA-2) alleging that he sustained a bilateral hearing loss due to exposure to 

firearm and jet engine noise at work. He first realized he had a hearing loss and that it could be 

related to his federal employment on July 25, 2011. The employing establishment noted that 

appellant first reported the hearing loss to his supervisor on June 29, 2012.2

In a September 6, 2012 letter, OWCP advised appellant of the type of evidence needed to 

establish his claim, including a complete history of occupational and nonoccupational noise 

exposure, describing the sources of hazardous noise and the duration of his exposures. It 

afforded him 30 days to submit such evidence. 

In response, appellant submitted weapons qualification logs dated from September 9, 

1991 to November 28, 2011, internet literature on noise exposure, employing establishment 

literature regarding a hearing loss awareness program and annual employing establishment 

audiograms dated from January 23, 1996 to October 1, 2012 showing a progressive bilateral high 

frequency hearing loss. 

By decision dated December 12, 2012, OWCP denied the claim on the grounds that fact 

of injury was not established. It found that appellant’s claim was timely filed and that he 

submitted medical evidence. However, appellant did not provide factual evidence establishing 

the type and duration of his occupational exposure to hazardous noise. 

In a November 15, 2013 letter, counsel requested reconsideration, asserting that 

appellant’s description of noise exposure was sufficient to establish fact of injury. He submitted 

October 31, 2013 examination and audiogram reports from Dr. Courtney A. Noell, an attending 

Board-certified otolaryngologist, diagnosing a bilateral sensorineural hearing loss and tinnitus. 

Dr. Noell opined that appellant’s condition “could likely have been affected by his noise 

exposure as he was frequently on the tarmac with airplanes powered up without hearing 

protection.” 

By decision dated January 10, 2014, OWCP denied modification on the grounds that the 

new evidence submitted failed to establish fact of injury. It found that, while Dr. Noell repeated 

appellant’s account of exposure to firearm and jet engine noise, appellant did not submit factual 

evidence verifying the type and duration of exposure. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of establishing the essential 

elements of his or her claim, including the fact that the individual is an “employee of the United 

States” within the meaning of FECA; that the claim was filed within the applicable time 

limitation; that an injury was sustained while in the performance of duty as alleged; and that any 

disability and/or specific condition for which compensation is claimed are causally related to the 

                                                             2

 The record indicates that appellant retired from the employing establishment in June 2012. 
3

employment injury.3 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4 

An occupational disease is defined as a condition produced by the work environment 

over a period longer than a single workday or shift.5

 To establish that an injury was sustained in 

the performance of duty in an occupational disease claim, a claimant must submit the following: 

(1) medical evidence establishing the presence or existence of the disease or condition for which 

compensation is claimed; (2) factual statement identifying employment factors alleged to have 

caused or contributed to the presence or occurrence of the disease or condition; and (3) medical 

evidence establishing that the employment factors identified by the claimant were the proximate 

cause of the condition for which compensation is claimed or, stated differently, medical evidence 

establishing that the diagnosed condition is causally related to the employment factors identified 

by the claimant.6

ANALYSIS 

Appellant claimed that he sustained a bilateral hearing loss in the performance of duty on 

or before July 25, 2011 due to hazardous noise from firearms and aircraft engines. OWCP 

denied the claim on the grounds that fact of injury was not established as he did not submit a 

position description, industrial hygiene surveys or other factual evidence documenting the type 

and duration of his occupational exposure to hazardous noise.

 Appellant submitted firearms qualification logs dated from September 9, 1991 to 

November 28, 2011. These logs do not indicate the type of firearms to which he was exposed, 

the type and duration of the exposures, or whether he was wearing hearing protection. The logs 

are therefore insufficient to establish fact of injury.7

 The Board notes that, in her October 31, 

2013 report, Dr. Noell indicated that appellant’s frequent exposure to aircraft engines could have 

affected his hearing. However, appellant has not established that he was exposed to aircraft 

engine noise. 

OWCP advised appellant by September 6, 2012 letter of the importance of providing a 

detailed description and corroborating evidence of the exposures alleged to have caused or 

contributed to the claimed hearing loss. However, appellant did not submit such evidence. 

Therefore, OWCP’s January 10, 2014 decision denying his claim is proper under the law and 

facts of this case.

On appeal, counsel asserts that OWCP’s January 10, 2014 decision is “contrary to law 

and fact.” As stated above, appellant did not submit factual evidence establishing that he was 

                                                             3 Joe D. Cameron, 41 ECAB 153 (1989). 

4 See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999). 

5

 20 C.F.R. § 10.5(q). 

6 Solomon Polen, 51 ECAB 341 (2000). 

7 Joe D. Cameron, supra note 3. 
4

exposed to hazardous noise in the performance of duty. Therefore, OWCP properly found that 

he did not establish fact of injury. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant has failed to establish that he sustained a hearing loss in 

the performance of duty. 

ORDER 

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

Workers’ Compensation Programs is affirmed. 

Issued: September 29, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board