United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.C., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Indianapolis, IN, 

Employer 

__________________________________________ 

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Docket No. 15-1596 

Issued: November 5, 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 H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 20, 2015 appellant filed a timely appeal of a February 9, 2015 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 to 

consider the merits of the case. 

ISSUE 

The issue is whether appellant timely filed an occupational disease claim for 

compensation under 5 U.S.C. § 8122(a). 

FACTUAL HISTORY 

On July 28, 2014 appellant, then a 51-year-old postal clerk, filed an occupational disease 

claim (Form CA-2) alleging that she developed loss of hearing due to exposures to automated 

 1

 5 U.S.C. § 8101 et seq.
2

machinery in the performance of her federal job duties. She indicated that she first became 

aware of her condition in 2009 and first realized that her condition was caused by her 

employment in 2009. Appellant reported working on automated machinery her entire 26-year 

career and alleged that the machines were loud and that dropped equipment was loud. She stated 

that her loss of hearing was gradual over a long period of time and that she was currently 

experiencing difficulty hearing when others spoke to her. On the reverse of the form, appellant’s 

supervisor contended that appellant continued to work and that she first reported her condition on 

August 14, 2014. 

Appellant submitted a report dated March 27, 2014 from Dr. Maximillian S. Newell, a 

Board-certified otolaryngologist. Dr. Newell noted that appellant reported gradual hearing loss 

with intermittent tinnitus. He reported that appellant had worked in a high noise environment for 

years. Dr. Newell examined appellant’s audiogram and diagnosed mild asymmetrical highfrequency loss. On May 16 and July 18, 2014 he repeated his diagnosis. Dr. Newell opined, 

“She has been in the high noise environment for years and this could be a contributing factor. 

She states her left ear was closer to the noise source than her right ear.” 

In a letter dated August 25, 2014, OWCP requested additional factual and medical 

information from appellant including evidence that she timely provided notification of her work 

injury, that she actually experienced the work factors alleged, and that she was injured while 

performing her federal job duties. It allowed 30 days for a response. 

On August 21, 2014 the employing establishment provided noise survey information 

dated August 2014. It reviewed this survey and noted that all of the readings were below 85 

decibels. The employing establishment stated that appellant worked on a Delivery Bar Code 

Sorting Machine (DBCS) which had numerous electric motors as well as small plastic gates. It 

further described the nearby sounds of electric forklifts and industrial towing vehicles with 

warning beepers. The employing establishment stated that appellant was exposed to DBCS 

machine noise for five hours a day six days a week and that soft earplugs were available. It 

reported that she continued to experience the described noise exposures. 

Appellant responded to OWCP and stated that she was still exposed to hazardous noise at 

work. She described working for eight hours a day on loud machinery with no hearing 

protection. Appellant indicated that she worked in a warehouse setting with several machines in 

the same area running at the same time. She asserted that her hearing loss had a gradual onset 

and that she did not realize she was losing her hearing until six months ago. Appellant stated, 

“This is why I waited to until now to file my claim, I just did not know what was going on with 

me.” 

By decision dated February 9, 2015, OWCP denied appellant’s claim finding that it was 

untimely filed. It found that she filed her claim on July 28, 2014 for an occupational disease 

which she was aware of on January 1, 2009. OWCP found that appellant’s claim was not filed 

within the three-year time limitation period and that there was no evidence that her immediate 

supervisor was reasonably on notice of her injury. 
3

LEGAL PRECEDENT 

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.2 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.3 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.4 Even if a claim is not 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 or her alleged employment-related injury 

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

8119.5

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

on-the-job injury or death.6

 The Board has indicated that an employee need only be aware of a 

possible relationship between his or her condition and his or her employment to commence the 

running of the applicable statute of limitations.7 

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 her condition and 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 the employee does not know the precise nature of the impairment or whether 

the ultimate result of such affect would be temporary or permanent.8 Where the employee 

continues in the same employment after she reasonably should have been aware that she 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.9

 

ANALYSIS 

The Board finds that appellant has established that she filed a timely claim for 

compensation under the three-year time limitation of section 8122 of FECA. 

 2

 5 U.S.C. § 8122(a). 

3 Id. at § 8122(b). 

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

5

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

6 Willis E. Bailey, 49 ECAB 511 (1998); B.H., Docket No. 15-0970 (issued August 17, 2015). 

7 Edward C. Hornor, 43 ECAB 834, 840 (1992). 

8 Larry E. Young, supra note 5. 

9 Id.
4

In her notice of occupational disease claim (Form CA-2), appellant advised that she first 

became aware of her hearing loss and its relation to her federal employment in 2009. Although 

she did not file her claim or give notice to her supervisor until five years later, she continued her 

work as a postal clerk. Appellant claimed that she was exposed to loud machinery in the 

performance of her duties. The employing establishment supported that she continued to be 

exposed to noises from the DBCS machine as well as forklifts and industrial towing vehicles. As 

noted, the Board has held that, if an employee continues to be exposed to injurious working 

conditions, the time limitation begins to run on the last date of this exposure.10 

Because appellant did file a timely claim for compensation while still exposed to loud 

working conditions, the case is remanded to OWCP to further develop and adjudicate the claim. 

Following this and any other development that it deems necessary, OWCP shall issue a de novo

decision in the case. 

CONCLUSION 

The Board finds that appellant filed a timely occupational disease claim for compensation 

under 5 U.S.C. § 8122(a). 

 10 B.H., Docket No. 15-0970 (issued August 17, 2015). 
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ORDER 

IT IS HEREBY ORDERED THAT the February 9, 2015 decision of the Office of 

Workers’ Compensation Programs is reversed and the case is remanded to OWCP for further 

development consistent with this decision. 

Issued: November 5, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board