United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.S., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL SEA 

SYSTEMS COMMAND, San Diego, CA, 

Employer 

__________________________________________ 

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Docket No. 16-1221 

Issued: November 8, 2016 

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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On May 18, 2016 appellant filed a timely appeal from an April 21, 2016 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 this case. 

ISSUE 

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

§ 8122. 

FACTUAL HISTORY 

On December 9, 2015 appellant, then a 60-year-old electronics engineer, filed an 

occupational disease claim (Form CA-2) alleging bilateral hearing loss and tinnitus as a result of 

 1

 5 U.S.C. § 8101 et seq.
2

employment-related noise exposure. He reported that his hearing loss occurred from hazardous 

noise exposure at the employing establishment which started while he worked in the machine 

shop and continued as he worked in other noisy areas. Appellant first became aware of his 

condition and of its relationship to his employment on December 1, 2005. He remained 

employed at the employing establishment as an electronics engineer. Appellant underwent 

medical evaluation on November 23, 2015 and notified the employing establishment on 

November 24, 2015. A November 23, 2015 audiogram was submitted with his claim. 

By letter dated December 15, 2015, OWCP requested additional factual information from 

both appellant and the employing establishment. Appellant was requested to provide 

information regarding whether he continued to be exposed to hazardous noise at work and if not, 

his date of last exposure. OWCP noted that it did not appear his claim was filed in a timely 

manner as he first because aware of his condition and its relationship to his employment on 

December 1, 2005. It requested evidence to establish that his claim was filed within three years 

of the date he became aware of a relationship between his condition and his employment. 

OWCP requested that the employing establishment provide noise survey reports for each site 

where appellant worked, the sources and period of noise exposure for each location, and copies 

of all medical examinations pertaining to hearing or ear problems. 

By letter dated December 29, 2015, appellant responded to OWCP’s questionnaire stating 

that his work continued to expose him to hazardous noise in waterfront operations and other 

duties. He noted that he only recently became aware of his hearing condition when his family 

and coworkers suggested that he have his hearing tested. Appellant stated that he used the 

December 1, 2005 date as he remembered having his hearing tested as part of his physical 

examination requirement for certification to work with explosives. He reported that he did not 

receive those test results until his latest hearing test in November 2015. Appellant described his 

employment duties stating that his career working for employing establishment exposed him to 

hazardous noise from machine shops, ordnance operations, waterfront operations, and disposal of 

unserviceable munitions on open detonation ranges. 

In a January 5, 2016 narrative statement, R.A., appellant’s supervisor, reported that he 

agreed with appellant’s statements. He noted that he had been appellant’s supervisor for the last 

three years and had been assigning him duties since 2005 which exposed him to prolonged and 

intermittent noise from working around piers, barges, and machine shops. R.A. reported no 

knowledge of periodic audiometric evaluations to document hearing loss. 

By letter dated January 26, 2016, OWCP requested the employing establishment provide 

additional information pertaining to hearing tests, medical assessments, diagnostic reports, a 

copy of appellant’s job description, and whether he participated in a hearing conservation 

program. In another letter dated January 26, 2016, it requested appellant provide a copy of his 

audiometric evaluation from December 1, 2005 and also asked whether he participated in a 

hearing conservation program. 

By letter dated February 5, 2016, appellant reported that he had requested all audiograms 

from the employing establishment clinic, but he had not received an audiogram from 

December 1, 2005. However, he received four other audiograms. Appellant noted that he had 
3

only guessed that December 1, 2005 was the date of his last audiogram because he could not 

specifically remember the date and estimated it occurred 10 years ago. 

In support of his claim, appellant submitted audiograms dated January 3, 2001, 

December 16, 2002, September 16, 2010, and December 21, 2015. 

In a February 17, 2016 e-mail correspondence, R.A. reported that as appellant’s 

supervisor for the last two years, he did not have any records pertaining to his hearing loss. He 

noted that he believed the employing establishment had eliminated the hearing conservation 

program years ago during reorganization. An official position description for electronics 

engineer was submitted which indicated appellant began his employment on December 16, 1999. 

By decision dated April 21, 2016, OWCP denied appellant’s claim finding that it was 

untimely filed. It found no evidence that the claim had been filed within three years of the 

December 1, 2005 injury date or that his immediate supervisor had actual knowledge of his 

injury within 30 days of the injury date. 

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.2 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.3 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.4 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.5 

Even if a claim is not filed within the three-year time limitation period, 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 8119.6

 The knowledge must be such as to put the 

immediate superior reasonably on notice of an on-the-job injury or death.7

 The Board has 

indicated that an employee need only be aware of a possible relationship between his or her 

 2 C.D., 58 ECAB 146 (2006); David R. Morey, 55 ECAB 642 (2004); Mitchell Murray, 53 ECAB 601 (2002). 

3 W.L., 59 ECAB 362 (2008); Gerald A. Preston, 57 ECAB 270 (2005); Laura L. Harrison, 52 ECAB 

515 (2001). 

4 Id. at § 8122(b). 

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

6

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

7 Willis E. Bailey, 49 ECAB 511 (1998); B.H., Docket No. 15-0970 (issued August 17, 2015). 
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condition and his or her employment to commence the running of the applicable statute of 

limitations.8

ANALYSIS 

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

compensation under the three-year time limitation of section 8122 of FECA.9

In his notice of occupational disease, appellant advised that he first became aware of his 

hearing loss and its relation to his federal employment in 2005. Although he did not file his 

claim or give notice to his supervisor until November 24, 2015, he continued to work as an 

electronics engineer for the employing establishment. Appellant claimed that he was exposed to 

hazardous noise from machine shops, ordnance operations, waterfront operations, and disposal of 

unserviceable munitions on open detonation ranges. R.A., his supervisor, agreed with 

appellant’s statements regarding his prolonged and hazardous noise exposure. As such, the 

employing establishment did not contest that he continued to be exposed to hazardous noise 

during his employment as an electronics engineer. 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 

As appellant filed a timely claim for compensation while still exposed to hazardous noise, 

the case is remanded to OWCP to further develop and adjudicate the claim to determine whether 

appellant established a compensable hearing loss.11 

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 has filed a timely occupational disease claim for 

compensation under 5 U.S.C. § 8122. 

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

9 J.C., Docket No. 15-1596 (issued November 5, 2015). 

10 B.H., Docket No. 15-970 (issued August 17, 2015). 

11 Supra note 9. 
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ORDER 

IT IS HEREBY ORDERED THAT the April 21, 2016 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 8, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board