United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.N., Appellant 

and 

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA, Employer 

__________________________________________ 

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Docket No. 17-0931 

Issued: August 15, 2017 

Appearances: Case Submitted on the Record

David G. Jennings, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 24, 2017 appellant, through counsel, filed a timely appeal from a March 2, 

2017 decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.3

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 

3

 The Board notes that appellant submitted additional evidence following the March 2, 2017 decision. Because 

the Board’s jurisdiction is limited to evidence that, was before OWCP at the time it issued its final merit decision, 

the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 

ECAB 126 (2005). 
2

ISSUE 

The issue is whether appellant filed a timely claim for compensation under 5 U.S.C. 

§ 8122. 

FACTUAL HISTORY 

On November 17, 2016 appellant, then a 64-year-old retired training instructor, filed an 

occupational disease claim (Form CA-2) alleging that, following an employing establishment 

hearing evaluation on March 30, 2000, he first became aware of his bilateral hearing loss and 

first realized that it was caused or aggravated by his federal employment. He explained that his 

hearing worsened each year that he worked at the employing establishment. Appellant stated 

that he did not know that a hearing loss claim was available until he retired, and that he was not 

told of his hearing loss at annual physical examinations. The employing establishment noted that 

he retired on April 3, 2007. 

In a narrative statement dated October 20, 2016, appellant related that he was currently 

retired, and that he did not relate his hearing loss to his federal employment until a hearing test 

on April 5, 2012 by his treating physician. 

On November 18, 2016 OWCP requested that appellant submit additional evidence to 

establish his claim. It noted that the evidence of record did not establish that he provided timely 

notification of his work injury. OWCP also requested that the employing establishment submit 

any factual and medical evidence related to appellant’s noise exposure in the course of his 

federal employment. 

By letter dated December 15, 2016, the employing establishment responded to OWCP’s 

requests. It noted that appellant was routinely exposed to hazardous noise in the course of his 

employment, but that he did not submit his claim within three years of becoming aware of his 

hearing loss and of its relationship to his employment. The employing establishment further 

noted that it provided and appellant used hearing protection. 

By decision dated December 21, 2016, OWCP denied appellant’s claim as it was 

untimely filed. It found that his claim was not timely filed within three years of the date of last 

exposure or that his immediate supervisor had actual knowledge within 30 days of the date of 

last exposure. OWCP found that the date of appellant’s last exposure was his retirement date, 

April 3, 2007. 

On January 11, 2017 appellant, through counsel, filed a request for reconsideration. With 

the request for reconsideration, counsel attached copies of audiograms from appellant’s federal 

employment dating from August 14, 1978 through March 29, 2007, reflecting the existence of a 

hearing conservation program. 

An employing establishment hearing conservation data form related the results of an 

April 10, 1985 reference audiogram and the audiogram results from March 29, 2007. Using the 

frequencies of 500, 1,000, 2000, and 3,000 cycles per second (cps) the reference audiogram 

revealed the following: left ear 10, 10, 5, and 10 decibels; right ear 5, 5, 10, and 20 decibels. 
3

Using the same frequencies the March 29, 2007 audiogram revealed the following: left ear 10, 

15, 25, and 45 decibels; right ear 10, 15, 30, and 50 decibels. Counsel contended that the 

audiograms were reflective of the existence of a hearing conservation program and demonstrate 

that the employing establishment had actual knowledge of an employment-related hearing loss. 

By decision dated March 2, 2017, OWCP reviewed the merits of appellant’s claim and 

denied modification of its prior decision, finding that because appellant stated that he had not 

related his hearing loss to his work until April 5, 2012, his claim remained untimely filed. 

LEGAL PRECEDENT 

Under section 8122(a) of FECA4 a claimant has three years to file a claim for 

compensation.5 In a case of occupational disease, the Board has held that 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. Such awareness is 

competent to start the limitation period even if the employee does not know the nature of the 

impairment or whether the ultimate result of such affect would be temporary or permanent.6 

Where the employee continues in the same employment after such awareness, the time limitation 

begins to run on the date of his last exposure to the implicated factors.7 For latent disability 

cases, section 8122(b) of FECA provides that the time limitation does not begin to run until the 

claimant is aware of the causal relationship between his employment and the compensable 

disability or should have been aware of this relationship by exercising reasonable diligence.8

Even if the claim is not filed within the three-year period, it may be regarded as timely 

under section 8122(a)(1) if appellant’s immediate supervisor had actual knowledge of his alleged 

employment-related injury within 30 days such that the immediate superior was put reasonably 

on notice of an on-the-job injury or death.9 In interpreting section 8122(a)(1) of FECA, OWCP 

procedures provide that, if the employing establishment provides 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.10

The Board has held that a program of periodic audiometric examinations conducted by an 

employing establishment in conjunction with an employee testing program for hazardous noise 

 4

 5 U.S.C. § 8122(a). 

5 Duet Brinson, 52 ECAB 168 (2000); William F. Dorson, 47 ECAB 253, 257 (1995); see 20 C.F.R. § 10.101(b). 

6 Duet Brinson, id.

7 Larry E. Young, 52 ECAB 264 (2001). 

8

 5 U.S.C. § 8122(b); Bennie L. McDonald, 49 ECAB 509, 514 (1998). 

9 Id. at § 8122(a)(1). 

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6(c) (March 1993); L.C., 57 ECAB 

740 (2006); Ralph L. Dill, 57 ECAB 248 (2005). 
4

exposure 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.11 A hearing loss identified on 

such a test would constitute actual knowledge on the part of the employing establishment of a 

possible work injury.12 

ANALYSIS 

The Board finds that this case is not in posture for decision. 

Appellant clearly indicated that he was aware of a relationship between his claimed 

hearing loss and his federal employment as of March 30, 2000. He explained that he underwent 

an employing establishment evaluation on that date which revealed a hearing loss. Under section 

8122(b), the time limitation begins to run when appellant became aware of causal relationship, 

or, if he continued to be exposed to noise after awareness, the date he was no longer exposed to 

noise. Appellant was last exposed to hazardous noise from his federal employment on 

April 3, 2007. Therefore the three-year time limitation began to run no later than April 3, 2007. 

As appellant did not file his occupational disease claim until March 28, 2014, the Board finds 

that it was not filed within the three-year time period under section 8122(a). 

Appellant’s claim would still be regarded as timely filed under 5 U.S.C. § 8122 if his 

immediate superior had actual knowledge of the injury within 30 days or under section 8122(a) if 

written notice of injury was given to his immediate superior within 30 days. However, 

participation in an employing establishment hearing conservation program can also establish 

constructive notice of injury.13 A positive test result from an employing establishment program 

of regular audiometric examination as part of a hearing conservation program is sufficient to 

establish knowledge of hearing loss so as to put the immediate superior on notice of an on-thejob injury.14

Of note, the April 10, 1985 audiometric test at the frequency levels of 500, 1,000, 2,000, 

and 3,000 cps revealed decibel losses of 5, 5, 10, and 20 decibels on the right. Subsequently, a 

March 29, 2007 audiometric test at the frequency levels of 500, 1,000, 2,000, and 3,000 cps 

revealed decibel losses of 10, 15, 30, and 50 decibels on the right. This demonstrates a hearing 

loss which constitutes actual knowledge by the employing establishment of a possible 

work-related hearing loss within 30 days of his last noise exposure which occurred no later than 

April 3, 2007.15 Therefore, appellant’s hearing loss claim is considered timely.16

 11 L.B., Docket No. 12-1548 (issued January 10, 2013); James W. Beavers, 57 ECAB 254 (2005). 

12 L.E., Docket No. 14-1551 (issued October 28, 2014). 

13 See J.C., Docket No. 15-1517 (issued February 25, 2016); see also M.W., Docket No. 16-0394 (issued 

April 8, 2016). 

14 See W.P., Docket No. 15-0597 (issued January 27, 2016). 

15 See supra note 12. 

16 Id. 
5

The case must be remanded for OWCP to address the merits of the claim. After carrying 

out this development, OWCP shall issue a de novo decision.17

CONCLUSION 

The Board finds that this case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the March 2, 2017 decision of the Office of 

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

development consistent with this decision. 

Issued: August 15, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 Id.