United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.R., Appellant 

and 

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD FLEET FORCES 

COMMAND, Portsmouth, VA, Employer 

__________________________________________ 

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Docket No. 17-0975 

Issued: August 9, 2017 

Appearances: Case Submitted on the Record

David G. Jennings, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 3, 2017 appellant, through counsel, filed a timely appeal from a March 10, 2017 

merit 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. 

ISSUE 

The issue is whether OWCP properly denied appellant’s hearing loss claim because it 

was untimely filed pursuant to 5 U.S.C. § 8122. 

 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.
2

FACTUAL HISTORY 

On February 1, 2017 appellant, then a 63-year-old retired rigger leader, filed an 

occupational disease claim (Form CA-2) alleging that he developed bilateral hearing loss as a 

result of employment-related noise exposure. He first became aware of his condition and of its 

relationship to his federal employment on August 10, 2008. Appellant explained that he delayed 

filing the Form CA-2 for more than 30 days after August 10, 2008 because it only recently came 

to his attention that he could file a claim. On the reverse side of the form, appellant’s supervisor 

reported that appellant had retired on December 2, 2011, that appellant had not reported his 

condition until February 1, 2017, and that the claim was untimely filed. 

By letter dated February 1, 2017, 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 the claim had been filed in a timely 

manner and 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. It also 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. Both appellant and the employing 

establishment were afforded 30 days in which to respond. 

On February 8, 2017 appellant responded to OWCP’s questionnaire explaining that he 

worked for the employing establishment from 1979 to December 2011 in various positions as a 

rigger. In all of these positions, he was exposed to hazardous noise from various pneumatic 

tools, grinding, needle guns, chipping hammers, chain falls, diesel engines, valves, generators, 

pumps, and shipboard alarms for six to eight hours per day. Appellant noted that earplugs were 

provided. His hobbies included auto repair for three to five hours per week over the past five 

years for which he used hearing protection. Appellant further reported that he was last exposed 

to work-related hazardous noise in December 2011 and had no prior hearing problems. He stated 

that he first noticed his hearing loss in 2008 when he related it to his employment because it 

could not have been caused by anything other than work. 

Appellant submitted employing establishment audiograms performed as part of a hearing 

conservation program dated November 7, 2003 through November 30, 2011. The audiograms 

referenced his October 6, 1991 baseline audiogram which revealed the following decibel (dB) 

losses at 500, 1,000, 2,000, and 3,000 hertz (Hz): 15, 5, 5, and 15 for the right ear and 25, 25, 

15, and 15 for the left ear. The baseline audiogram indicated normal hearing and showed 

nonratable loss in both ears. The most recent November 30, 2011 audiogram revealed the 

following dB losses at 500, 1,000, 2,000, and 3,000 Hz: 20, 15, 10, and 20 for the right ear and 

40, 35, 30, and 20 for the left ear. 

No further response was received from the employing establishment. 

By letter dated February 13, 2017, counsel for appellant argued that appellant’s narrative 

statement and audiograms from his employment at the employing establishment documented the 

existence of a hearing conservation program and showed that the employing establishment had 

actual knowledge of a work-related hearing loss. 
3

By decision dated March 10, 2017, OWCP denied appellant’s claim as it was untimely 

filed. It found that the evidence did not establish that the claim had been filed within three years 

of the August 10, 2008 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.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.4

 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.5

 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.6

 

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 8119.7

 The knowledge must be such as to put the 

immediate superior reasonably on notice of an on-the-job injury or death.8

 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.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 exposure is sufficient to 

constructively establish actual knowledge of a hearing loss, such as to put the immediate 

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

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

515 (2001). 

5 Id. at § 8122(b). 

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

7

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

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

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

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

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 

Appellant stated on his claim form that he was aware of a relationship between the 

claimed condition and his federal employment as of August 10, 2008. 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 is no longer exposed to noise. 

Appellant retired from federal employment on December 2, 2011. Therefore, the three-year time 

limitation began to run on December 2, 2011. As appellant did not file his occupational disease 

claim until February 1, 2017, the Board finds that it was not filed within the three-year time 

period under section 8122(b).13

Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if 

his immediate supervisor had actual knowledge of the injury within 30 days of his last exposure 

to hazardous noise in federal employment, i.e., within 30 days of his last exposure no later than 

December 2, 2011.14 The Board finds that the employing establishment conducted a program of 

audiometric testing for which appellant submitted a series of audiograms obtained prior to his 

retirement.15 These audiograms obtained as part of a hearing conservation program, are 

sufficient to establish actual knowledge of the claimed hearing loss within 30 days of his last 

noise exposure which occurred no later than December 2, 2011.16 Of note, an October 6, 1991 

baseline audiogram revealing the following dB losses at 500, 1,000, 2,000, and 3,000 Hz: 15, 5, 

5, and 15 for the right ear and 25, 25, 15, and 15 for the left ear. In addition, the most recent 

November 30, 2011 audiometric test revealed the following dB losses at 500, 1,000, 2,000, and 

3,000 Hz: 20, 15, 10, and 20 for the right ear and 40, 35, 30, and 20 for the left ear. 

The audiograms from the hearing conservation program showed a progression in 

appellant’s left-sided hearing loss from a nonratable loss on October 6, 1991 to a ratable loss as 

of November 30, 2011.17 As such, the Board finds that the hearing conservation audiograms 

from October 6, 1991 through November 30, 2011 demonstrate a progressive worsening of 

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

12 See 5 U.S.C. § 8122(a)(1); Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.801.3; G.C., Docket 

No. 12-1783 (issued January 29, 2013); Ralph L. Dill, supra note 10. 

13 G.C., id. 

14 Supra note 7. 

15 Supra note 13. 

16 Id. 

17 Under FECA, hearing loss impairments are determined by the average of the hearing levels at 500, 1,000, 

2,000, and 3,000 cycles per second. See American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides) (6th ed. 2009) at section 11.2d, page 250. If the average is less than 25, the hearing 

impairment is not ratable. 
5

appellant’s hearing loss. This ratable hearing loss18 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 December 2, 2011.19 Therefore, appellant’s hearing loss 

claim is considered timely.20

The case must, therefore, be remanded for OWCP to address the merits of the claim. 

After any further development as deemed necessary, it shall issue a de novo decision. 

CONCLUSION 

The Board finds that appellant’s claim for hearing loss was timely filed. The employing 

establishment had actual knowledge of a possible work-related hearing loss within 30 days of 

December 2, 2011, the date appellant was last exposed to hazardous noise at work. 

ORDER 

IT IS HEREBY ORDERED THAT the March 10, 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 9, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 18 See A.M.A., Guides 250-51.

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

20 Id.