United States Department of Labor

Employees’ Compensation Appeals Board

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J.C., Appellant

and

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer

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Docket No. 18-1178

Issued: February 11, 2019

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 May 17, 2018 appellant filed a timely appeal from a January 31, 2018 merit decision 

and an April 19, 2018 nonmerit 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.

ISSUES

The issues are: (1) whether appellant filed a timely claim for compensation pursuant to 

5 U.S.C. § 8122; and (2) whether OWCP properly denied appellant’s request for reconsideration 

of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

 

1 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY

On August 1, 2017 appellant, then a 63-year-old retired sheet metal mechanic, filed an 

occupational disease claim (Form CA-2) alleging bilateral hearing loss due to his exposure to 

occupational noise while in the performance of duty. He indicated that he first became aware of 

his bilateral hearing loss and that it was caused or aggravated by his federal employment following 

an April 5, 2011 hearing evaluation. Appellant explained that the hearing evaluation revealed that 

his baseline hearing changed due to hearing loss caused by exposure to occupational noise. The 

employing establishment noted that he had retired on June 30, 2012.

In an August 9, 2017 developmental letter, OWCP requested that appellant submit 

additional evidence to establish his claim. It noted that the evidence of record was insufficient to 

establish that he had provided timely notification of his work injury. OWCP afforded appellant

30 days to submit the necessary evidence. It also requested that the employing establishment 

submit factual and medical evidence related to his noise exposure in the course of his federal 

employment.

Appellant subsequently submitted a position description and a notification of personnel 

action (SF-50) confirming that he had retired on June 30, 2012.

The employing establishment submitted hearing conservation data, including reference 

audiograms dated February 9, 2005 and February 29, 2012. Using the frequencies of 500, 1,000, 

2,000, and 3,000 cycles per second (cps) the reference audiogram dated February 9, 2005

documented appellant’s hearing as follows: -5, 0, 10, and 5 decibels in the left ear and 0, 0, 15, 

and 15 decibels in the right ear. Using the same frequencies the February 29, 2012 reference 

audiogram revealed appellant’s hearing measured as: 0, 5, 10, and 10 decibels in the left ear and 

0, 10, 15, and 20 decibels in the right ear.

In a September 7, 2017 narrative statement, appellant contended that his claim was filed in 

a timely manner because both his supervisor and the technician at the dispensary were aware of 

the injury and argued that the audiograms taken at the employing establishment were evidence of 

the injury.

By decision dated January 31, 2018, OWCP denied appellant’s claim, finding that it was 

untimely filed. It found that the date of appellant’s injury was April 5, 2011, as indicated on his 

claim form, and it noted that his claim was not filed within three years of the date of last exposure. 

OWCP further noted that appellant’s immediate supervisor did not have actual knowledge of the 

injury within 30 days of the date of last exposure. 

On March 27, 2018 appellant requested reconsideration. He submitted a narrative 

statement dated March 5, 2018 and enclosed a hearing conservation disposition dated February 9, 

2005 from the employing establishment which reported a provisional diagnosis of noise-induced 

sensorineural hearing loss. Appellant further indicated that he was sent by his supervisor back to 

the dispensary to reestablish the reference audiogram and subsequently his baseline thresholds 

were adjusted and he returned to work. He contended that this was evidence that both the 

dispensary and his immediate supervisor had knowledge of the injury. 
3

By decision dated April 19, 2018, OWCP denied appellant’s request for reconsideration 

without conducting a merit review because he failed to advance a relevant legal argument or submit 

any relevant and pertinent new evidence. It found that the evidence appellant submitted on 

reconsideration was irrelevant to the issue of whether he had filed a timely claim for compensation 

pursuant to 5 U.S.C. § 8122.

LEGAL PRECEDENT -- ISSUE 1

Under section 8122(a) of FECA2a claimant has three years to file a claim for 

compensation.3 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 or her condition and his or her 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.4 Where 

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

to run on the date of his or her last exposure to the implicated factors.5 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 or her employment and the compensable disability 

or should have been aware of this relationship by exercising reasonable diligence.6

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 or her 

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.7 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.8

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 

 

2 5 U.S.C. § 8122(a).

3 M.G., Docket No. 17-1334 (issued December 18, 2017); Duet Brinson, 52 ECAB 168 (2000); William F. 

Dorson, 47 ECAB 253, 257 (1995); see 20 C.F.R. § 10.101(b).

4 M.G., id.

5 M.N., Docket No. 17-0931 (issued August 15, 2017); Larry E. Young, 52 ECAB 264 (2001).

6 5 U.S.C. § 8122(b); I.W., Docket No. 15-1691 (issued February 11, 2016); Bennie L. McDonald, 49 ECAB 509, 

514 (1998).

7

Id. at § 8122(a)(1).

8 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

the immediate supervisor on notice of an on-the-job injury.9 A hearing loss identified on such a 

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

work injury.10

ANALYSIS -- ISSUE 1

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

Appellant stated on his CA-2 claim form that he was aware of a relationship between the 

claimed condition and his federal employment as of April 5, 2011. Under section 8122(b), the 

time limitation begins to run when he 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 June 30, 2012. Therefore, the three-year time limitation began to run 

on June 30, 2012. As appellant did not file his occupational disease claim until August 1, 2017, 

the Board finds that it was untimely filed under section 8122(b).11

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 had been given to his immediate superior within 30 days. The Board 

has previously held, however, that participation in an employing establishment hearing 

conservation program can also establish constructive notice of injury.12 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-the-job injury.13

Herein, the results of a February 9, 2005 reference audiogram at the frequency levels of 

500, 1,000, 2,000, and 3,000 cps revealed decibel losses of -5, 0, 10, and 5 decibels in the left ear 

and 0, 0, 15, and 15 decibels in the right ear. Subsequently, a February 29, 2012 reference 

audiogram at the same frequency levels revealed decibel losses of 0, 5, 10, and 10 decibels in the 

left ear and 0, 10, 15, and 20 decibels in the right ear. 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 June 30, 2012, the date 

of his retirement.

14

 Therefore, based on this positive test result from the employing 

 

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

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

11 See supra note 6.

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

April 8, 2016).

13 See M.N., Docket No. 17-0931 (issued August 15, 2017); W.P., Docket No. 15-0597 (issued January 27, 2016).

14 See supra notes 9, 10, 12, and 13.
5

establishment’s hearing conservation program, appellant’s hearing loss claim is considered 

timely.15

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

carrying out this development, OWCP shall issue a de novo decision.16

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the January 31, 2018 decision of the Office of 

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

consistent with this decision of the Board.

Issued: February 11, 2019

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

 

15 M.N., supra note 13.

16 In light of the Board’s disposition of the timeliness issue, the second issue of whether OWCP properly denied 

appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a) is moot.