United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.E., Appellant 

and 

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer 

__________________________________________ 

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Docket No. 16-1391 

Issued: May 9, 2017 

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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 23, 2016 appellant filed an appeal of an April 13, 2016 merit decision and a 

May 25, 2016 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(e), the Board has jurisdiction over the merits of this case. 

ISSUES 

The issues are: (1) whether appellant filed his compensation claim within the applicable 

time limitation provisions of FECA; and (2) whether OWCP abused its discretion in denying 

appellant’s request for a review of the written record. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

Appellant, a 64-year-old retired welder, filed an occupational disease claim (Form CA-2) 

on January 5, 2016, alleging that he developed bilateral hearing loss causally related to factors of 

his federal employment. He stated that he first became aware that he had sustained hearing loss 

and related it to factors of his federal employment on January 1, 1983.2

By letter dated January 6, 2016, OWCP advised appellant that he needed to submit 

additional factual and medical evidence in support of his claim. It afforded him 30 days to submit 

the requested information. Appellant did not submit any additional evidence. 

By decision dated April 13, 2016, OWCP denied appellant’s claim, finding that he failed to 

file a timely claim under section 8122. It noted that the date of injury was January 1, 1983 and that 

he filed his claim for compensation on January 5, 2016. OWCP further noted that there was no 

evidence that his immediate supervisor had actual knowledge within 30 days of the date of injury. 

On May 16, 2016 appellant filed a request for a review of the written record by an OWCP 

hearing representative. 

In a decision dated May 25, 2016, OWCP denied appellant’s request for review of the 

written record as untimely filed pursuant to 5 U.S.C. § 8124. It informed appellant that his case 

had been considered in relation to the issues involved and that the request was further denied for 

the reason that the issue in this case could be addressed by requesting reconsideration from the 

district office and submitting evidence not previously considered. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8122(a) of FECA states, “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 his 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 A claim, however, would still be 

regarded as timely under section 8122(a)(1) of FECA if the immediate superior had actual 

knowledge of the injury within 30 days. The knowledge must be such as to put the immediate 

superior reasonably on notice of an on-the-job injury or death.6

 2

 A January 7, 2016 memorandum of telephone call indicates that appellant worked as a welder with the 

employing establishment at Puget Sound Naval Base from 1981 to 1983. 

3

 5 U.S.C. § 8122(a). 

4 Id. at § 8122(b). 

5 J.P., 59 ECAB 178 (2007); Linda J. Reeves, 48 ECAB 373 (1997). 

6 Id.
3

ANALYSIS -- ISSUE 1 

Appellant first became aware of his bilateral hearing loss condition and its relationship to 

his federal employment on January 1, 1983. The time limitation for filing the claim began to run 

on January 1, 1983, the date that appellant became aware of his bilateral hearing loss and its 

relationship to his employment.7

 Appellant has acknowledged that he knew of the condition and 

the possible relationship to his employment since January 1, 1983. He has provided no factual or 

medical evidence indicating that he discovered a latent condition. Therefore, this is not a case in 

which appellant filed a claim within the time limitation. Since appellant did not file a claim until 

January 5, 2016, it was untimely filed within the three-year period of limitation. 

In addition, there is no evidence of record indicating that his immediate supervisor had 

actual knowledge of the injury within 30 days, or that anything occurred to make his supervisor 

reasonably aware that appellant sustained an occupational disease or condition relating to his 

employment.8

 The record therefore does not support that appellant satisfied this requirement. 

Appellant may submit additional evidence, together with a written request for 

reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. 

§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with 

a decision of the Secretary is entitled, on request made within 30 days after the date of the 

issuance of the decision, to a hearing on his claim before a representative of the Secretary.9 

Section 10.615 of the federal regulations implementing this section of FECA provides that a 

claimant shall be afforded a choice of an oral hearing or a review of the written record.10 The 

request must be sent within 30 days (as determined by postmark or other carrier’s date marking) 

of the date of the decision for which a hearing is sought.11 A hearing is a review of an adverse 

decision by an OWCP hearing representative. Initially, the claimant can choose between two 

formats: an oral hearing or a review of the written record. In addition to the evidence of record, 

the claimant may submit new evidence to the hearing representative.12 A request for either an 

oral hearing or a review of the written record must be submitted, in writing, within 30 days of the 

date of the decision for which the hearing is sought.13 A claimant is not entitled to a hearing if 

 7 See supra note 2 at § 8122(b). See also James W. Beavers, 57 ECAB 254 (2005). 

8 Roger W. Robinson, 54 ECAB 846 (2003). 

9

 5 USC § 8124(b)(1). 

10 20 CFR § 10.615. 

11 Id. at § 10.616(a). 

12 20 CFR § 10.615. 

13 Id. at § 10.616(a). 
4

the request is not made within 30 days of the date of the decision.14 OWCP has discretion, 

however, to grant or deny a request that is made after this 30-day period.15 In such a case, it will 

determine whether a discretionary hearing should be granted and, if not, will so advise the 

claimant with reasons.16

While a claimant may not be entitled to a hearing as a matter of right if the request is 

untimely, OWCP has the discretionary authority to grant the request and must properly exercise 

such discretion.17

ANALYSIS -- ISSUE 2 

On May 20, 2016 OWCP received appellant’s request for review of the written record. 

Because he did not request review within 30 days of the April 13, 2016 decision, appellant was 

not entitled to a hearing as a matter of right under section 8124(b)(1). OWCP considered 

whether to grant a discretionary review and correctly advised appellant that his case had been 

considered in relation to the issue involved and that the request was further denied for the reason 

that the issue in the case could be addressed by requesting reconsideration from the district office 

and submitting evidence not previously considered. 

CONCLUSION 

The Board finds that appellant did not file his compensation claim within the applicable 

time limitation provisions of FECA. The Board further finds that OWCP did not abuse its 

discretion in denying appellant’s request for a review of the written record. 

 14 James Smith, 53 ECAB 188 (2001). 

15 20 CFR § 10.616(b). 

16 Supra note 14. 

17 See id.; Cora L. Falcon, 43 ECAB 915 (1992); Mary B. Moss; 40 ECAB 640 (1989); Rudolph Bermann, 26 

ECAB 354 (1975). 
5

ORDER 

IT IS HEREBY ORDERED THAT the May 25 and April 13, 2016 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: May 9, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board