United States Department of Labor

Employees’ Compensation Appeals Board

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W.S., Appellant

and

DEPARTMENT OF THE ARMY, ANNISTON 

ARMY DEPOT, Anniston, AL, Employer

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Docket No. 22-0372

Issued: August 10, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January10, 2022 appellant filed a timely appeal from a December 10, 2021 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 the case.2

ISSUE

The issue is whether appellant has met his burden of proof to establish that he sustained 

noise exposure in the performance of duty, as alleged.

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the issuance ofDecember 10, 2021 decision, OWCP receivedadditional evidence. 

However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the 

case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered 

by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

FACTUAL HISTORY

On August 23, 2021 appellant, then a 62-year-old mechanical parts repairer, filed an 

occupational disease claim (Form CA-2) alleging that he developed binaural hearing loss due to 

noise exposure causally related to factors of his federal employment. He noted that he first became 

aware of the condition on April 3, 2010 and realized its relation to his federal employment on 

April 2, 2021.

With his claim, appellant attached audiograms and audiology reports dated November 3, 

2003 to August 10, 2021. He also submitted an occupational hearing test questionnaire and 

August18 and 22, 2021 letters from the employing establishment, which informed him that his 

hearing had worsened significantly since his hearing baseline was determined. In the August 18, 

2021 letter, the employing establishment also indicated that appellant’s left ear hearing loss was 

considered an Occupational Safety and Health Administration (OSHA) reportable hearing loss. 

In a development letter dated November 3, 2021, OWCP informed appellant of the 

deficiencies of his claim. It advised him of the type of evidence necessary to establish his claim 

and provided a questionnaire for his completion regarding noise exposure. OWCP afforded 

appellant 30 days to respond.

In a separate letter dated November 3, 2021, OWCP requested that the employing 

establishment provide information regarding appellant’s claimed noise exposure. Specifically, it 

asked the employing establishment to provide comments from a knowledgeable supervisor 

regarding the accuracy of appellant’s statements relative to his claim and to indicate whether it 

concurred with his allegations. OWCP requested information regarding the locations of the job 

sites where exposure allegedly occurred, the sources of the noise exposure, the decibel and 

frequency level (per the noise survey report) for each job site, the period of exposure (hours per 

day and days per week), and the types of ear protection provided. It also asked the employing 

establishment to provide copies of appellant’s job sheet, employment record, and application for 

federal employment (Form SF-171). OWCP noted that, in the absence of a full reply from the 

employing establishment, it would accept his allegations as factual.

OWCP received environmental studies from 2014 and noise sampling data from May 4, 

2004 through September 7, 2021. 

In a December 2, 2021 e-mail, J.M., appellant’s supervisor, confirmed that appellant 

worked in buildings where he was exposed to noise. J.M. indicated the sources of noise were large 

machinery, large and small Keller impact wrenches, and canning of the engine and large 

sledgehammer. The period of exposure was noted as 18 years, 9 to 11 hours per day, 6 days per

week. J.M. indicated that appellant wore ear protection. 

On December 7, 2021 OWCP received appellant’s November 30, 2021 signed response to 

the development questionnaire. Appellant provided the locations of the job sites where he was 

exposed to noise. He identified the sources of noise as air tools, 1/2 to 3/8 drive impact, and the 

period of exposure as 9 to10 hours per day. Appellant indicated that he used soft yellow neon 

blasts ear plugs. He indicated that he was last exposed to noise at work in 2019. Appellant also 

indicated that he had ringing in both ears and no hobbies other than fishing. 
3

By decision dated December 10, 2021, OWCP denied appellant’s claim, finding that the 

evidence of record was insufficient “to establish a history of noise exposure over the course of 

your employment.” It explained that evidence of record “did not contain a detailed description of 

the source of noise, or your employment-related history of exposure alleged to have caused hearing 

loss.” OWCP concluded, therefore, that the requirements had not been met to establish an injury 

as defined by FECA.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA, that an injury was sustained in the performance of duty as alleged, 

and that any disability or medical condition for which compensation is claimed is causally related 

to the employment injury.4 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, an employee must submit the following: (1) a factual statement identifying 

employment factors alleged to have caused or contributed to the presence or occurrence of the 

disease or condition; (2) medical evidence establishing the presence or existence of the disease or 

condition for which compensation is claimed; and (3) medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the employee. 6

Appellant’s burden of proof includes the submission of a detailed description of the 

employment factors, which he believes caused or adversely affected a condition for which 

compensation is claimed.7

ANALYSIS

The Board finds that appellant has met his burden of proof to establish noise exposure 

causally related to factors of his federal employment, as alleged. 

In support of his claim, appellant noted that he had ringing in his ears and provided copies 

of audiology reports dated November 2, 2003 to August 10, 2021. Regarding his exposure to 

hazardous noise at the employing establishment, he responded to the November 3, 2021 OWCP 

development questionnaire and noted that he worked in buildings where he was exposed to noise 

9 to 10 hours per day. Appellant related that he used soft yellow neon blasts ear plugs at work and

3

Id.

4 D.J., Docket No. 19-1387 (issued December 20, 2019);Elaine Pendleton, 40 ECAB 1143 (1989).

5

Id.

6 L.C., Docket No. 19-1301 (issued January 29, 2020);Roy L. Humphrey, 57 ECAB 238 (2005).

7

S.J., Docket No. 17-1798 (issued February 23, 2018).
4

that he had no hobbies other than fishing. He also submitted statements from the employing 

establishment indicating that his hearing had worsened significantly since his hearing baseline was 

determined, and that his left ear hearing loss was OSHA reportable.

In response to the November 3, 2021 OWCP development questionnaire, the employing 

establishment confirmed that appellant worked in buildings where he was exposed to noise. The 

sources of noise were large machinery, large and small Keller impact wrenches, and canning of 

the engine and large sledgehammer. The employing establishment also confirmed that his period 

of exposure to noise at work was 18 years, 9 to 11 hours per day, 6 days a week, and that the 

hearing protection worn was soft yellow neon blasts. It also submitted records pertaining to noise 

sampling data dated from May 4, 2004 through September 7, 2021. As such, the employing 

establishment supported appellant’s claim that he was exposed to multiple noise sources while 

working at the employing establishment.

Given the circumstances presented, the Board finds that appellant’s allegation that he was 

exposed to various sources of hazardous noise during the performance of his federal employment 

is accepted as factual. Appellant, therefore, has sufficiently identified the employment factors 

alleged to have caused or contributed to his condition.8 

However, as OWCP denied the factual portion of the claim, it did not review or develop 

the medical evidence with regard to the issue of causal relationship. Accordingly, the Board will 

set aside OWCP’s December 10, 2021 decision and remand the case for consideration of the 

medical evidence with regard to whether appellant has established hearing loss causally related to 

the accepted employment exposure. After this and other such further development as deemed 

necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that appellant has met his burden of proof to establish that he sustained

noise exposure in the performance of duty, as alleged. The Board further finds, however, that this

case is not in posture for decision regarding whether he has established hearing loss causally 

related to the accepted employment exposure.

8

Supra note 6.
5

ORDER

IT IS HEREBY ORDERED THAT the December 10, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed in part and set aside in part. The case is remanded 

for further proceedings consistent with this decision of the Board.

Issued: August 10, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board