United States Department of Labor

Employees’ Compensation Appeals Board

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T.R., Appellant

and

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer

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Docket No. 21-1167

Issued: April 4, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On July 26, 2021 appellant filed a timely appeal from a June 9, 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 this case.

ISSUE

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

§ 8122.

FACTUAL HISTORY

On March 16, 2020 appellant, then a 68-year-old retired benchmarkingspecialist (nuclear), 

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

1

5 U.S.C. § 8101 et seq.
2

exposure to hazardous noise while in the performance of duty. He noted that he first became aware 

of his hearing loss and realized its relation to his federal employment on January 1, 1993. 

Appellant retired effective January 3, 2008.

Appellant submitted a statement dated March 16, 2020, wherein he recounted that he had 

worked for the U.S. Air Force from 1972 to 1976 in AFT control and warning. He stated that he 

was exposed to two hours of noise per day from a radar magnetron and a thyratron, and that he 

used provided safety devices to protect against noise exposure. From 1976 to 1993, appellant

worked at the employing establishment as a shopfitter during which time he was exposed to eight 

hours of noise per day from chipping guns, grinders, sanders, roto hammers, descalers, motors, 

pumps, generators, cranes, and forklifts. He did not indicate whether safety devices were provided 

or used to protect against noise exposure. From 1993 to 2001, appellant worked at the employing 

establishment as a planner and estimator. He indicated that he was exposed to noise from 

occasional oversight of operations onboard ship. Appellant did not indicate the number of hours 

of exposure per day in this position, butnoted that safety devices were provided and used to protect 

against noise exposure. From 2001 to 2008, he worked at the employing establishment as a 

benchmark specialist, where he experienced no significant exposure to noise. From 2018 to 2019, 

appellant worked at CDI as a planner and estimator, where he experienced no noise exposure 

except when in Japan during ship checks. He indicated that safety devices were provided and used 

to protect against noise exposure. Appellant further noted that he engaged in hunting as a hobby. 

He stated that he was last exposed to hazardous noise at work in 2008.

Hearing conservation data received on April 1, 2020 recorded audiometric findings 

obtained on July 10, 2006 at the frequency levels of 500, 1,000, 2,000, and 3,000 hertz (Hz) of 

losses for the right ear of 0, 0, 5, and 5 decibels (dBs) and for the left ear of 5, 0, 5, and 10 dBs. 

Testing on July 25, 2006 at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz demonstrated

losses for the right ear of 5, 0, 5, and 5 dBs and for the left ear of 0, -5, 0, and 10 dBs. A reference 

audiogram from June 27, 1984 demonstrated losses for the right ear of 5, 0, 0, and 0 dBs and for 

the left ear of 5, 0, 0, and 0 dBs. An audiometric evaluation dated February 3, 2020 was attached 

in which testing at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz demonstrated losses 

for the right ear of 5, 5, 5, and 20 dBs and for the left side of 10, 5, 10, and 25 dBs.

On October 7, 2020 OWCP referred appellant for a second opinion evaluation with

Dr. Edward Treyve, a Board-certified otolaryngologist, in order to determine whether his workrelated noise exposure was sufficient to have caused hearing loss, and if so, the extent and degree 

of appellant’s hearing loss. In a report dated December 3, 2020, Dr. Treyve reviewed the case 

record and a statement of accepted facts (SOAF), and opined that appellant’s sensorineural hearing 

loss was not due to noise exposure encountered in appellant’s civilian employment. Testing 

obtained on that date at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz demonstrated 

losses for the right ear of 5, 0, 10, and 10 dBs and for the left ear of 5, 0, 10, and 20 dBs. In a 

supplemental report dated January 7, 2021, Dr. Treyve noted that industrial audiometry was made 

available from 1984, eight years after appellant began working at the employing establishment, 

and that at that time it was entirely normal. He explained that appellant’s hearing levels in 2006, 

two years prior to retirement and 30 days after the start of employment, was normal. Dr. Treyve 

noted that appellant’s audiometry obtained on December 3, 2020 was consistent with the effects 

of presbycusis and possible recreational noise exposure, but not occupational noise exposure. He 

indicated that there was no audiometric evidence that appellant sustained noise-induced hearing 
3

loss as a result of workplace exposure and noted that appellant was diligent about ear protection. 

Dr. Treyve noted that appellant’s recreational shooting had contributed to his current hearing 

levels and that the asymmetry between the two ears would be consistent with right-handed 

shooting. He opined that appellant’s sensorineural hearing loss was not due to noise exposure 

encountered in appellant’s civilian employment. Dr. Treyve explained that appellant had bilateral 

sensorineural hearing loss at that time, which he believed was related to the combination of 

presbycusis and possible recreational noise exposure. Appellant had a history of approximately 

2,000 rounds of gunfire with recreational shooting, with hearing levels worse on the left than the 

right, which one would expect from a right-handed shooter. He noted that industrial audiometry 

in 2006, 30 years after he began working for the employing establishment and 2 years before his 

retirement, was entirely normal without evidence of noise-induced hearing loss at that time. 

Referring to the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides),

2 Dr. Treyve calculated zero percent binaural hearing 

loss. He recommended against usage of hearing amplification. 

OWCP forwarded Dr. Treyve’s report to Dr. Jeffrey Israel, a Board-certified 

otolaryngologist serving as OWCP’s district medical adviser (DMA), for review on 

January 8, 2021. In a report dated January 12, 2021, Dr. Israel reviewed the SOAF and case 

record, including Dr. Treyve’s December 3, 2020 report. The DMA noted that appellant’s earliest 

audiogram was dated June 27, 1984, which demonstrated normal hearing, and that serial 

audiograms over the years have demonstrated a progressive sensorineural hearing loss in the four 

to eight kilohertz (KHz) frequencies. He noted that the latest audiogram of record, dated 

December 3, 2020, demonstrated normal hearing through 3 KHz, after which the left ear sharply 

dropped to a 4 KHz acoustic notch at 50 dB with record to 40 dB at 8KHz. The DMA opined that 

these patterns were suggestive of sensorineural hearing loss due at least in part to noise-induced 

work-related acoustic trauma. He noted that the date of maximum medical improvement was 

December 3, 2020. The DMA concurred with Dr. Treyve’s calculation of zero percent binaural 

hearing impairment, as a result of right-sided monaural loss of zero percent and left-sided monaural 

loss of zero percent. He recommended authorization for hearing aids.

In a supplemental report dated January 22, 2021, Dr. Treyve explained that it was not 

reasonable that appellant’s hearing loss at the present time represented occupational noise-induced 

hearing loss, given that he had normal hearing according to industrial audiometry two years before 

retirement and had spent the last seven years working as a benchmark spec ialist without noise 

exposure. He noted that recreational noise exposure in the form of gunfire was well recognized to 

cause noise-induced hearing loss, and right-sided long arm shooting classically resulted in more 

hearing loss in the left ear, because his left ear would be closest to the source of the noise at the 

muzzle. Dr. Treyve stated that firing more than 1,000 rounds in a lifetime retained a statistically 

significant association with hearing loss for each thousand rounds, approximately equivalent to 

three years of occupational noise exposure. He opined that appellant’s high-frequency hearing 

loss was more probably than not related to the effects of presbycusis and recreational noise 

exposure. 

2 A.M.A., Guides(6th ed. 2009).
4

OWCP forwarded Dr. Treyve’s reports to Dr. Israel, serving as the DMA, on 

January 25, 2021. In a report dated February 1, 2021, Dr. Israel noted that, in his prior report, he 

had stated that appellant’s hearing loss patterns were suggestive of sensorineural hearing loss due 

at least in part to noise-induced work-related acoustic trauma. He explained that it was impossible 

to determine the percentage of hearing loss that could be attributed to presbycusis, work -related 

acoustic trauma, and “hobby or life activity” noise. Dr. Israel stated that it had to be assumed that 

at least some of the noise exposure and subsequent hearing loss was due to work -related noise 

hazards. He further noted that it had been established that hearing loss related to hazardous noise 

exposure may continue after exposure stops. Dr. Israel noted that Dr. Trevye had mentioned that 

there was a normal audiogram in 2006, two years prior to retirement. He stated that it was possible 

there was work-related noise exposure in his last two years of work, causing the beginnings of 

hearing loss, but it was unknown as there were no confirming audiograms. Dr. Israel stated that it 

was also possible that the hearing loss exclusively occurred after retirement, but that it was 

unknown for certain. He noted his belief that claimants should be given the benefit of the doubt 

and stated that if there was any chance that the hearing loss seen at present had been contributed 

to by his prior work, then it should be considered. Dr. Israel noted that, if there was a retirement 

audiogram from 2008, then he could perhaps agree with Dr. Treyve’s discussion. Lastly, he stated 

that, while he may disagree with Dr. Treyve as to the nuances of how and when a hearing loss 

might or might not happen, he concurred that appellant’s percentage of binaural hearing 

impairment was zero percent.

By decision dated February 8, 2021, OWCP denied appellant’s claim, finding that it was 

untimely filed. It found that the date of his injury was January 1, 1993, as indicated on his claim 

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

January 3, 2008. OWCP further stated that appellant’s “date of injury [was] January 1, 1993 

represents reasonably aware.”

On March 1, 2021 appellant requested a review of the written record by OWCP’s Branch 

of Hearings and Review. In an attached letter, he argued that his claim should not have been 

denied as untimely, because his supervisor and the dispensary where his hearing was tested yearly 

both were aware of his hearing loss at the time it occurred. Appellant asserted that the timely filing

element had been met with the evidence from the hearing conservation program that he was 

enrolled in throughout his employment at the employing establishment. 

By decision dated June 9, 2021, OWCP’s Branch of Hearings and Review affirmed the 

February 8, 2021 decision.

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 

3

Supra note 1.
5

time limitation period of FECA,4that 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.5 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.6

The issue is whether a claim was timely filed is a preliminary jurisdictional issue that 

precedes any determination on the merits of the claim.7 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.8

In an occupational disease claim, 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 federal employment. Such awareness is competent to 

start the limitation period even though the employee does not know the precise nature or the 

impairment or whether the ultimate result of such affect would be temporary or permanent.9 Where 

the employee continues in the same employment after he or she reasonably should have been aware 

that he or she has a condition, which has been adversely affected by factors of federal employment, 

the time limitation begins to run on the date of the last exposure to the implicated factors.10 Section 

8122(b) of FECA provides that the time for filing in latent disability cases 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.11 It is the 

employee’s burden of proof to establish that a claim is timely filed.12

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 

4 W.P., Docket No. 21-0107 (issued May 4, 2021); M.O., Docket No. 19-1398 (issued August 13, 2020); S.B., 

Docket No. 17-1779 (issued February 7, 2018); Joe D. Cameron, 41 ECAB 153 (1989).

5

J.R., Docket No. 20-0496 (issued August13, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 

312 (1988).

6 B.M., Docket No. 19-1341 (issued August 12, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); 

DeloresC. Ellyett, 41 ECAB 992 (1990).

7 M.B., Docket No. 20-0066 (issued July 2, 2020); Charles W. Bishop, 6 ECAB 571 (1954).

8

5 U.S.C. § 8122(a); F.F., Docket No. 19-1594 (issued March 12, 2020); W.L., 59 ECAB 362 (2008).

9

See A.M., Docket No. 19-1345 (issued January 28, 2020); LarryE. Young, 52 ECAB 264 (2001).

10 S.O., Docket No. 19-0917 (issued December 19, 2019); Larry E. Young, id.

11 5 U.S.C. § 8122(b).

12 D.D., Docket No. 19-0548 (issued December 16, 2019); GeraldA. Preston, 57 ECAB 270 (2005).
6

provided within 30 days pursuant to section 8119.13 The knowledge must be such as to put the 

immediate superior reasonably on notice of an on-the-job injury or death.14

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 supervisor on notice of an on-the-job injury.15 A hearing loss identified on such a 

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

work injury.16

ANALYSIS

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 January 1, 1993. 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 January 3, 2008. Therefore, the latest date appellant could have been 

exposed to any hazardous noise at work was the date of his retirement, and the three-year time 

limitation began to run on January 3, 2008. 

Appellant’s claim would still be regarded as timely filed under 5 U.S.C. § 8122; however,

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 hea ring 

conservation program can also establish constructive notice of injury.17 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.18

Herein, the results of a reference audiogram from June 27, 1984 at the frequency levels of 

500, 1,000, 2,000, and 3,000 Hz demonstrated losses for the right ear of 5, 0, 0, and 0 dBs and for 

the left ear of 5, 0, 0, and 0 dBs. Subsequently, hearing conservation data indicated audiometric 

findings obtained on July 10, 2006 at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz of 

13 5 U.S.C. § § 8122(a)(1); 8122(a)(2); see also Larry E. Young, supra note 9.

14 S.O., supra note 10; B.H., Docket No. 15-0970 (issued August 17, 2015); Willis E. Bailey, 49 ECAB 511 (1998).

15 J.C., Docket No. 18-1178 (issued February 11, 2019); L.B., Docket No. 12-1548 (issued January 10, 2013); 

James W. Beavers, 57 ECAB 254 (2005).

16 J.C., id.; L.E., Docket No. 14-1551 (issued October 28, 2014).

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

April 8, 2016).

18 See M.N., Docket No. 17-0931 (issued August15, 2017); W.P., Docket No. 15-0597 (issued January 27, 2016).
7

losses for the right ear of 0, 0, 5, and 5 dBs and for the left ear of 5, 0, 5, and 10 dBs. Testing on 

July 25, 2006 at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz demonstrated losses for 

the right ear of 5, 0, 5, and 5 dBs and for the left ear of 0, -5, 0, and 10 dBs. 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 

January 3, 2008, the date of his retirement.19 Therefore, based on the audiometric test results from 

the employing establishment’s hearing conservation program, 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 

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

CONCLUSION

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

19 See supra notes 15, 16, 18, and 19.

20 See J.C., supra note 15; M.N., supranote 18.
8

ORDER

IT IS HEREBY ORDERED THAT the June 9, 2021 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: April 4, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board