United States Department of Labor

Employees’ Compensation Appeals Board

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B.S., Appellant

and

TENNESSEE VALLEY AUTHORITY, 

BROWNS FERRY NUCLEAR PLANT, 

Athens, AL, Employer

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Docket No. 23-0582

Issued: September 14, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 14, 2023 appellant filed a timely appeal from a February 27, 2023merit 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 has met his burden of proof to establish that he filed a timely 

claim for compensation pursuant to 5 U.S.C. § 8122(a).

FACTUAL HISTORY

On October 6, 2022 appellant, then a 63-year-old retired equipment operator, filed an 

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

1

5 U.S.C. § 8101 et seq.
2

his federal employment, specifically exposure to high levels of noise while performing electrical 

work at the employing establishment. He noted that he first became aware of his condition and its

relationship to his federal employment on October 1, 1999. On the reverse side of the claim form,

the employing establishment noted that appellant did not report his condition untilOctober 6, 2022

and that his last date of exposure was February 6, 2014. 

An unsigned audiometric hearing assessment dated January 10, 2022, was submitted by 

appellant indicating his level of hearing loss. 

Appellant submitted a narrative statement on October 6, 2022 relating his employment 

history and exposure to noisy conditions for long periods of time. He indicated that hearing 

protection was not required in many areas until 1996 and hearing loss was considered “part of the 

job” and culture of the workforce. Appellant further indicated that he realized in the mid-1990s 

that he could no longer hear high-frequency sounds. By 1999, he noted having trouble 

understanding voices in conversation or on a television. Appellant retired in February 2014 and 

purchased hearing aids on July 9, 2015, which he indicated now needed replacement. 

In a development letter dated October 18, 2022, OWCP indicated that the evidence 

provided was insufficient to establish that appellant had filed a timely claim for compensation. It

also noted that there was no diagnosis of any condition, nor a physician’s opinion as to how the 

alleged injury resulted in a medical condition and provided a questionnaire to him to substantiate 

the factual elements of his claim. OWCP afforded appellant 30 days to respond. In a separate 

development letter of even date, it requested that the employing establishment provide additional 

information regarding his claim, including comments from a knowledgeable supervisor regarding 

appellant’s allegations. OWCPalso requested that the employing establishment submit all medical 

examinations pertaining to his hearing loss. 

In a report dated October 18, 2022, Dr. Richard Gresham, a Board-certified audiologist,

related that appellant suffered bilateral hearing loss that began in the 1990s. He indicated difficulty 

hearing and understanding average conversational speech. Dr. Gresham further related a long 

work history of excessive noise exposure. He indicated that audiometry results revealed a sloping, 

moderate-to-profound, high frequency, and sensorineural hearing loss in each ear. Dr. Gresham 

opined that appellant’s hearing loss was consistent with his work history of excessive noise 

exposure. 

In a letter dated December 1, 2022, the employing establishment controverted appellant’s 

claim, contending that the claim was not filed timely as he filed his claim beyond the three-year 

requirement for timely filing. It related that it had a mandatory Hearing Conservation Program 

(HCP) since March 1983. The employing establishment also detailed its efforts regarding 

surveillance, monitoring, and protection, but noted it was unable to locate hearing test records for 

appellant. 

The employing establishment submitted a series of e-mails regarding attempts to locate 

appellant’s medical records. The last e-mail dated October 25, 2022 related that “MedGate” and 

“ECM” had been checked, but that it was possible a hard copy of his records could be found in the 

Chattanooga file room, which would be checked later in the week. 
3

OWCP received a report summarizing a sample of routine noise levels that appellant would 

have been exposed to in his work environment. 

By decision dated February 27, 2023, OWCP denied appellant’s occupational disease 

claim, finding that it was untimely filed. It determined that the evidence of record did not support 

that he filed his claim within three years of the date of injury or date of last exposure or that his 

supervisor had actual knowledge of the claimed condition within 30 days of the date of injury. 

LEGAL PRECEDENT

An employee seeking benefits under FECA2 has the burden of proof to establish the 

essential elements of his or her claim, including 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 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.3 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.4

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

precedes any determination on the merits of the claim.5 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. 6

In a case of occupational disease, 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 of the 

impairment or whether the ultimate result of such affect would be temporary or permanent.7 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 his or her federal 

2

Id.

3

J.M., Docket No. 17-0284 (issued February 7, 2018);R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

4 B.H., Docket No. 20-0777 (issued October 21, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);

L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

5

S.H., Docket No. 22-0610 (issued October 21, 2022); A.S.,Docket No. 18-1094 (issued February 7, 2019);

C.D., Docket No. 58 ECAB 146 (2006).

6

5 U.S.C. § 8122(a).

7 R.H., Docket No. 21-1364 (issued April 5, 2022); see A.M., Docket No. 19-1345 (issued January 28, 2020);

Larry E. Young, 52 ECAB 264 (2001).
4

employment, the time limitation begins to run on the date of the last exposure to the implicated 

factors.8 

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 supervisor 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 8119.9 The knowledge must be such as to put the 

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

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

Appellant submitted an occupational disease claim on October 6, 2022 alleging that he 

developed hearing loss due to factors of his federal employment. He further indicated that he first 

became aware of the condition and of the relationship to his federal employment on 

October 1, 1999. The evidence of record establishes that appellant was last exposed to the 

allegedly causative factors of employment on February 6, 2014 the date he retired from federal 

employment. Since he filed his occupational disease claim on October 6, 2022 his claim was filed 

outside the three-year time limitation period set forth in section 8122(a) of FECA.

13

Appellant’s claim, however, would still be regarded as timely under FECA if his immediate 

supervisor had actual knowledge of appellant’s injury and any possible relation to his federal 

employment within 30 days, or if written notice of injury was given to his immediate supervisor 

within 30 days of injury.

14

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6 (March 1993);R.H., id.; see also 

S.O., Docket No. 19-0917 (issued December 9, 2019).

9

5 U.S.C. §§ 8122(a)(1); 8122(a)(2); J.S., Docket No. 22-0347 (issued September 16, 2022); see also Larry E. 

Young, 52 ECAB 264 (2001).

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

11 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). 

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

13 R.H., supra note 7; R.T., Docket No. 18-1590 (issued February 15, 2019).

14 Supra note 11.
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The Board finds that OWCP must further develop the factual aspect of this record. The 

record reflects that the employing establishment had an HCP in place since 1983 and appellant has 

indicated that he participated in the program. In a development letter dated October 18, 2022, 

OWCP requested that the employing establishment submit his records pertaining to his hearing 

loss claim. In an e-mail dated October 25, 2022, an employing establishment official indicated 

that a further search would be conducted for appellant’s records, however, no further information 

was received. Appellant’s audiological and other medicalrecordsfromthe HCPwere not provided 

by the employing establishment. Accordingly, OWCP must develop this factual aspect of the case 

before a full and fair determination can be made regarding the timeliness of the claim. 15

It is well established that proceedings under FECA are not adversarial in nature, and while 

appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in 

the development of the evidence, particularly when such evidence is of the character normally 

obtained from the employing establishment or other government source. 16 OWCP has an 

obligation to see that justice is done.17

On remand, OWCP shall obtain all records from the employing establishment’s HCP

relevant to appellant’s claim.

18

 Following this and other such further development deemed 

necessary, it shall issue a de novo decision.

CONCLUSION

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

15 See S.N., Docket No. 21-0258 (issued October 19, 2021); see also J.V., Docket No. 17-0973 (issued 

July 19, 2018).

16 R.A., Docket No. 17-1030 (issued April16, 2018); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Michael 

Gallo, 29 ECAB 159, 161 (1978).

17 See A.J., Docket No. 18-0905 (issued December 10, 2018); WilliamJ. Cantrell, 34 ECAB 1233, 1237 (1983);

Gertrude E. Evans, 26 ECAB 195 (1974).

18 Supra note 8 at Chapters 2.800.4, 2.800.7, 2.800.8, and 2.800.10 (June 2011).
6

ORDER

IT IS HEREBY ORDERED THAT the February 27, 2023 decision of the Office of 

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

consistent with this decision of the Board.

Issued: September 14, 2023

Washington, DC

Alec J. Koromilas, 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