spent in such a noisy environment." The record shows that in 1965 the shipyard dispensary placed him in "Class X (Wear protective earplugs in high noise areas) Permanently" and that he was required to wear them. The Office of Workers' Compensation Programs, formerly the Office of Federal Employees' Compensation, rejected appellant's claim by compensation order dated February 21, 1974. It found that the date of the last possible exposure to noise at work was November 18, 1970; that at that time he was aware he had a hearing loss and of its possible relationship to his employment; that the time limitations began to run on that date; that written notice of injury and claim for compensation were not filed within the period of one year; that the failure to so file was not due to circumstances beyond appellant's control; and that he had not shown sufficient cause or reason in explanation of such failure. However, on the same date the Office advised him by letter that the evidence established that his hearing loss was causally related to his employment and that, although not entitled to compensation, he was entitled to medical benefits "as indicated and proper." In a case involving a claim for an occupational hearing loss the time limitations of the Act begin to run when the injured employee first becomes aware or reasonably should have been aware of a possible relationship between his hearing loss and his employment.1 In situations where the exposure to injurious noise continues after such knowledge, the time for filing a claim begins to run on the date of the employee's last exposure to such noise. The Board finds that appellant was aware or reasonably should have been aware of a possible relationship between his hearing loss and his employment prior to the last date on which he could possibly have been exposed to injurious on-the-job noise levels. Such date was November 18, 1970, the last date he worked at the shipyard. Appellant's statements support this finding. He stated that his working environment exposed him 8 hours a day, 5 days a week, to noisy machine tools; that he felt that his hearing loss was due to the extreme noise and his spending so long a time in such a noisy environment; and that he had noticed the effect on his hearing six years before his retirement, when he was placed on "permanent classification" for his hearing by the shipyard medical officers. The pertinent section of the Act, codified at 5 U.S.C. Section 8122(c), provides that compliance with the Act's one-year time limitation for filing a claim may be waived if the claimant shows 1 Marion H. Salerni, 24 ECAB 300; Union Small, 25 ECAB 275. 2 George O. Bishop, Jr., 24 ECAB 60; Cleater J. Meadows, 24 ECAB 126; William S. Meyers, 24 ECAB 194; Union Small, supra. sufficient cause or reason in explanation of his failure timely to file a claim. The Board finds that the evidence in the case record is not sufficient to justify appellant's failure to meet the one-year time requirement. The test of whether a claimant has shown sufficient cause or reason is whether he prosecuted his claim with the degree of diligence an ordinarily prudent person would use in protecting his rights. Since appellant knew for several years before his retirement that his noisy working environment was adversely affecting his hearing, we find that he did not act prudently in protecting his rights when he waited nearly two years after his last day at work before filing a claim. Although appellant has forfeited any right to disability compensation by his failure to file timely written notice of injury and claim, he would be entitled to the medical benefits of the Act or any causally related condition if it were established that his employing establishment had actual knowledge of such injury within 48 hours. The Board notes, and the Office states in its memorandum in justification of the compensation order, that it found that appellant has sustained an employment-related hearing loss and that there was timely notice to his supervisors. Therefore, he is entitled to appropriate medical benefits for the hearing loss. The compensation order of the Office of Workers' Compensation Programs, dated February 21, 1974, is hereby affirmed. 'Cleater J. Meadows, supra; Union Small, supra. In the Matter of JOSEPH ERSOL BERCHTOLD and DEPARTMENT OF THE AIR FORCE, HILL AIR FORCE BASE, Utah Procedure on appeal to or review by Board, remand for develop ment Case was not in posture for decision where appellant's injury involved not only his leg but also the abdominal and pelvic areas; subsequently he developed back and kidney conditions and medical examiners raised the possibility that these conditions might be related to the injury. Office should secure complete medical records and an opinion from appropriate medical specialists on whether these conditions were related to the employment injury and resulted in significant permanent impairments. Schedule awards, retroactivity, 1966 amendments-wage-earning capacity, loss of, schedule award, effect of In a case remanded for Office to determine whether appellant's back, kidney and hernia conditions were related to his work injury to Docket No. 74-144; Submitted on the Record; Before FLOYD G. ANSLEY, E. GERALD LAMBOLEY, FRED E. STRINE The issue is whether a schedule award for a 25 percent permanent loss of use of appellant's left leg was proper compensation with respect to his September 13, 1965 employment injury. On September 13, 1965, appellant, a 60 year old parts expediter, was run over by a tractor. Dr. Wendell Noall of the employing establishment dispensary reported that one wheel of the tractor had progressed between appellant's legs squeezing the tissue on the medial aspect of both legs and thighs up onto his pelvis. The doctor stated that this resulted in "a squeeze shear type of soft tissue injury to the anterior and medial aspect of both legs and thighs and some abrasions with a considerable amount of concealed bleeding in the tissues." Dr. Noall stated that, in addition to injury to the left leg, appellant had "possible internal injuries to his pelvis and abdominal contents." Appellant was placed under the care of Dr. D. L. Bunderson, who had him hospitalized until September 19, 1965. The doctor reported that the diagnoses were laceration of the medial collateral ligaments of the left knee and "multiple contusions and crush injuries, legs, pelvis, and abdomen." On November 8, 1965, appellant returned to work at light duty. On September 15, 1967, Dr. Bunderson reported that appellant had reached maximum improvement from the residuals of the injury. He stated that there was one inch atrophy of the leg, lateral numbness over the thigh, pain in the knee, and considerable weakness in the leg. He estimated that appellant had a 50 percent functional loss of use of the leg. Because of his leg symptoms, the doctor reported that appellant should be in a light duty status indefinitely. A medical adviser of the Office of Workers' Compensation Programs, formerly the Office of Federal Employees' Compensation, estimated upon the basis of Dr. Bunderson's findings that appellant had a 25 percent permanent loss of use of his left leg. On March 22, 1968 the Office issued a schedule award for a 25 percent permanent loss of use of the leg, covering the period from August 23, 1966 to January 8, 1968. Thereafter, appellant continued to complain of left leg symptoms, and he was examined on several occasions by Dr. Bunderson. The doctor reported that he continued to have discomfort, weakness and atrophy. From December 16 to December 22, 1970, appellant was hospitalized under the care of Dr. David P. Jahsman, a Board-certified internist. In a brief note dated December 22, 1970 the doctor stated that appellant had a lumbosacral strain "probably related" to the injury of September 13, 1965. On September 27, 1973, Dr. Jahsman reported that appellant had been disabled since September 21 and that when he returned to work he should not lift more than 35 pounds or do prolonged lifting, bending or straining. The diagnosis was angina pectoris. Appellant returned to work on October 9, 1973 on light duty. However, he stopped working on October 16, 1973 and retired on disability effective January 8, 1974. The dispensary records show that in August 1972 appellant had surgery for a large cyst on the right kidney. Subsequently, he developed an incisional hernia for which surgery was performed on November 1, 1973. In November 1973 appellant informed the Office that his left leg condition was becoming worse. He further contended that his kidney and back condition, as well as his leg condition, might be related to the September 1965 injury. The Office requested Dr. Charles M. Swindler, a Board-certified orthopedic surgeon, to make an evaluation of appellant's left leg condition. In a report dated February 11, 1974, Dr. Swindler stated that when he saw appellant on February 8 he complained of weakness in both legs and pain in both knees. The examination revealed significant quadriceps atrophy of the left knee joint. However, there was a full range of motion in all joints of the left leg, the neurological findings were normal, and there was no significant weakness of "a major isolated muscle group." The doctor reported that the examination of the low back revealed a 50 percent loss of flexion and an essentially total loss of the right and left bend. Dr. Swindler was of the opinion that appellant's back condition was "secondary to osteoarthritis incident to age and not related to the alleged injury." X-rays of the low back and of the pelvis did not reveal any evidence of fracture or trauma. An X-ray of the left knee revealed considerable osteoarthritis and "a resid ual of partial avulsion of the origin of the medial collateral ligament which is now clinically and radiographically healed." Dr. Swindler estimated that appellant had "a 10% loss of function of the skeletal system and this factor of impairment of function would be at the level of the left knee joint." With respect to appellant's right kidney condition Dr. Swindler commented, "Whether or not the cyst of the right kidney represents a partial traumatic rupture which went unrecognized following his industrial injury is a matter which I can not deny or confirm at this time. It is a possibility that his right kidney problem did arise from his crush injury but I have no way of establishing that relationship at this time." A medical adviser of the Office expressed the opinion that the report from Dr. Swindler did not indicate that there was an increase in the percentage of the impairment of appellant's left leg. On March 29, 1974, the Office issued a compensation order finding that there had not been an increase in the 25 percent permanent loss of use of appellant's left leg for which he had received a schedule award, that the residuals of the September 13, 1965 injury were confined to the left leg, that he was not totally disabled for work as a result of the residuals of the injury, that inasmuch as the injury had occurred prior to July 4, 1966 he was not entitled to compensation for loss of wage-earning capacity after expiration of the period of the schedule award, and that he had received all of the benefits provided by law for his injury. The Board finds that the case is not in posture for decision. The September 1965 employment injury involved not only appellant's left leg but also the abdominal and pelvic areas. Subsequently, he developed back and kidney conditions, and medical examiners have raised the possibility that these conditions might be related to the injury. The Office should secure the complete medical records with respect to appellant's treatment, hospitalization and surgery subsequent to the injury for his back and kidney conditions and for the consequental incisional hernia. The augmented case record with a statement of accepted facts should be submitted to appropriate medical specialists for rationalized opinions as to whether these conditions were related to the employment injury, and if so, whether they resulted in significant permanent impairments. If they did result in such impairments, then since the injury occurred prior to the July 4, 1966 Amendments1 to the Federal Employees' Compensation Act, the Office should set aside 180 Stat. 252. |