United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.C., Appellant 

and 

TENNESSEE VALLEY AUTHORITY, FOSSIL 

OPERATIONS, Cumberland City, TN, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-71 

Issued: March 27, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 3, 2013 appellant filed a timely appeal from an April 11, 2013 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for 

further merit review. As more than 180 days elapsed from the last merit decision of March 8, 

2013 to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1

 (FECA) 

and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for further merit review 

of her claim pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On September 12, 2012 appellant, then a 67-year-old retired fossil electrical technician, 

filed an occupational disease claim alleging that her hearing loss condition was caused or 

 1

 5 U.S.C. § 8101 et seq. 
2

aggravated by her employment. She became was aware of her condition on February 20, 2004 

and that it was caused or aggravated by her employment on March 15, 2005. Appellant was last 

exposed to conditions alleged to have caused her disease or illness on May 19, 2011.2 No 

evidence was submitted with the claim. 

In letters dated September 24 and November 19, 2012, OWCP advised appellant of the 

deficiencies in her claim and requested additional factual and medical evidence. Appellant was 

accorded 30 days in which to provide the requested information. The additional evidence 

submitted included doctor reports diagnosing hearing loss. 

OWCP referred appellant, along with a statement of accepted facts and the medical 

record, to Dr. Jeffrey Paffrath, a Board-certified otolaryngologist, for a second opinion 

examination. In a February 5, 2013 report, Dr. Paffrath reviewed the medical record, the 

statement of accepted facts and presented examination findings. He diagnosed asymmetric high 

frequency sensorineural hearing loss and bilateral sensorineural hearing loss. Dr. Paffrath opined 

that appellant has a component of hearing loss beyond presbycusis and more likely related to a 

medical condition rather than just noise exposure. He stated the degree of asymmetry indicated 

the need for a magnetic resonance imaging (MRI) scan of the brain and internal auditory canals 

with and without gadolinium to rule out acoustic neuroma. Dr. Paffrath opined that the presence 

of an acoustic neuroma was very unlikely but the amount of asymmetry was otherwise 

unexplained. While her work environment had the potential to produce hearing loss, he noted 

that appellant wore hearing protection and he was not able to distinguish noise-induced hearing 

loss in the hearing testing. Dr. Paffrath stated that the majority of her hearing loss and the 

pattern of her hearing loss were likely due to medical conditions and presbycusis which were not 

related to the work environment. He recommended a hearing aid evaluation and placement of 

bilateral hearing aids. In a March 5, 2013 addendum, Dr. Paffrath indicated that there was no 

evidence of acoustic neuroma on the MRI scan although gadolinium IV contrast was not 

administered. He opined that appellant’s hearing test pattern of loss was not consistent with a 

noise-induced pattern and thus the majority of her hearing loss was not likely due to noise 

exposure from federal employment. 

By decision dated March 8, 2013, OWCP denied the hearing loss claim on the basis that 

the medical evidence of record failed to support that appellant’s hearing loss was caused by 

factors of her employment. 

On March 27, 2013 OWCP received appellant’s request for reconsideration. In a 

March 25, 2013 letter, appellant expressed her disagreement with Dr. Paffrath’s examination and 

having to undergo an MRI scan. She expressed her desire to be sent to a different doctor for 

hearing loss testing. 

By decision dated April 11, 2013, OWCP denied appellant’s request for reconsideration 

without reviewing the merits of the case. 

 2

 Under claim number xxxxxx086, OWCP denied appellant’s hearing loss claim in an August 12, 2004 decision 

because it was determined that her hearing loss was due to presbycusis. 
3

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3

OWCP’s regulations provide that the evidence or argument submitted by a claimant must: 

(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a 

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and 

pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant also must file his or her 

application for review within one year of the date of that decision.5

 When a claimant fails to 

meet one of the above standards, OWCP will deny the application for reconsideration without 

reopening the case for review on the merits.6

ANALYSIS 

Appellant did not file a timely appeal of OWCP’s most recent merit decision of 

March 8, 2013. For that reason, the Board has no authority to review that decision or the merits 

of her hearing loss claim. The only decision the Board may review is OWCP’s April 11, 2013 

nonmerit decision denying appellant’s March 25, 2013 reconsideration request. 

OWCP denied appellant’s request for further reconsideration on the merits of her claim 

on the grounds that she failed to submit any evidence or argument to warrant a merit review. 

The record reflects that she submitted no evidence or argument to OWCP subsequent to the 

March 8, 2013 merit decision on her claim. Appellant’s statements contained in her March 25, 

2013 letter are her opinion on the matter and do not advance any relevant legal argument not 

previously considered by OWCP. Specifically, she had not provided any new medical evidence 

to support that her hearing loss was caused by her exposure to excessive noise in her federal 

employment. 

Although timely filed, appellant’s March 25, 2013 application for reconsideration did not 

set forth any argument or contain evidence that either: (1) showed that OWCP erroneously 

applied or interpreted a specific point of law; (2) advanced a relevant legal argument not 

previously considered by OWCP; or (3) constituted relevant and pertinent new evidence not 

previously considered by OWCP.7

 Because she failed to meet any of these standards, OWCP 

 3

 Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a). 

4

 20 C.F.R. § 10.606(b)(2). 

5 Id. at § 10.607(a). 

6 Id. at § 10.608(b). 

7 Id. at § 10.606. 
4

properly denied the application for reconsideration without reopening the case for a review on 

the merits.8 

On appeal, appellant argues the merits of her case. She additionally requests to be sent to 

another doctor for hearing loss testing. As noted, the Board does not have jurisdiction over the 

merits of the case. It also has no authority to refer appellant for further medical examination. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for merit review under 5 

U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the April 11, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 27, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 8 Id. at § 10.608; M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one 

of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits).