United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

TENNESSEE VALLEY AUTHORITY, 

SHAWNEE STEAM PLANT, Chattanooga, TN, 

Employer 

__________________________________________ 

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Docket No. 14-1980 

Issued: April 17, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 15, 2014 appellant filed a timely appeal from an August 22, 2014 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As the last merit decision 

was issued in this case on February 23, 2009, pursuant to the Federal Employees’ Compensation 

Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the 

merits of this case. 

ISSUE 

The issue is whether OWCP properly refused to reopen appellant’s case for further 

review of the merits on the grounds that his request for reconsideration was not timely filed and 

did not establish clear evidence of error. 

 1

 5 U.S.C. § 8101 et seq.
2 

FACTUAL HISTORY 

On December 10, 2008 appellant, then a 60-year-old assistant unit operator, filed an 

occupational disease claim alleging that he suffered from hearing loss as a result of exposure to 

excessive noise while working in the basement of a steam plant. He first became aware of his 

condition and realized it resulted from his employment on April 1, 2006. Appellant indicated 

that the date of his last exposure was March 16, 2006. 

In a letter dated December 29, 2008, OWCP advised appellant that the evidence 

submitted was insufficient to establish that he sustained employment-related hearing loss. It 

requested that he respond to specific questions, and provide copies of all medical examinations 

pertaining to hearing problems. OWCP also sent a letter to the employing establishment on 

December 29, 2008. It requested that the employing establishment provide information in its 

possession relevant to appellant’s claim, including copies of all medical examinations in its 

possession pertaining to hearing loss, as well as a statement from a knowledgeable supervisor 

regarding details of his exposure to hazardous noise. 

Appellant did not submit any medical evidence in support of his hearing loss claim. 

OWCP also did not receive any of the requested information from the employing establishment. 

In a decision dated February 23, 2009, OWCP denied appellant’s claim finding that he 

had failed to submit any evidence to establish hearing loss as a result of factors of his 

employment. 

Following the February 23, 2009 denial decision, on March 2, 2009 OWCP received 

numerous documents from the employing establishment, including various employment 

audiograms dated July 5, 1990 until December 21, 2005. It also provided appellant’s July 1990 

application for employment. A summary of the audiograms indicated that appellant’s hearing 

loss had progressed from July 5, 1990 until December 21, 2005. In July 1990, his left ear 

hearing loss at the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second was recorded as 

0, 5, 10, and 5 decibels; while his right ear loss was recorded as 5, 0, 5, and 10 decibels. 

Audiometric results were provided for the years 1990 through 2005. The December 21, 2005 

audiometric results indicated that appellant’s hearing loss had progressed. His left ear hearing 

loss was recorded as 15, 35, 45, and 40 decibels; while his right ear hearing loss was recorded as 

10, 35, 55, and 50 decibels. 

In a January 8, 2009 statement, Bobby Barrow, an operations manager at the employing 

establishment, stated that appellant worked for the employing establishment from July 7, 1990 to 

March 16, 2006 as a custodian, Student Generating Plant Operator Training, and assistant unit 

operator. He noted that appellant worked around boiler feed pumps and coal pulverizers for four 

to six hours a day, five days a week and that the noise level readings for these jobs were 71 to 90 

decibels. Mr. Barrow reported that hearing protection had been provided by the employing 

establishment since 1973 and that appellant wore hearing protection from the time he began to 

work for the employing establishment. He believed that based on this information there was 

reasonable doubt that appellant had current hearing loss as a result of his federal employment. 
3 

In a February 26, 2009 statement, Whitney R. Mauldin, an audiologist, reviewed 

appellant’s employment history and audiograms. She stated that upon review of his work history 

and audiometric record there was no evidence to establish fact of injury. Ms. Mauldin related 

that appellant’s July 5, 1990 baseline hearing examination for the employing establishment 

demonstrated high frequency hearing loss at the right ear. She opined that this asymmetry had 

persisted since his hire and was suggestive of a possible medical condition contributing to the 

decline of his overall auditory function that was inconsistent with occupational exposure. 

In a handwritten letter dated June 3, 2014, appellant requested a copy of the denial letter 

concerning his hearing loss claim and stated that he intended to appeal it. 

In an appeal request form dated August 12, 2014 and received by OWCP on August 18, 

2014, appellant requested reconsideration. In an attached handwritten statement, he reported that 

he was informed that anyone hired after 1990 at the employing establishment would not be 

eligible for hearing loss compensation due to the fact that earplugs had been provided. Appellant 

was later told by another employee that the Labor Board determined that earplugs were not 

adequate enough protection. He explained that had he known about the Labor Board decision he 

would have pursued his claim further. Appellant contended that he worked in the noisiest place 

at the employing establishment. 

In an August 5, 2014 report, Whitney Cope, an audiologist, examined appellant for 

reduced hearing sensitivity for the past 8 to 10 years. Appellant described an extensive history 

of excessive noise exposure while working for the employing establishment from 1990 through 

2006. Upon visual examination of appellant’s ear, Ms. Cope observed patent ear canals with 

tympanic membranes being clearly visualized bilaterally. She reported that audiometric test 

results revealed minimal falling to moderately severe sensorineural hearing loss bilaterally. 

Ms. Cope diagnosed binaural minimal falling to moderately severe sensorineural hearing loss of 

hearing sensitivity and abnormal auditory perception and word recognition. She stated that the 

hearing loss was most likely multifactorial in nature with contributing factors, including, but not 

limited to, extensive exposure to high level noise and presbycusis. Ms. Cope provided a copy of 

the audiology test. 

By decision dated August 22, 2014, OWCP denied appellant’s request for reconsideration 

as his request was untimely filed and that he failed to present clear evidence of error on the part 

of OWCP. It determined that the most recent merit decision on record was the February 23, 

2009 decision denying his occupational disease claim. Because appellant’s request for 

reconsideration was not received until August 18, 2014, his claim was untimely filed. OWCP 

further determined that the evidence submitted after the last merit decision was insufficient to 

establish clear evidence of error. 

LEGAL PRECEDENT 

To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, 

OWCP regulations provide that an application for reconsideration must be received by OWCP 

within one year of the date of OWCP’s decision for which review is sought.2

 The Board has 

 2

 20 C.F.R. § 10.607. 
4 

found that the imposition of the one-year time limitation does not constitute an abuse of the 

discretionary authority granted OWCP under section 8128(a) of FECA.3

 The one-year period 

begins on the date of the original decision. However, a right to reconsideration within one year 

accompanies any subsequent merit decision on the issues. This includes any hearing or review 

of the written record decision, any denial of modification following reconsideration, any merit 

decision by the Board, and any merit decision following action by the Board.4

OWCP, however, may not deny an application for review solely on the grounds that the 

application was not timely filed. When an application for review is not timely filed, it must 

nonetheless undertake a limited review of the evidence previously of record to determine 

whether the new evidence demonstrates clear evidence of error.5 In this regard, OWCP will limit 

its focus to a review of how the newly submitted evidence bears on the prior evidence of record.6 

To establish clear evidence of error, a claimant must submit evidence relevant to the issue 

decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest on 

its face that OWCP committed an error.7

 Evidence that does not raise a substantial question 

concerning the correctness of OWCP’s decision is insufficient to establish clear evidence of 

error.8 It is not enough merely to show that the evidence could be construed so as to produce a 

contrary conclusion.9 The evidence submitted must not only be of sufficient probative value to 

create a conflicting medical opinion or establish a clear procedural error, but must be of 

sufficient probative value to shift the weight of the evidence in favor of the claimant and raise a 

substantial question as to the correctness of OWCP’s decision.10

OWCP procedures note that the term clear evidence of error is intended to represent a 

difficult standard. The claimant must present evidence which on its face shows that OWCP 

made an error (for example, proof that a schedule award was miscalculated). Evidence such as a 

detailed, well-rationalized medical report which, if submitted before the denial was issued would 

have created a conflict in medical opinion requiring further development, is not clear evidence of 

error.

11 The Board makes an independent determination of whether a claimant has submitted 

 3

 5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989). 

4 D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013). 

5 See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990). 

6 Nelson T. Thompson, 43 ECAB 919 (1992). 

7

 20 C.F.R. at supra note 5; Fidel E. Perez, 48 ECAB 663 (1997). 

8 Jimmy L. Day, 48 ECAB 652 (1997). 

9 Id. 

10 Annie L. Billingsley, 50 ECAB 210 (1998). 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.5(a) (October 2011). 
5 

clear evidence of error on the part of OWCP such that it improperly denied merit review in the 

face of such evidence.12

ANALYSIS 

The only decision before the Board is the August 22, 2014 nonmerit decision in which 

OWCP denied appellant’s request for reconsideration on the grounds that his request was 

untimely filed and failed to establish clear evidence of error. In a decision dated February 23, 

2009, OWCP denied appellant’s hearing loss claim. In an appeal request form received by 

OWCP on August 18, 2014, appellant requested reconsideration. More than one year elapsed 

from the most recent OWCP merit decision dated February 23, 2009, to his request for 

reconsideration received on August 18, 2014. Thus, appellant’s request for reconsideration was 

untimely. As the request for review was not timely filed, the Board shall undertake a limited 

review of the evidence previously of record to determine whether the new evidence demonstrates 

clear evidence of error. 

Pursuant to its obligation to develop appellant’s claim, on December 29, 2008, OWCP 

requested information from the employing establishment, including comments from 

knowledgeable supervisors regarding work-related noise exposure and the extent and degree of 

the stated exposure, as well as copies of all reports of medical examinations and audiograms 

performed during appellant’s employment. When the employing establishment failed to respond 

to its request for additional information, it denied appellant’s claim on the grounds that he failed 

to submit sufficient evidence to establish his claim. The Board finds that OWCP’s failure to 

consider the evidence from the employing establishment of annual audiometric examinations as 

well as the results of these tests constituted error.13 

Subsequent to the denial of appellant’s claim on February 23, 2009, the employing 

establishment submitted numerous documents to OWCP on March 2, 2009 which generally 

supported his hearing loss claim, including audiograms covering the period of his employment, 

physician’s reports, and memoranda from the employing establishment verifying his exposure to 

hazardous noise in the workplace. This evidence was not in the record on February 23, 2009, but 

was clearly available prior to its submission by the employing establishment. Appellant also 

submitted evidence in support of his claim. The Board has held that a program of annual 

audiometric examinations conducted by an employing establishment in conjunction with an 

employee testing program was 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.14

An employing establishment reluctance or refusal to submit requested evidence relating 

to an employee’s hearing loss claim in a timely manner should not be an impediment to a 

successful prosecution of the claim.15 In the present case, the type of information that had been 

 12 Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993). 

13 See R.H., Docket No. 12-102 (issued May 17, 2012); see also Melvin James, 55 ECAB 406 (2004). 

14 See James A. Sheppard, 55 ECAB 515 (2004). 

15 See Jerome J. Kubin, Docket No. 03-1830 (issued October 1, 2003). 
6 

sought, namely employing establishment audiograms, is normally within the custody of the 

employing establishment and not readily available to appellant. OWCP procedures provide that 

if an employing establishment, in connection with a recognized environmental hazard, has an 

employing test program and a test shows the employee to have positive findings, this should be 

accepted as constituting actual knowledge. For example, an employing establishment where 

employees may be exposed to hazardous noise levels may give annual hearing tests for exposed 

employees. A hearing loss identified on such a test would constitute knowledge on the 

employing establishment of a possible work injury.16 Accordingly, appellant should not be 

penalized for the employing establishment’s failure to submit such information in a timely 

manner.17 Had the audiograms and other evidence supporting his noise-induced hearing loss 

been received prior to the February 23, 2009 decision, proper procedure would have compelled 

OWCP to further develop the case by obtaining a second opinion report from a medical 

specialist.18 

The Board finds that the evidence submitted by the employing establishment following 

the merit denial of appellant’s claim shifted the weight of the evidence in this case in favor of 

him, as it offers clear support of his claim and raises a substantial question concerning the 

correctness of the decision.19 The case must therefore be remanded for OWCP to evaluate all of 

the evidence submitted by the employing establishment and appellant, to be followed by such 

further development as appropriate.20 

CONCLUSION 

The Board finds that OWCP improperly refused to reopen appellant’s claim for 

reconsideration of the merits on the grounds that it was untimely filed and failed to show clear 

evidence of error. 

 16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3(a)(3)(c)(March 1993). 

17 See Id. 

18 R.H., supra note 13. 

19 See W.D., Docket No. 07-2002 (issued January 14, 2008). 

20 Supra note 16. 
7 

ORDER 

IT IS HEREBY ORDERED THAT the August 22, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and this case is remanded to OWCP for further 

proceedings consistent with this opinion, which includes a full review of the evidence under the 

proper, timely standards of a merit review. 

Issued: April 17, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board