United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.V., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVY 

PUBLIC WORKS CENTER, Oakland, CA, 

Employer 

__________________________________________ 

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Docket No. 14-1449 

Issued: October 14, 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 13, 2014 appellant filed a timely appeal from the February 12, 2014 nonmerit 

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

reconsideration. The Board lacks jurisdiction to review the merits of the case pursuant to the 

Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 as the last 

merit decision of March 4, 2013 was issued more than 180 days from the filing of the appeal. 

ISSUE 

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

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

On appeal appellant contends that he is entitled to a greater schedule award due to his 

incurable tinnitus condition. He further contends that the employing establishment was negligent 

in administering and enforcing its preventive measures. Appellant also contends that he 

 1

 5 U.S.C. § 8101 et seq.
2

sustained an emotional condition as a consequence of his tinnitus. He requests authorization for 

hearing aids. 

FACTUAL HISTORY 

On April 17, 2011 appellant, then a 66-year-old equipment operator/shop material 

controller, filed an occupational disease claim alleging that he first became aware of constant 

ringing in both ears between 1975 and 1976. He alleged that he first realized that his condition 

was caused by his employment on November 20, 2010. Appellant retired from the employing 

establishment on March 31, 1997. In a March 23, 2011 statement, he contended that his hearing 

loss and tinnitus were caused by exposure to loud noise from equipment at work. 

By letter dated May 19, 2011, the employing establishment stated that appellant’s last 

exposure to the implicated employment factor was on March 31, 1997. Its practice was always 

to provide personal protective equipment to any employee to eliminate exposure to possible 

hazards in the workplace. The employing establishment stated that employees were provided 

training on the use of this equipment. 

Medical records, including employing establishment audiograms from February 10, 1978 

to March 4, 1997, showed hearing loss in both of appellant’s ears. 

In a September 27, 2011 decision, OWCP denied appellant’s claim, finding that it was 

not timely filed under FECA. By letter dated January 24, 2012, he requested reconsideration. 

By letter dated February 10, 2012, OWCP referred appellant, together with a statement of 

accepted facts and the medical record, to Dr. Barry C. Baron, a Board-certified otolaryngologist, 

for a second opinion regarding his hearing loss. In a March 15, 2012 medical report, Dr. Baron 

listed examination findings and diagnosed bilateral high frequency sensorineural hearing loss 

and mild-to-moderate tinnitus. He advised that a significant part of appellant’s hearing loss was 

related to noise exposure at the employing establishment. A small portion was related to his 

military service. Dr. Baron stated that his hearing loss was permanent and not reversible. He 

stated that appellant reached maximum medical improvement in 1997. Dr. Baron recommended 

that he avoid any loud noise and wear ear protection if he were exposed to such noise. An 

audiogram performed on his behalf on March 15, 2012 reflected testing at the frequency levels of 

500, 1,000, 2,000 and 3,000 cycles per second (cps) and revealed the following decibel losses: 

15, 15, 40 and 65 for the right ear and 10, 15, 55 and 65 for the left ear, respectively. Based on 

these results and in accordance with the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Baron calculated that 

appellant had a 13.12 percent monaural hearing impairment for the right ear and a 16.87 percent 

monaural hearing impairment for the left ear. He calculated a binaural hearing impairment of 

13.75 percent. Dr. Baron recommended hearing aids. 

In an April 24, 2012 decision, OWCP found that appellant’s occupational disease claim 

was timely filed and vacated the September 27, 2011 decision. The record established that the 

employing establishment had actual knowledge of appellant’s hearing loss on February 22, 1993. 

The record also established that appellant was a part of the employing establishment’s hearing 
3

conservation program. OWCP accepted that he sustained sensorineural bilateral hearing loss and 

tinnitus based on Dr. Baron’s opinion. 

On October 10, 2012 appellant filed a claim for a schedule award. 

On December 12, 2012 an OWCP medical adviser reviewed the medical record and 

Dr. Baron’s March 15, 2012 findings. Utilizing the sixth edition of the A.M.A., Guides, he 

calculated that appellant had 13.1 percent monaural hearing loss in the right ear and 16.9 percent 

monaural hearing loss in the left ear, resulting in 13.8 percent binaural hearing loss. The medical 

adviser added 2 percent impairment for mild-to-moderate tinnitus as described by Dr. Baron, 

resulting in a 15.8 percent binaural hearing impairment. He opined that appellant reached 

maximum medical improvement on March 15, 2012, the date of Dr. Baron’s examination. The 

medical adviser recommended hearing aids for both ears. 

In a March 4, 2013 decision, OWCP granted appellant a schedule award for 16 percent 

binaural hearing loss. It found that OWCP medical adviser properly applied the A.M.A., Guides

to Dr. Baron’s findings. The award ran for 32 weeks from March 15 to October 24, 2012. 

By letter dated November 5, 2013, appellant requested reconsideration. He contended 

that the compensation period for his schedule award incorrectly reflected that he was only 

employed for 10 months and that he filed claims for his condition during this period. Appellant 

stated that he was struggling to cope with tinnitus and hearing loss 10 years prior to his 

retirement, which prompted him to retire early with a penalty. He also contended that the 

opinions of the two appointed audiologists in regards to tinnitus were marginal and subjective 

and there was no inquiry to determine the extent of his debilitation and depression. Appellant 

stated that, since his tinnitus was getting progressively worse, a mental health professional 

should provide a diagnosis and an opinion on the extent of severity and debilitation of his 

condition. He asserted that the employing establishment’s physician ignored the progression and 

deterioration of his tinnitus and hearing loss for 25 years and the employing establishment failed 

to take hearing loss prevention measures. Appellant stated that documents regarding these 

matters were considered irrelevant during the review process which made it possible to dismiss 

the accountability and responsibility of the negligent administration and supervision at the 

workplace. Lastly, he disagreed with the amount of his schedule award. Appellant alleged that a 

coworker with the same hearing loss received significantly higher compensation and 

programmable hearing aids to lessen the severity of the tinnitus condition. 

In a February 12, 2014 decision, OWCP denied appellant’s request for reconsideration 

without a merit review. 

LEGAL PRECEDENT 

To require OWCP to reopen a case for merit review under section 8128 of FECA,2

OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or 

interpreted a specific point of law; (2) advance a relevant legal argument not previously 

 2

 5 U.S.C. §§ 8101-8193. 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

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

considered by OWCP.3 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.4

 Section 10.608(b) of the implementing regulations state that any 

application for review that does not meet at least one of the requirements listed in 20 C.F.R. 

§ 10.606(b)(3) will be denied by OWCP without review of the merits of the claim.5

ANALYSIS 

On November 5, 2013 appellant disagreed with OWCP’s March 4, 2013 decision, 

granting him a schedule award for a 16 percent binaural hearing impairment. He requested 

reconsideration. 

The Board finds that appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law. Moreover, he did not advance a relevant legal argument not 

previously considered. In a November 5, 2013 request for reconsideration, appellant contended 

that the compensation period for his schedule award incorrectly reflected that he was only 

employed for 10 months and that he filed claims for his condition during this period. He stated 

that he was struggling to cope with tinnitus and hearing loss 10 years prior to his retirement, 

which prompted him to retire early with a penalty. However, OWCP properly began the award 

on the date of maximum medical improvement as found by OWCP’s medical adviser. The 

period covered by a schedule award commences on the date that the employee reaches maximum 

medical improvement from the residuals of the employment injury.6

 In this case, the period of 

award ran for 32 weeks, the amount of time statutorily mandated under FECA for a 16 percent 

binaural hearing impairment.7

Appellant contended that the opinions of the two appointed audiologists in regards to 

tinnitus were marginal and subjective and there was no inquiry to determine the extent of his 

debilitation and depression. His simple assertion disagreeing with the audiologists’ test results 

does not warrant merit review of the claim. The Board notes that the underlying issue in this 

case is whether appellant has greater than 16 percent binaural hearing impairment for which he 

received a schedule award. That is a medical issue which must be addressed with relevant 

medical evidence.8

 Appellant failed to submit pertinent new and relevant medical evidence in 

support of his claim.9 Thus, the Board finds that appellant was not entitled to a merit review of 

his claim. 

 3

 20 C.F.R. § 10.606(b)(3). 

4 Id. at § 10.607(a). 

5 Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). 

6 Albert Valverde, 36 ECAB 233, 237 (1984). 

7

 5 U.S.C. § 8107(c)(13)(B). 

8 See Bobbie F. Cowart, 55 ECAB 746 (2004). 

9 M.H., Docket No. 13-2051 (issued February 21, 2014). 
5

Appellant asserted that he developed depression as a consequence of his employmentrelated tinnitus. The Board notes, however, that the issue of whether appellant sustained a 

consequential emotional condition is medical in nature and can only be established by probative 

medical evidence.10 This issue is not presently before the Board as there is no final adverse 

OWCP decision.11 Thus, he was not entitled to a review of the merits of his claim. 

Appellant further asserted that the employing establishment’s physician ignored the 

progression and deterioration of his tinnitus and hearing loss for 25 years and the employing 

establishment failed to take hearing loss prevention measures. He stated that documents 

regarding these matters were considered irrelevant during the review process which made it 

possible to dismiss the accountability and responsibility of the negligent administration and 

supervision at the workplace. Appellant’s contentions, which focus on alleged errors by the 

employing establishment, are not relevant to the underlying medical issue in this case, namely, 

whether he has greater impairment than 16 percent binaural hearing impairment granted by 

OWCP. As stated, that is a medical issue which must be addressed by relevant medical 

evidence.12 The Board finds, therefore, that appellant’s contentions are insufficient to reopen his 

claim for a merit review. 

Appellant also contended that a coworker with the same hearing loss received 

significantly higher compensation and programmable hearing aids to lessen the severity of this 

condition. However, appellant has not submitted any pertinent new and relevant medical 

evidence to support greater impairment. In addition, he did not submit any evidence indicating 

that the claim was not properly developed. The Board finds that appellant’s contention is 

insufficient to reopen his claim for a merit review.13

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted 

a specific point of law, advance a relevant legal argument not previously considered by OWCP 

or constitute relevant and pertinent new evidence not previously considered by OWCP. Pursuant 

to 20 C.F.R. § 10.608, OWCP properly denied merit review. 

Further on appeal, appellant requested authorization for hearing aids. The Board notes 

that OWCP has not rendered a decision related to this request. The only issue before the Board 

is whether OWCP properly denied appellant’s request for reconsideration of the merits pursuant 

to 5 U.S.C. § 8128(a). The Board’s review of the case is limited to the evidence of record which 

was before OWCP at the time of its final decision.14 Similarly, the Board cannot review the 

 10 Supra note 8. 

11 See 20 C.F.R. §§ 501.2(c) and 501.3(a). 

12 Supra note 8. 

13 The Board notes that OWCP referenced appellant’s need for hearing aids but noted, in its February 24, 2012 

decision, that a request for authorization of such hearing aids should be submitted to OWCP. 

14 See 20 C.F.R. § 501.2(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 

ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 
6

evidence submitted by appellant on appeal as the Board has no jurisdiction to review this 

evidence for the first time on appeal.15

CONCLUSION 

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

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

ORDER 

IT IS HEREBY ORDERED THAT the February 12, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 14, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 15 Id.