United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.B., Appellant 

and 

DEPARTMENT OF THE ARMY, ARMY 

DEPOT, Anniston, AL, Employer 

__________________________________________ 

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Docket No. 15-0683 

Issued: April 20, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

 On February 10, 2015 appellant filed a timely appeal from December 12, 2014 merit 

decisions 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.2

 Appellant, then a 61-year-old machinist supervisor, filed an occupational disease claim 

(Form CA-2) on September 10, 2008 alleging bilateral hearing loss. OWCP accepted his claim 

for bilateral sensorineural hearing loss on February 7, 2012. 

 This case has been before the Board on prior appeal. By decision dated June 20, 2013,3

the Board found that at the time of OWCP’s February 7, 2012 decision, the report from 

Dr. Pappas, the second opinion physician, constituted the weight of the evidence and established 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted additional evidence to the record following OWCP’s December 12, 

2014 decisions. The Board’s jurisdiction is limited to a review of the evidence which was before OWCP at the time 

of its final review. 20 C.F.R. § 501(c). 

3

 Docket No. 13-316 (issued June 20, 2013). 
2

that appellant did not have a ratable hearing loss. The Board also found that OWCP should have 

requested that the district medical adviser address whether hearing aids should be authorized. 

Furthermore, the Board found that OWCP had abused its discretion, in its November 1, 2012 

decision, by refusing to reopen the case for further consideration of the merits regarding the issue 

of ratability of appellant’s hearing loss, including review of the September 28, 2011 report of 

Dr. J. Scott Robertson, a Board-certified otolaryngologist, and the October 9, 2012 letter from 

audiologist Jennifer Smith, regarding the September 28, 2011 audiogram. 

 OWCP thereafter issued two decisions dated December 12, 2014. The first decision, was 

labeled as an acceptance, and again accepted sensorineural bilateral hearing loss and thereafter 

found that the medical evidence of record established that appellant would benefit from hearing 

aids. The second decision dated December 12, 2014 was identified as a merit review. This 

decision noted the Board’s prior remand of the case, but only made findings regarding the issue 

of appellant’s entitlement to hearing aids, not the issue of ratability of appellant’s hearing loss. 

OWCP mentioned in passing that appellant’s hearing loss had previously been determined to be 

nonratable. OWCP disregarded the Board’s instructions in its June 20, 2013 decision to conduct 

a merit review of the evidence regarding the ratability of appellant’s hearing loss, with 

consideration of Dr. Robertson’s September 28, 2011 report. As the issue of ratability of 

appellant’s hearing loss was before OWCP at the time of its December 12, 2014 decision, 

appellant was entitled to a proper decision with findings of fact and a statement of reasons.4

 The Board finds OWCP erred by failing to conduct a merit review regarding the ratability 

of appellant’s hearing loss, pursuant to the Board’s June 20, 2013 instructions. 

 4

 20 C.F.R. § 10.126. 
3

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

Workers’ Compensation Programs be set aside and the case be remanded to OWCP for further 

proceedings consistent with this order. 

Issued: April 20, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board