United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cincinnati, OH, Employer 

__________________________________________ 

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Docket No. 16-0410 

Issued: April 4, 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 

COLLEEN DUFFY KIKO, Judge 

On January 5, 2016 appellant filed a timely appeal from a December 22, 2015 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed 

as No. 16-0410. 

This case has previously been before the Board. By decision dated March 16, 2011, the 

Board remanded the case for further development following an October 15, 2009 OWCP merit 

decision which denied appellant’s claim, finding that she failed to establish that she sustained 

any occupational noise exposure.1

 The Board found that OWCP, in its October 15, 2009 

decision, had initially requested that the employing establishment provide evidence regarding 

appellant’s occupational noise duration or levels of exposure to hazardous noise during her 

federal employment. The employing establishment failed to respond. The Board remanded the 

case for OWCP to further request that the employing establishment submit evidence concerning 

any occupational noise surveys and address the length and period of appellant’s noise exposure. 

The findings and facts as set forth in the prior decision are hereby incorporated by reference. 

On remand, by letter dated June 4, 2015, OWCP requested that the employing 

establishment provide any evidence concerning occupational noise surveys and address the 

length and period of appellant’s exposure. 

 1

 Docket No. 10-940 (issued March 16, 2011). 
2

By letter dated June 24, 2015, the employing establishment responded that the request 

had been forwarded to the manager of the Cincinnati Processing Distribution Center, but that no 

response had been received. 

By letter dated October 19, 2015, OWCP again requested that the employing 

establishment provide any evidence concerning occupational noise surveys and address the 

length and period of appellant’s exposure. 

In a November 12, 2015 response, the employing establishment reported that there was 

no evidence that a noise survey had been ordered at appellant’s duty station. 

By decision dated December 22, 2015, OWCP denied appellant’s claim, finding that the 

evidence of record failed to establish occupational noise exposure as alleged. It also noted that 

appellant had failed to respond to its earlier development letter requesting information regarding 

her employment history and nonoccupational exposure to noise. 

Having reviewed the case record submitted by OWCP, the Board finds that this case is 

not in posture for a decision. In its December 22, 2015 denial, OWCP found that appellant had 

failed to establish fact of injury by demonstrating that a specific event, incident, or exposure 

occurred at the time, place, and in the manner alleged because she had failed to provide a 

statement describing her occupational noise exposure. However, the record reflects that 

appellant had responded to OWCP’s May 28, 2009 development letter in a narrative statement 

dated June 8, 2009. Following the Board’s March 16, 2011 decision remanding the October 15, 

2009 OWCP decision, a June 1, 2011 memorandum to the file indicates that a June 8, 2009 

statement from appellant for this occupational claim had been misfiled in another claimant’s file 

in error. The statement was found and moved to the correct file in this claim, No. xxxxxx614. 

In this June 8, 2009 narrative statement, appellant reported that she had been hired on 

November 3, 1984 and worked in multiple jobs during her employment with the employing 

establishment. She stated that in buildings A and B she was exposed to loud noise from 

machines, which included small parcel and bundle sorters, flat sorter machines, automated flats 

sorting machines, OCR machines, automated induction systems, industrial powered equipment, 

tow motor operators, forklifts, pallet lifts, jitneys, rolling stock, all-purpose containers, gurneys, 

hampers, house trucks, and flat tubs. Appellant stated that her exposure to employment-related 

noise occurred on a daily basis. She had filed no prior claims for hearing or ear problems and 

engaged in no hobbies which exposed her to loud noise. Appellant explained that her service 

with the postal service spanned over 25 years where she was exposed to hazardous noise while 

working in both buildings and continued to be exposed to this noise causing her problems with 

her hearing loss. She further noted that she attempted to obtain copies of prior assignments from 

the employing establishment, but was informed that they could not provide her that information 

as it dated too far back. 

As the Board’s decisions are final as to the subject matter appealed, it is crucial that all 

evidence relevant to the subject matter of the claim which was properly submitted to OWCP 

prior to the time of issuance of its final decision be reviewed and addressed by OWCP.2

 It 

 2 See Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, 41 ECAB 548 (1990) (OWCP did not 

consider new evidence received four days prior to the date of its decision); see Linda Johnson, 45 ECAB 439 (1994) 

(applying Couch where OWCP did not consider a medical report received on the date of its decision). 
3

makes no difference that the claims examiner may not have been directly in possession of the 

evidence. Indeed, Board precedent envisions evidence received by OWCP, but not yet 

associated with the case record when the final decision is issued, must be provided merit review.3 

In its final decision, OWCP made no reference to any evidence submitted by appellant and found 

that she failed to establish that the occupational noise exposure occurred as alleged noting that 

the employing establishment was unable to provide further evidence. It does not appear that 

OWCP considered the June 8, 2009 narrative statement which was previously misfiled in a 

different claim.4

 As such, the Board cannot review such evidence for the first time on appeal.5

The Board finds that this case is not in posture for a decision. Consequently, the case 

will be remanded for OWCP to fully consider appellant’s evidence which was properly 

submitted prior to the December 22, 2015 decision. Following this and such other development 

as deemed necessary, OWCP shall issue an appropriate merit decision. 

IT IS HEREBY ORDERED THAT the December 22, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further development 

consistent with this order. 

Issued: April 4, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 3 Id.

4

 The Board notes that the June 8, 2009 narrative statement consisted of three pages each of which contained the 

claim No. xxxxxx614 clearly handwritten by appellant on the top of the document for proper filing of her claim. 

5

 20 C.F.R. § 501.2(c).