United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.H., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, TINKER 

AIR FORCE BASE, OK, Employer 

__________________________________________ 

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Docket No. 16-1098 

Issued: October 24, 2016 

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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 28, 2016 appellant filed a timely appeal from a January 25, 2016 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed between the last merit decision of June 29, 2015 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 to review the merits of this case. 

ISSUE 

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

merits pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

This case has previously been before the Board on appeal. On June 15, 2010 appellant, 

then a 63-year-old electronic worker, filed an occupational disease claim (Form CA-2) alleging 

bilateral hearing loss as a result of noise exposure from her federal employment. 

By decision dated September 5, 2012,2

 the Board found that OWCP had failed to 

properly develop the claim as it had not secured adequate workplace evidence regarding 

appellant’s duration and levels of exposure to hazardous noise from the employing 

establishment. The Board further found that Dr. Gregg S. Govett, a Board-certified 

otolaryngologist serving as the second opinion physician, was not provided with an accurate and 

complete statement of accepted facts (SOAF) as the factual evidence was incomplete as to 

specific levels and duration of noise exposure during appellant’s federal employment. The case 

was remanded. Following development of the case record on remand, by decision dated 

January 9, 2014, OWCP denied appellant’s hearing loss claim as the medical evidence failed to 

support that her hearing loss was causally related to workplace noise exposure. 

On July 2, 2014 appellant again filed an appeal before the Board. By decision dated 

December 10, 2014,3 the Board set aside the January 9, 2014 decision finding that OWCP had 

again failed to properly develop the claim. The Board noted that Dr. Govett’s reports did not 

adequately address the issue of causation and remanded the case for appellant to be referred to an 

appropriate second opinion physician. The Board also remanded for OWCP to request that the 

employing establishment submit additional information pertaining to appellant’s noise level 

exposure. The facts and circumstances from the prior decisions and orders are incorporated 

herein by reference. 

On remand, OWCP referred appellant to Dr. Richard B. Dawson, a Board-certified 

otolaryngologist, for a second opinion evaluation on April 8, 2015. It prepared a SOAF 

addressing appellant’s federal work duties and the types of employment-related noise exposure. 

An audiogram was completed on April 8, 2015 which revealed the following decibel (dB) losses 

at 500, 1,000, 2,000, and 3,000 hertz (Hz): 15, 15, 30, and 20 for the right ear and 15, 15, 20, 

and 25 for the left ear. Dr. Dawson diagnosed bilateral high-tone sensorineural hearing loss 

which he opined was due to noise exposure encountered in appellant’s federal civilian 

employment and in excess of what would normally be predicated on the basis of presbycusis. He 

reported that in accordance with the sixth edition of the American Medical Association, Guides 

to the Evaluation of Permanent Impairment4

 (A.M.A., Guides), calculation of monaural and 

binaural impairment revealed no reportable hearing loss. Hearing aids were not authorized. 

On June 10, 2015 OWCP referred the case file along with Dr. Dawson’s report, to 

Dr. Michael M. Katz, a Board-certified orthopedic surgeon and an OWCP district medical 

 2

 Docket No.12-733 (issued September 5, 2012). 

3

 Docket No. 14-1570 (issued December 10, 2014). 

4

 A.M.A., Guides (6th ed. 2009). 
3

adviser to determine the extent of appellant’s permanent partial impairment and date of 

maximum medical improvement (MMI). 

In a June 11, 2015 report, Dr. Katz reviewed Dr. Dawson’s report and agreed that 

appellant’s bilateral sensorineural hearing loss was due to occupational noise exposure. He 

applied the April 8, 2015 audiometric data to OWCP’s standard for evaluating hearing loss and 

determined that appellant had zero percent monaural hearing loss in the left ear and zero percent 

monaural hearing loss in the right ear. Dr. Katz concluded that, in accordance with the sixth 

edition of the A.M.A., Guides,

5

 appellant had no ratable hearing loss. He determined that MMI 

had been reached on April 8, 2015 and that hearing aids should not be authorized. 

By decision dated June 15, 2015, OWCP accepted appellant’s claim for bilateral 

sensorineural hearing loss. It further found that hearing aids were not authorized.6

On June 22, 2011 appellant filed a claim for a schedule award (Form CA-7). 

By decision dated June 29, 2015, OWCP denied appellant’s schedule award claim finding 

that her hearing loss was not sufficiently severe to be considered ratable. 

By letter dated October 14, 2015, appellant requested reconsideration of the June 29, 

2015 OWCP decision. She argued that she was exposed to severe, ongoing noise for 41 years as 

a result of her federal employment duties. Appellant noted that she was submitting two 

audiometry tests in support of her conditions. No evidence was submitted with the 

reconsideration request and no other evidence was received. 

By decision dated January 25, 2016, OWCP denied appellant’s request for 

reconsideration finding that she neither raised substantive legal questions nor included pertinent 

and relevant new evidence. 

LEGAL PRECEDENT 

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

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.7

 Section 10.608(b) of OWCP regulations provide 

that when an application for reconsideration does not meet at least one of the three requirements 

enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration 

without reopening the case for a review on the merits.8

 5 Id.

6

 In a separate June 15, 2015 decision, OWCP vacated the April 15 and September 14, 2011 decisions finding that 

the claim was accepted for bilateral sensorineural hearing loss. 

7 D.K., 59 ECAB 141 (2007). 

8 K.H., 59 ECAB 495 (2008). 
4

ANALYSIS 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

consideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a). 

The issue presented on appeal is whether appellant met any of the requirements of 20 

C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. 

In her October 14, 2015 application for reconsideration, appellant did not establish that OWCP 

erroneously applied or interpreted a specific point of law. She did not advance a new and 

relevant legal argument. Appellant argued that her hearing loss was caused by work-related 

noise exposure. However, the issue is not whether appellant developed work-related hearing loss 

as OWCP had already accepted the claim for bilateral sensorineural hearing loss. Rather, the 

issue is whether appellant has established a ratable loss of hearing such that she is entitled to a 

schedule award. That is a medical issue which must be addressed by relevant medical evidence.9 

Appellant alleged that she submitted two audiometry tests in support of her claim. 

However, her reconsideration request was not accompanied by additional medical evidence and 

no other evidence was received. A claimant may obtain a merit review of an OWCP decision by 

submitting pertinent new and relevant evidence. In this case, appellant failed to submit any 

relevant and pertinent new evidence addressing permanent impairment to a scheduled member 

such that she would be entitled to a schedule award for hearing loss.10 

On appeal appellant argues that she developed work-related hearing loss which has 

drastically changed her lifestyle. As noted, the denial of her schedule award claim does not 

mean that she has no hearing loss. Rather, it means that the extent or degree of loss is not 

sufficient to show a practical impairment in hearing according to the A.M.A., Guides. The 

A.M.A., Guides set a threshold for impairment and appellant’s occupational hearing loss did not 

cross that threshold.11 

Appellant may request a schedule award or increased schedule award based on evidence 

of a new exposure or medical evidence showing progression of an employment-related condition 

resulting in permanent impairment or increased impairment. 

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. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

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

10 See E.M., Docket No. 16-0471 (issued May 16, 2016). 

11 See R.R., Docket No. 12-1840 (issued February 14, 2013). See also A.M.A., Guides 250. 
5

CONCLUSION 

The Board finds that OWCP properly refused to reopen appellant’s case for further 

review of the merits pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the January 25, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 24, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board