United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.H., Appellant

and

DEPARTMENT OF THE NAVY,

NAVAL BASE KITSAP, Keyport, WA, Employer

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Docket No. 16-0800

Issued: December 15, 2017

Appearances: Case Submitted on the Record

John E. Goodwin, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 10, 2016 appellant, through counsel, filed a timely appeal from a 

November 17, 2015 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).2 As more than 180 days elapsed from OWCP’s last merit decision, dated April 23, 

2015, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 Appellant also filed a timely request for oral argument in this case pursuant to 20 C.F.R. § 501.5(b). After 

exercising its discretion, the Board, by order dated April 18, 2017, denied the request, as appellant’s arguments on 

appeal could be adequately addressed in a decision based on a review of the case record. Order Denying Request for 

Oral Argument, Docket No. 16-0800 (issued April 18, 2017). 

3

5 U.S.C. § 8101 et seq.
2

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the 

claim.4

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of 

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

FACTUAL HISTORY

On February 11, 2013 appellant, then a 54-year-old firefighter, filed an occupational 

disease claim (Form CA-2) alleging bilateral hearing loss and tinnitus as a result of his federal 

employment. He became aware of his condition and that it was caused or aggravated by his 

federal employment on December 14, 2012. OWCP accepted appellant’s claim for bilateral 

hearing loss. Appellant has a prior claim, number xxxxx133, accepted for bilateral hearing loss, 

which is the master file of the current claim.

On June 13, 2013 appellant was advised of the employing establishment’s inability to 

accommodate him in his firefighter position. On July 23, 2013 the employing establishment 

offered appellant the position of security clerk (office automation) as a permanent reasonable 

accommodation. The position was located at the passport and identification office and appellant 

informally and briefly worked this position. Appellant refused to formally accept the job offer 

and also refused any other attempts by the employing establishment to find suitable work for him 

at other facilities. He officially declined the job offer on August 14, 2013.

In a letter dated September 10, 2013, OWCP advised appellant that the offered position 

of security clerk was found to be suitable to his capabilities and was currently available. It found 

the position suitable and in accordance with appellant’s medical limitations for his date-of-injury 

job as a firefighter because it did not involve any significant noise exposure or the need for 

normal hearing, with or without hearing aids.5 Appellant was provided 30 days to accept the 

position or provide written reasons for his refusal. OWCP informed him that if he failed to 

accept the offered position and failed to demonstrate that the refusal of the offer of suitable work 

was justified, his compensation would be terminated pursuant to 5 U.S.C. § 8106(c)(2).

When appellant did not return to work within 30 days of the September 10, 2013 letter, 

OWCP advised appellant in a November 19, 2013 letter that the offered position remained 

suitable and available to him and that his reasons for refusing to accept the offered position were 

 

4 The Board notes that appellant submitted additional evidence after OWCP rendered its November 17, 2015 

decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final 

decision. Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. See 20 

C.F.R. § 501.2(c)(1).

5

In a December 18, 2012 report, Ashley B. Gordon evaluated appellant, then a civilian firefighter, for fitness for 

duty given his hearing loss in both ears. She opined that appellant was not audiometrically fit for duty as a fireman. 

Ms. Gordon reviewed the National Fire Protection Association Standards on Medical Program for Fire Departments 

and opined that appellant would have increased difficulty hearing while performing critical job duties in the 

presence of background noise with and without the use of protective equipment.
3

not valid. Appellant was afforded 15 additional days to accept and report to that position or his 

entitlement to wage-loss compensation and schedule award benefits would be terminated. He 

did not do so within the time allotted.

By decision dated January 8, 2014, OWCP terminated appellant’s compensation and 

entitlement to claim a schedule award effective January 8, 2014 as he refused an offer of suitable 

work under section 8106(c)(2). It noted that he had not accepted the position within the allotted 

15-day time period. OWCP determined that the job was suitable as the position may be 

performed within the prescribed restrictions. It found that his failure to report to the offered 

position was not justified as he had not submitted evidence that the position was beyond his 

ability or required him to be exposed to excessive noise.

On January 10 and 14, 2014 both counsel and appellant requested a hearing before an 

OWCP hearing representative, which was held June 27, 2014. Several declarations from 

coworkers were submitted along with appellant’s response and an argument from counsel.

In a September 11, 2014 decision, the hearing representative affirmed the January 8, 2014 

OWCP decision. She found that appellant had refused the job offer of security clerk which was 

suitable and available. The hearing representative further found that appellant had not provided 

sufficient evidence to establish that he had performed the outside tasks he described while he 

informally worked at the passport and identification office or that such tasks would expose him 

to hazardous noise in the offered position.

On November 18, 2014 appellant requested reconsideration. Additional evidence 

regarding noise exposure was submitted. By decision dated April 23, 2015, OWCP denied 

modification of the September 11, 2014 decision. It noted that the confirmed incidents of noise 

exposure did not show that the offered security clerk job was unsuitable as such incidents did not 

happen on a repetitive basis. Appellant also provided insufficient evidence that he was exposed 

to a significant hazardous noise associated with the security clerk position.

On September 28, 2015 appellant requested reconsideration. In a July 28, 2015 letter, 

Amy M. Becken, Au. D., CCC-A, an audiologist, documented appellant’s work history and that 

he had worn hearing devices in both ears since 2001 due to the severity of his hearing loss and 

communication issues. It was her professional opinion that appellant not be exposed to any 

levels of hazardous noise at the workplace. This letter was countersigned by Dr. Michael 

McManus, a Board-certified occupational medicine specialist, on September 23, 2015.

In a nonmerit decision dated November 17, 2015, OWCP denied appellant’s 

reconsideration request. The decision noted that the evidence did not support that OWCP 

erroneously applied or interpreted a point of law or advance a relevant legal argument not 

previously considered. OWCP further found that the new evidence was not relevant. It 

explained that the statement which Dr. McManus countersigned, which noted that the work 

environment was contraindicated due to the dangers of continued exposure, was without merit as 

he had not provided empirical data or environmental studies of the building/site in question to 

substantiate a sustained noise decibel level in excess of 85. OWCP noted that no studies had 

been submitted as to how many semi-trucks passed through the gate, at what intervals, the 

duration of noise exposure from those vehicles, and most importantly, the level of noise in the 
4

passport and identification office. It also cited 1981 Occupational Safety and Health 

Administration requirements to protect workers to a time weighted average noise of 85 decibels 

or higher over an eight-hour work shift.

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.6 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.7 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is 

sought.8 A timely application for reconsideration, including all supporting documents, must set 

forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.9 When a timely application for reconsideration does not meet at least one 

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.10

ANALYSIS

The only decision before the Board in this appeal is the nonmerit decision of OWCP 

dated November 17, 2015, which denied appellant’s application for review.

The merit issue in this case is whether OWCP properly terminated appellant’s wage-loss 

compensation benefits effective January 8, 2014 as he refused an offer of suitable work. By 

decision dated January 8, 2014, OWCP terminated appellant’s compensation and entitlement to a 

schedule award effective January 8, 2014 as he refused an offer of suitable work under section 

8106(c)(2). The refusal of an offer of suitable work was affirmed by an OWCP hearing 

representative on September 11, 2014 and OWCP denied modification in a merit decision on 

April 23, 2015. Appellant requested reconsideration on September 28, 2015 and submitted a 

July 28, 2015 letter from an audiologist, which Dr. McManus countersigned on 

September 23, 2015. 

 

6 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment 

of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.607.

8

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal 

Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

9

Id. at § 10.606(b)(3).

10 Id. at § 10.608(a), (b).
5

The Board finds that, as appellant did not assert that OWCP erroneously applied or 

interpreted a point of law or advance a relevant legal argument not previously considered by

OWCP, he was not entitled to a review of the merits of his claim based on the first and second 

above-noted requirements under section 10.606(b)(3).11

With respect to the third above-noted requirement under section 10.606(b)(3), appellant 

submitted a July 28, 2015 letter from an audiologist, Amy Becken, which Dr. McManus 

countersigned on September 23, 2015. In the July 28, 2015 letter, the audiologist documented 

appellant’s work and medical history and for the first time set forth specific restriction of 

avoiding hazardous noise. She opined that appellant not be exposed to any levels of hazardous 

noise at the workplace. 

On appeal counsel argued a merit review should have been conducted as relevant new 

medical evidence was submitted. The Board agrees. The Board finds that Dr. McManus’ report, 

which had not previously been reviewed by OWCP, constitutes relevant and pertinent new 

evidence in regard to whether OWCP properly terminated appellant’s benefits for refusing 

suitable work. This evidence goes to the question of whether the security clerk position exposed 

appellant to any hazardous noise. It is not necessary that the evidence be sufficient to establish 

the claim, only that it is new, relevant, and pertinent to the issue presented.12

As appellant submitted relevant and pertinent new evidence on reconsideration that was 

not previously considered by OWCP, he is entitled to a review of the merits of his claim under 

section 10.606(b)(3) of OWCP regulations.13 The case shall therefore be remanded to OWCP to 

consider whether the audiologist’s July 28, 2015 letter, which Dr. McManus countersigned, is 

sufficient to require further development. The Board will therefore set aside OWCP’s 

November 17, 2015 decision. After this and such further development deemed necessary, 

OWCP shall issue an appropriate merit decision. 

CONCLUSION

The Board finds that OWCP improperly denied appellant’s request for a merit review 

pursuant to section 8128(a) of FECA.

 

11 Id. at § 10.606(b)(3); see R.M., 59 ECAB 690 (2008).

12 P.H., Docket No. 15-1453 (issued August 4, 2016); C.L., Docket No. 14-1904 (issued May 18, 2015).

13 20 C.F.R. § 10.606(b)(3); see R.M., 59 ECAB 690 (2008).
6

ORDER

IT IS HEREBY ORDERED THAT the November 17, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded to OWCP for proceedings 

consistent with this decision of the Board.

Issued: December 15, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board