United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.F., Appellant 

and 

DEPARTMENT OF THE ARMY, CHEMICAL 

MUNITIONS COMMAND, Tooele, UT, 

Employer 

__________________________________________ 

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Docket No. 16-1398 

Issued: December 19, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 20, 2016 appellant filed a timely appeal from an April 28, 2016 nonmerit 

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

elapsed from the last merit decision of November 2, 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 over the merits of this claim. 

ISSUE 

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

pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On May 18, 2015 appellant, then a 68-year-old diesel generator mechanic, filed an 

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

employment. He indicated that he first became aware of his condition in June 1975 and realized 

it resulted from his employment in July 1981. Appellant noted that he did not file his claim 

within 30 days because he retired and was not informed regarding workers’ compensation. On 

the back of the Form CA-2, the employing establishment indicated that appellant retired on 

April 3, 2007 and that the employing establishment closed in July 2013. It pointed out that 

appellant filed his claim well past the three-year time limitation. 

By letter dated June 10, 2015, OWCP advised appellant that there was no evidence 

submitted to establish his claim. It requested that he respond to its questionnaire to substantiate 

the factual elements of his claim, including timeliness, and provide medical evidence to establish 

that he sustained hearing loss as a result of his employment. A similar letter was sent to the 

employing establishment. Appellant was afforded 30 days to submit this additional evidence. 

On June 24, 2015 OWCP received appellant’s response to its development letter. He 

listed the employment positions he held from December 1965 until he retired from federal 

service in April 2007 and described the type of and duration of noise he was exposed to for each 

employment position. Appellant submitted a March 2006 hospital record, which indicated that 

appellant had 391⁄2 years of federal civil service. He also provided various employee health 

records dated August 1978 to September 2006, audiograms dated 1981 to 2008, and diagnostic 

measurements dated 1996 to 2006. Appellant submitted SF50 Personnel Action forms dated 

September 24, 2000 to May 26, 2015. 

Appellant was treated by Dr. Edwin W. Aldous, a Board-certified otolaryngologist, who 

related in May 15, 2000 and September 23, 2004 narrative reports that appellant sustained 

sensorineural hearing loss in his left ear. Dr. Aldous noted that appellant worked around loud 

noises and tried to wear hearing protection. 

In a July 28, 2015 statement, the employing establishment confirmed that appellant had 

worked until 2007 and indicated that industrial hygiene monitoring records revealed that 

appellant was exposed to hazardous noise. It provided noise assessments of various buildings 

and equipment associated with appellant’s job. The employing establishment also provided 

appellant’s Summary of Federal Service form. 

On September 29, 2015 OWCP referred appellant, along with a statement of accepted 

facts and the medical record, to Dr. Stewart Barlow, a Board-certified otolaryngologist, for an 

audiogram and second opinion examination. In an October 23, 2015 report, Dr. Barlow 

diagnosed bilateral sensorineural hearing loss and tinnitus and indicated that appellant’s 

conditions were due to his federal employment. He recommended hearing aids. 

OWCP denied appellant’s claim in a decision dated November 2, 2015. It determined 

that appellant’s occupational disease claim was untimely filed because it was not filed within 3 

years of the date of injury and appellant did not demonstrate that his immediate supervisor had 

actual knowledge of his condition within 30 days of the date of injury. OWCP pointed out that 
3

although appellant noted that he first became aware of his condition in 1975 and first realized 

that his condition was caused or aggravated by his condition in 1981, he did not file his claim 

until May 2015. 

On March 29, 2016 OWCP received appellant’s request for reconsideration. 

In support of his request, appellant submitted employing establishment records including 

a record of injury signed by appellant’s supervisor on August 1, 1978 which related that 

appellant sustained a perforated right eardrum on August 1, 1978 when he was hit by a 

volleyball, as well an employing establishment request for authorization of medical treatment 

(Form CA-16) which described the alleged injury as right ear hit by a volleyball during a work 

break. OWCP also received employing establishment hearing conservation data which provided 

audiogram results from January 1, 1991 through March 19, 2007. 

In a March 10, 2016 narrative report, Dr. Lisa Christensen, an audiologist, related that 

appellant was experiencing difficulty in hearing and understanding words as well as constant 

ringing noise in both ears. She noted that a review of appellant’s reference audiogram results 

from the beginning of his employment in the mid-1970s, hearing test results from 2007 when he 

retired, and current hearing test results confirmed a progressive, significant, and permanent 

hearing impairment in both ears. Dr. Christensen explained that this type of high frequency 

sensorineural hearing loss was consistent with a history of loud noise exposure. She diagnosed 

mild-to-severe sensorineural hearing loss, bilaterally and abnormal acoustic reflexes. 

Dr. Christensen strongly recommended hearing aids to help correct his hearing impairment. She 

provided an audiogram examination report dated March 10, 2016. Dr. Christensen also 

submitted a schedule award report, which indicated that appellant had 29.1 percent binaural 

hearing impairment with a date of maximum improvement of 2007. 

By decision dated April 28, 2016, OWCP denied further merit review of appellant’s 

claim. It found that appellant’s reconsideration letter failed to raise a substantive legal question 

and he failed to submit relevant and pertinent new evidence sufficient to warrant merit review 

pursuant to 5 U.S.C. § 8128(a). 

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award 

for or against payment of compensation at any time on his own motion or on application.2

 

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted 

a specific point of law; (2) advances a relevant legal argument not previously considered by 

 2

 5 U.S.C. § 8128(a). 
4

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

OWCP.3 

A request for reconsideration must also be received by OWCP within one year of the date 

of OWCP’s decision for which review is sought.4

 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.5

 If the request is timely but fails to meet at least one 

of the requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.6

ANALYSIS 

By decision dated November 2, 2015, OWCP denied appellant’s occupational disease 

claim because it was not timely filed within three years of the date of injury. On March 29, 2016 

it received appellant’s request for reconsideration. OWCP denied further merit review in a 

decision dated April 28, 2016, finding that the evidence submitted on reconsideration neither 

raised a substantive legal question nor constituted relevant and pertinent new evidence sufficient 

to warrant merit review. 

The Board notes initially that appellant did not show that OWCP erroneously interpreted 

a point of law, and he did not advance a legal argument not previously considered.7 Appellant 

did however submit new evidence. 

The Board finds that OWCP abused its discretion by denying merit review of the claim as 

appellant submitted relevant and pertinent new evidence. OWCP denied appellant’s claim based 

upon a finding that appellant untimely filed his occupational disease claim. 

Appellant’s claim would be regarded as timely under 5 U.S.C. § 8122(a)(1) of FECA if 

his immediate superior had actual knowledge of the injury within 30 days or under section 

8122(a)(2) if written notice of injury was given to his immediate superior within 30 days. 

However, participation in an employing establishment hearing conservation program can also 

establish constructive notice of injury.8

 A positive test result from an employing establishment 

program of regular audiometric examination as part of a hearing conservation program is 

sufficient to establish knowledge of a hearing loss so as to put the immediate superior on 

notice of an on-the-job injury.9

 3

 20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 

(issued December 9, 2008). 

4 Id. at § 10.607(a). 

5 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007). 

6 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010). 

7 Supra note 3. 

8 See J.C., Docket No. 15-1517 (issued February 25, 2016); see also M.W., Docket No. 16-0394 (issued 

April 8, 2016). 

9 See W.P., Docket No. 15-0597 (issued January 27, 2016). 
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In support of his request for reconsideration appellant submitted employing establishment 

records including a document signed by his supervisor on August 1, 1978 which related that 

appellant sustained a perforated right ear drum on August 1, 1978 when he was hit by volleyball, 

as well as an authorization for medical treatment (Form CA-16) which related appellant’s 

allegations that he sustained a right ear injury on August 1, 1978 during a work break. He also 

submitted other employing establishment hearing conservation data which provided audiogram 

results from January 1, 1991 through March 19, 2007. This evidence of hearing conservation 

records is pertinent and relevant to the underlying issue of whether the employing establishment 

had constructive timely notice of appellant’s alleged injury. 

The Board finds that appellant did submit relevant and pertinent new evidence with his 

request for reconsideration. Therefore, OWCP improperly refused to reopen his case for further 

consideration of the merits of his claim pursuant to 5 U.S.C. § 8128. 

CONCLUSION 

The Board finds that OWCP improperly denied appellant’s request for reconsideration 

pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the April 28, 2016 decision of the Office of 

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

consistent with this decision. 

Issued: December 19, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board