United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.H., Appellant

and

DEPARTMENT OF THE ARMY, ANNISTON 

ARMY DEPOT, Anniston, AL, Employer

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Docket No. 17-1796

Issued: February 6, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 August 17, 2017 appellant filed a timely appeal from a March 8, 2017 merit decision 

and a July 31, 2017 nonmerit decision 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 to consider the merits of this case.

ISSUES

The issues are: (1) whether appellant met his burden of proof to establish hearing loss 

causally related to factors of his federal employment; and (2) whether OWCP abused its 

discretion in denying appellant’s request for a telephonic hearing before an OWCP hearing 

representative.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On May 6, 2015 appellant, then a 62-year-old electrician, filed an occupational disease 

claim (Form CA-2) alleging that on December 9, 1998 he first realized that he had a bilateral 

hearing loss and that it was related to factors of his federal employment. He remained employed 

at the employing establishment following this awareness. 

In a development letter dated May 15, 2015, OWCP advised appellant of the additional 

evidence needed to establish his claim, including a detailed history of occupational and 

nonoccupational noise exposure, and medical evidence diagnosing a condition causally related to 

noise exposure at work. It afforded appellant 30 days to submit such evidence. 

In an April 21, 2015 statement, appellant noted that he first became aware of his hearing 

loss in June 1998 and that in January 2015 he first became aware of the connection to his federal 

employment, after his last hearing evaluation. He noted that he used hearing protection in the 

form of earplugs and that he started wearing hearing protection during his military service. 

Appellant listed military and other noise exposures from July 1972 to March 15, 2002. He also 

listed other noise exposure from various tools used at the employing establishment from 

November 2006 to the present.

Appellant submitted various employing establishment audiograms from 1981 to 2005 

which revealed progressive bilateral high-frequency sensorineural hearing loss. He noted that 

during his employment from 1982 to the present time he was issued hearing protection in the 

form of earplugs and earmuffs.

OWCP received various employing establishment audiograms from 2006 to 2015 which 

revealed progressive bilateral high-frequency sensorineural hearing loss. In a memorandum 

dated April 29, 2015, the employing establishment noted that during appellant’s employment 

from 2006 to the present time he was issued hearing protection, which he used when required. It 

noted that appellant had noise exposure prior to his employment with the employing 

establishment.

By letter dated July 21, 2015, OWCP referred appellant to Dr. Howard M. Goldberg, a 

Board-certified otolaryngologist, for otologic examination and audiological evaluation. 

Dr. Goldberg completed an outline for otologic evaluation (Form CA-1332) dated 

August 18, 2015. He replied “normal hearing in the speech range” when asked to comment on 

appellant’s hearing at the beginning of his significant noise exposure in federal employment. 

Dr. Goldberg also responded “no” indicating that appellant did not show a sensorineural hearing 

loss in excess of what would be normally predicated on the basis of presbycusis and that the 

workplace exposure was not of sufficient intensity and duration to have caused the loss in 

question. He reported a normal physical examination of the canals, drum motility, and basic fork 

tests and diagnosed mild bilateral sensorineural hearing loss. Dr. Goldberg checked a box 

indicating that appellant’s hearing loss was “not due” to noise exposure during his federal 

employment. He explained that appellant had mild bilateral sensorineural hearing loss due to 

prior exposure to hazardous noise. Dr. Goldberg further reported that appellant’s hearing was in 

the normal range both at the beginning and end of his federal employment. An audiogram 
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performed that day with testing at the frequency levels of 500, 1,000, 2,000, and 3,000 Hertz 

revealed decibel losses for the right ear as 15, 15, 25, and 30 respectively. Testing at the same 

frequency levels revealed decibel losses of 15, 15, 15, and 40 for the left ear. 

By decision dated September 2, 2015, OWCP denied appellant’s claim as it found that his

hearing loss was not sustained in the performance of duty.

On March 17, 2016 OWCP received appellant’s request for reconsideration dated

September 2, 2015 and a letter dated March 5, 2016. Appellant contended that his hearing loss 

was employment related as the military had determined his hearing loss was not service related. 

He also related that he had worked for the employing establishment for 11 years and that he was 

retiring on April 30, 2016.2

By decision dated February 15, 2017, OWCP purportedly granted modification of its 

prior decision, without further findings. The appeal rights attached to the decision noted that 

appellant could request reconsideration before OWCP and review by the Board. 

On a form dated February 22, 2017 and received by OWCP on February 27, 2017, 

appellant requested reconsideration. 

On March 8, 2017 OWCP informed appellant that the February 15, 2017 decision had 

been issued in error and was vacated. It noted that the February 15, 2017 decision had been 

printed without content and that further review of his case would be undertaken. OWCP 

attached appeal rights, which included requesting either an oral hearing or review of the written 

record by an OWCP hearing representative. 

In a separate decision dated March 8, 2017, OWCP modified its prior decision. It

accepted that appellant was exposed to noise from machinery and tools at his federal 

employment, as alleged, but denied appellant’s claim because he had not established hearing loss

causally related to noise exposure at work. 

On March 20, 2017 OWCP received appellant’s request for review of the written record 

by an OWCP hearing representative.

By decision dated July 31, 2017, OWCP denied appellant’s request for review of the 

written record by an OWCP hearing representative, as the only right of appeal appellant had was 

either to request reconsideration by OWCP or review by the Board. The hearing representative 

noted that OWCP had previously denied appellant’s claim for a hearing loss by decision dated 

September 2, 2015. Appellant had requested reconsideration on March 17, 2016. He noted that 

the March 8, 2017 correspondence informing appellant that the February 15, 2017 decision had 

been issued in error inadvertently attached appeal rights, including the right to review of the 

written record by an OWCP hearing representative. However, as the correspondence did not 

contain any formal determination or denial, no appeal right should have been attached. The 

 

2 On May 18, 2016 appellant filed an appeal with the Board. In an order dated August 8, 2016, the Board 

dismissed his appeal to the Board from the September 2, 2015 decision as untimely filed. Docket No. 16-1207 

(issued August 8, 2016). 
4

hearing representative noted that the March 8, 2017 decision denying his claim on the basis that 

causal relationship had not been established included appeal rights of review by the Board or 

reconsideration by OWCP, as appellant had previously requested reconsideration. 

Appellant was informed that his case had been considered in relation to the issues 

involved, and that the request was further denied because the issues in this case could be 

addressed by requesting reconsideration from OWCP and submitting evidence not previously 

considered.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was filed within the applicable time 

limitation; that an injury was sustained while in the performance of duty as alleged, and that any 

disability and/or specific condition for which compensation is claimed are causally related to the 

employment injury.4 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5

OWCP’s regulations define an occupational disease as “a condition produced by the work 

environment over a period longer than a single workday or shift.”

6

 To establish that an injury 

was sustained in the performance of duty in an occupational disease claim, a claimant must 

submit the following: (1) medical evidence establishing the presence or existence of the disease 

or condition for which compensation is claimed; (2) a factual statement identifying employment 

factors alleged to have caused or contributed to the presence or occurrence of the disease or 

condition; and (3) medical evidence establishing that the employment factors identified by the 

claimant were the proximate cause of the condition for which compensation is claimed or, stated 

differently, medical evidence establishing that the diagnosed condition is causally related to the 

employment factors identified by the claimant. 

Appellant has the burden of proof to establish by the weight of the reliable, probative, 

and substantial evidence that his hearing loss was causally related to noise exposure in his 

federal employment.7 Neither the condition becoming apparent during a period of employment, 

nor the belief of the employee that the hearing loss was causally related to noise exposure in 

federal employment, is sufficient to establish causal relationship.8

 

3 Supra note 1.

4 C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5 S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

6 20 C.F.R. § 10.5(q).

7 R.J., Docket No. 16-1525 (issued January 9, 2017); Stanley K. Takahaski, 35 ECAB 1065 (1984).

8 T.C., Docket No. 17-0872 (issued October 5, 2017). 
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Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.9 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on 

whether there is a causal relationship between the employee’s diagnosed condition and the 

compensable employment factors.10 The opinion of the physician must be based on a complete 

factual and medical background of the employee, must be one of reasonable medical certainty, 

and must be supported by medical rationale explaining the nature of the relationship between the 

diagnosed condition and the specific employment factors identified by the employee.11 

ANALYSIS -- ISSUE 1

OWCP accepted that appellant was a federal civilian employee who filed a timely claim,

that the employment factors occurred, that a medical condition had been diagnosed, and that he 

was within the performance of duty. It denied his claim, however, as the medical evidence did 

not establish a causal relationship between factors of his federal employment and his hearing 

loss. The Board finds that appellant has not met his burden of proof to establish that his hearing 

loss was causally related to factors of his federal employment.

In a report dated August 18, 2015, Dr. Goldberg examined appellant, reviewed his 

medical records and analyzed the results of an audiogram performed on that date. He diagnosed 

mild bilateral sensorineural hearing, but found that appellant’s hearing loss was unrelated to 

noise exposure in his federal employment. Dr. Goldberg explained that appellant did not show a 

sensorineural hearing loss in excess of what would be normally predicated on the basis of 

presbycusis and that the workplace exposure was not of sufficient intensity and duration to have 

caused the loss in question. He completed a Form CA-1332 dated December 15, 2015 and 

provided audiometric test findings. Dr. Goldberg reported a normal physical examination of the 

canals, drum motility, and basic fork tests and diagnosed mild bilateral sensorineural hearing 

loss. He related that appellant’s hearing loss was “not due” to noise exposure during his federal 

employment. Dr. Goldberg explained that appellant had a history of noise exposure prior to his 

federal employment and that his hearing was within the normal limits at the beginning and end of 

his federal employment.

The Board finds that Dr. Goldberg’s opinion was based on a review of the evidence and 

supported by medical rationale explaining that appellant’s hearing loss was not a result of noise 

exposure during his federal employment. Dr. Goldberg referenced prior noise exposure and 

noted appellant’s hearing was within normal limits currently and at the beginning of his federal 

employment. He provided examination findings and a reasoned opinion explaining how 

appellant’s hearing loss was not due to the noise exposure in his federal employment.12 

Dr. Goldberg’s August 18, 2015 report, therefore, was sufficient to establish that appellant did 

 

9 Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 

642 (2006).

10 J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

11 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

12 See M.I., Docket No. 16-0759 (issued June 10, 2016).
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not sustain bilateral sensorineural hearing loss causally related to factors of his federal 

employment.

The Board notes that it is appellant’s burden of proof to establish causal relationship. 

Appellant has however not submitted any medical evidence which includes a physician’s 

rationalized opinion on whether there is a causal relationship between the employee’s diagnosed 

condition and the compensable employment factors.13 He therefore has not met his burden of 

proof. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607.

LEGAL PRECEDENT -- ISSUE 2

Any claimant dissatisfied with an OWCP decision shall be afforded an opportunity for 

either an oral hearing or a review of the written record.14 A request for a hearing or review of the 

written record must be submitted, in writing, within 30 days of the date of the decision for which 

a hearing is sought.15 If the request is not made within 30 days, a claimant is not entitled to a 

hearing or a review of the written record as a matter of right. OWCP regulations further provide 

that the claimant must not have previously submitted a reconsideration request (whether or not it 

was granted) on the same decision.16 Although a claimant who has previously sought 

reconsideration is not, as a matter of right, entitled to a hearing or review of the written record, 

the Branch of Hearings and Review may exercise its discretion to either grant or deny a hearing 

following reconsideration.17 Similarly, the Branch of Hearings and Review may exercise its 

discretion to conduct a hearing or review the written record where a claimant requests a second 

hearing or review on the written record on the same issue.18

ANALYSIS -- ISSUE 2

On March 20, 2017 OWCP received appellant’s request for review of the written record 

by an OWCP hearing representative. The Board finds that, because he had previously requested 

reconsideration under section 8128 of FECA, he was not entitled to a hearing as a matter of right 

under section 8124(b)(1).19 OWCP exercised its discretion and determined that the issue in the 

case could be resolved equally well through a request for reconsideration and the submission of 

 

13 Supra note 10. 

14 5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.615.

15 Id. at 10.616(a).

16 Id.

17 D.E., 59 ECAB 438 (2008); Hubert Jones, Jr., 57 ECAB 467 (2006).

18 20 C.F.R. § 10.616(a).

19 Marilyn F. Wilson, 52 ECAB 347 (2001).
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additional evidence.20 The Board therefore finds that OWCP did not abuse its discretion in 

denying appellant’s request for review of the written record in its July 31, 2017 decision.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish hearing loss 

causally related to factors of his federal employment. The Board further finds that OWCP did 

not abuse its discretion in denying his request for review of the written record by an OWCP 

hearing representative.

ORDER

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’

Compensation Programs dated March 8 and July 31, 2017 are affirmed.

Issued: February 6, 2018

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

 

20 J.D., Docket No. 15-1679 (issued December 14, 2015).