United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.Q., Appellant

and

DEPARTMENT OF HOMELAND SECURITY,

FEDERAL AIR MARSHAL SERVICE, 

College Park, GA, Employer

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Docket No. 18-0641

Issued: October 5, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 February 5, 2018 appellant, through counsel, filed a timely appeal from a December 19, 

2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from the last merit decision dated June 10, 2016, to the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board lacks jurisdiction to review the merits of the case.

 

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 5 U.S.C. § 8101 et seq.
2

ISSUE

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

merits of his claim under 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On December 7, 2015 appellant, then a 51-year-old federal air marshal, filed an 

occupational disease claim (Form CA-2) alleging hearing loss due to his federal employment

where he was exposed to loud noise. He noted that on October 27, 2015 Dr. Ken Kwok, a family 

practitioner, who provided annual physical examinations for the employing establishment,

informed him that he had an additional 9 percent hearing loss in addition to his previously 

documented 30 percent hearing loss. Appellant claimed that he first became aware of his hearing 

loss on December 17, 2014 and first realized its relationship to his federal employment on 

October 27, 2015. He did not submit additional evidence.

By development letter dated December 23, 2015, OWCP advised appellant of the type of 

factual evidence needed to establish his claim. It provided a development questionnaire for his 

completion. In another letter dated December 23, 2015, OWCP requested that the employing 

establishment address the sources of appellant’s noise exposure, including decibel and frequency 

level, period of exposure, and hearing protection provided. It also requested that the employing 

establishment provide treatment notes if appellant was treated at an employing establishment

medical facility. OWCP afforded appellant and the employing establishment 30 days to submit 

their responses. 

OWCP received appellant’s employing establishment health records, which included 

audiograms performed as part of the employing establishment’s hearing conservation program 

dated January 26, 2005 through August 6, 2015.

By letter dated January 21, 2016, the employing establishment controverted appellant’s 

claim, specifically contending that his claimed hearing loss was not work related. It noted its 

policy that required employees to wear ear protection during live fire training. The employing 

establishment further noted the results of noise studies, which revealed that air marshals were never 

exposed to sound pressure levels exceeding 85 decibels/weighted over eight hours and that sound 

pressure measurements in the interiors of an aircraft cabin did not approach regulatory action levels 

under the Occupational Safety and Health Administration. It submitted appellant’s yearly 

audiogram records dated January 26, 2005 through January 9, 2015.

By decision dated June 10, 2016, OWCP denied appellant’s occupational disease claim as 

the evidence of record was insufficient to establish that he actually experienced the employment 

factors alleged to have caused his claimed employment-related hearing loss. It noted that it had 

received multiple audiogram reports from January 26, 2005 through January 9, 2015 in response 

to its December 23, 2015 development letter, but did not receive any description of his 

employment duties to which he attributed his hearing loss.

On May 10, 2017 appellant, through counsel, requested reconsideration. Counsel

contended that OWCP did not reference the audiograms dated 2005 through 2015 in its June 10, 
3

2016 decision. He further contended that these audiograms were not reviewed by a medical doctor. 

Counsel asserted that appellant had established a prima facie case of work-related hearing loss as 

the audiograms showed progressive hearing loss during the duration of appellant’s federal 

employment. He maintained that, if OWCP had any question as to whether appellant suffered 

from work-related, noise-induced hearing loss, it should have referred him to a specialist for 

evaluation.

In support of his reconsideration request, counsel submitted duplicate copies of the 

employing establishment audiograms dated May 11, 2005 through August 6, 2015 and contended 

that OWCP did not reference the audiograms in its decision. 

By decision dated December 19, 2017, OWCP denied further merit review of appellant’s 

claim. It found that he failed to present any relevant evidence to show that OWCP erroneously 

applied or interpreted a specific point of law. OWCP noted that appellant did not submit factual 

evidence describing the implicated employment factors.

LEGAL PRECEDENT

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

will review an award for or against compensation, either under its own authority or on application 

by a claimant.3 Section 10.608(b) of OWCP’s regulations provide that a timely request for 

reconsideration may be granted if OWCP determines that the claimant has presented evidence 

and/or argument that meet at least one of the standards described in section 10.606(b)(3).4 This 

section provides that the application for reconsideration must be submitted in writing and set forth 

arguments and contain evidence that either: (1) shows that OWCP erroneously applied or 

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

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

considered by OWCP.5 Section 10.608(b) provides that when a request for reconsideration is 

timely, but fails to meet at least one of these three requirements, OWCP will deny the application 

for reconsideration without reopening the case for a review on the merits.6

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

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

In his May 10, 2017 request for reconsideration, counsel did not show that OWCP 

erroneously applied or interpreted a specific point of law, or advance a new and relevant legal 

argument not previously considered. He contended that OWCP’s June 10, 2016 decision did not 

reference audiograms dated 2005 through 2015 that were submitted by appellant. Counsel further 

 

3 5 U.S.C. § 8128(a).

4 20 C.F.R. § 10.608(a).

5

Id. at § 10.606(b)(3).

6

Id. at § 10.608(b).
4

contended that these audiograms were not reviewed by a medical doctor. He alleged that appellant 

had established a prima facie case of work-related hearing loss as the audiograms showed 

progressive hearing loss during the duration of appellant’s federal employment. Counsel also 

alleged that, if OWCP had any question as to whether appellant suffered from work-related, noiseinduced hearing loss, it should have referred him to a specialist for evaluation. Contrary to 

counsel’s contention, OWCP, in its June 10, 2016 decision, specifically noted that it had received

multiple audiogram reports from February 10, 2009 through January 9, 2015 in response to its 

December 23, 2015 development letter. Moreover, counsel’s contentions that the submitted 

audiograms were sufficient to establish appellant’s employment-related, noise-induced hearing 

loss and that appellant should be referred to a medical specialist for evaluation if necessary are not 

relevant to the underlying issue, which is factual in nature. These assertions do not address the 

factual issue of whether appellant established factors of his federal employment that caused or 

contributed to his claimed hearing loss. Evidence which does not address the particular issue under 

consideration does not constitute a basis for reopening a case.7 For these reasons, the Board finds 

that appellant is 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).

The Board further finds that appellant did not submit relevant and pertinent new evidence 

in support of his May 10, 2017 request for reconsideration. Appellant submitted duplicate copies 

of the employing establishment audiograms dated May 11, 2005 through August 6, 2015. The 

Board has previously held that evidence that repeats or duplicates evidence previously of record 

has no evidentiary value and does not constitute a basis for reopening a case.8 OWCP had denied 

the claim as appellant had not established factors of his federal employment sufficient to cause 

hearing loss. Appellant did not submit any statement or evidence that clarified factors of 

employment. The audiograms did not provide evidence of factors of appellant’s employment. 

Evidence which does not address the particular issue under consideration does not constitute 

pertinent new and relevant evidence.9

The Board accordingly finds that appellant failed to meet any of the requirements of 20 

C.F.R. § 10.606(b)(3) in his May 10, 2017 request for reconsideration. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review.

On appeal counsel argues the merits of appellant’s claim and asserts that he need not rule 

out other causes, that he provided prima facie evidence of work-related hearing loss based on a 

work audiogram, and that he triggered necessary elements of his claim for allowance or further 

development. As noted above, the Board only has jurisdiction over OWCP’s June 10, 2016 

nonmerit decision which denied appellant’s request for reconsideration and, therefore, is precluded 

from conducting a merit review.

 

7 See K.T., Docket No. 15-1916 (issued February 1, 2016).

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

9 See E.E., Docket No. 18-0141 (issued May 18, 2018). 
5

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the December 19, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 5, 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