United States Department of Labor

Employees’ Compensation Appeals Board

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T.B., Appellant

and

TENNESSEE VALLEY AUTHORITY, 

DIVISION OF POWER SYSTEMS 

OPERATIONS WORKERS’ COMPENSATION 

DEPARTMENT, Chattanooga, TN, Employer

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Docket No. 18-1214

Issued: January 29, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On May 29, 2018 appellant filed a timely appeal from a February 20, 2018 merit decision 

and a March 9, 2018 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 over the merits of this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on 

appeal. Id.
2

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish an injury in 

the performance of duty; and (2) 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 December 18, 2017 appellant, then a 58-year-old electrician, filed an occupational 

disease claim (Form CA-2) alleging that he developed hearing loss and tinnitus as a result of 

employment-related noise exposure. He noted that he first became aware of his condition on 

November 11, 1998. Appellant reported that he worked around high voltage transformers and high 

pressure air operated breakers for extended periods of time which caused a decline in his hearing. 

He noted no other activities which exposed him to loud noises. Appellant reported that he had 

previously filed a hearing loss claim3and had hoped his condition would stabilize, but instead it 

continued to decline.

By development letter dated January 3, 2018, OWCP requested additional factual 

information from appellant, including information regarding his employment history, when he 

related his hearing loss to conditions of employment, and all nonoccupational exposure to noise. 

It also requested that he provide medical documentation pertaining to any prior treatment he 

received for ear or hearing problems. OWCP further noted that OWCP File No. xxxxxx338 

remained open and if he was claiming increased impairment for hearing loss, he should submit a 

claim for compensation form (Form CA-7) under that claim with supporting medical evidence 

establishing increased impairment. By separate letter of even date, it requested that the employing 

establishment provide further information pertaining to appellant’s claim for occupational noise 

exposure. No further evidence was received.

By decision dated February 20, 2018, OWCP denied appellant’s claim finding that the 

evidence of record was in sufficient to establish that an injury occurred as alleged, as he neither

responded to its January 3, 2018 development letter, nor provided evidence in support of his claim.

On March 1, 2018 appellant requested reconsideration of the February 20, 2018 OWCP 

decision. The request consisted only of a fax cover sheet, a copy of the February 20, 2018 decision,

and the appeal request form. No evidence was received.

By decision dated March 9, 2018, OWCP denied appellant’s request for reconsideration, 

finding that he neither raised substantive legal questions nor submitted relevant and pertinent new 

evidence.

 

3 The Board notes that appellant has a prior occupational disease claim which OWCP accepted for bilateral

sensorineural hearing loss on December 28, 2004 under OWCP File No. xxxxxx338. On February 15, 2005 appellant 

received a schedule award for 13 percent permanent impairment of loss of hearing in both ears. The claim remains 

open for medical benefits. The record before the Board contains no other information pertaining to appellant’s prior 

hearing loss claim.
3

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA 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 or specific condition for which compensation is claimed is causally related to the 

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

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

In order to determine whether an employee actually sustained an injury in the performance 

of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally, 

fact of injury consists of two components which must be considered in conjunction with one 

another. The first component to be established is that the employee actually experienced the 

employment incident which is alleged to have occurred.6 The second component is whether the 

employment incident caused a personal injury and generally can be established only by medical 

evidence. 

To establish that an injury was sustained in the performance of duty in a claim for 

occupational disease, an employee must submit: (1) a factual statement identifying employment 

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

condition; (2) medical evidence establishing the presence or existence of the disease or condition 

for which compensation is claimed; and (3) medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the employee.7 

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish an injury in the 

performance of duty. 

Appellant must establish all of the elements of his claim in order to prevail. He must

provide a factual statement identifying the employment factors alleged to have caused the 

employment injury before OWCP can review the medical evidence to determine whether an 

employment-related medical condition has been diagnosed. 

The Board finds that appellant has not provided adequate detail to establish that he 

experienced employment-related noise exposure following his previously accepted injury.8 On his 

Form CA-2 appellant generally stated that exposure to high voltage transformers and high pressure 

 

4 Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

5 Michael E. Smith, 50 ECAB 313 (1999).

6 Elaine Pendleton, supra note 4. 

7 See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994). 

8 P.J., Docket No. 15-1816 (issued December 23, 2015).
4

air operated breakers for extended periods caused a decline in his hearing. The record reflects that 

appellant has previously filed an occupational disease claim pertaining to employment-related 

noise exposure which was accepted by OWCP for bilateral sensorineural hearing loss under 

OWCP File No. xxxxxx338. With regard to the present occupational disease claim, he failed to 

describe, with dates, specific continued work-related noise exposure to which he is attributing to 

his current tinnitus and hearing loss.

9

 

By letter dated January 3, 2018, OWCP requested that appellant describe the factual 

circumstances of his injury and provided a questionnaire for his completion. Appellant neither 

responded to the questionnaire, nor provided evidence in support of his claim. As such, the record 

does not contain an explanation as to the type of noise, decibel level, or hours of exposure., nor 

does it contain a description of appellant’s employment duties on specific dates following his first 

accepted hearing loss claim or how his federal employment exposed him additional factors of

hazardous noise. The only explanation provided pertaining to his work-related noise exposure was 

the generalized and vague statement noted in his Form CA-2. By failing to describe the workrelated noise exposure and circumstances surrounding the alleged injury, appellant has not met his 

burden of proof to establish that the occupational exposure occurred as alleged.10 

The Board, therefore, finds that he has failed to meet his burden of proof.

11

Appellant may submit additional evidence, together with a written request for 

reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. 

§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

LEGAL PRECEDENT -- ISSUE 2

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.12 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.13

 

9 M.L., Docket No. 14-1208 (issued September 29, 2014).

10 P.T., Docket No. 14-0598 (issued August 5, 2014).

11 Upon return of the case file OWCP should administratively combine the current file with OWCP File No. 

xxxxxx338, with File No. xxxxxx338 designated as the master file, as OWCP has already accepted occupational 

hearing loss as an accepted condition.

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

13 K.H., 59 ECAB 495 (2008). 
5

ANALYSIS -- ISSUE 2

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).

The issue presented on appeal was 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 his application for reconsideration, appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law, and he did not advance a new and relevant legal argument not 

previously considered. Consequently, he is not entitled to review of the merits of his claim based 

on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).14

The underlying issue on appeal involved whether appellant was exposed to employmentrelated noise in the performance of duty. Appellant’s reconsideration request does not provide 

greater detail pertaining to whether his occupational noise exposure occurred in the manner 

alleged. Furthermore, he failed to submit any relevant and pertinent new evidence in support of 

his request for reconsideration.15 Rather, he simply resubmitted OWCP’s February 20, 2018 

decision along with his appeal request form. Material which is duplicative of that already 

contained in the case record does not constitute a basis for reopening a case.16 

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 

submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish an injury in the 

performance of duty. The Board also finds that OWCP properly denied his request for 

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

 

14 C.B., Docket No. 08-1583 (issued December 9, 2008).

15 M.C., Docket No. 14-0021 (issued March 11, 2014); M.H., Docket No. 13-2051 (issued February 21, 2014). 

16 See Kenneth R. Mroczkowski, 40 ECAB 855 (1989).
6

ORDER

IT IS HEREBY ORDERED THAT the March 9 and February 20, 2018 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: January 29, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board