United States Department of Labor

Employees’ Compensation Appeals Board

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T.L., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

BOARD OF VETERANS APPEALS, 

Washington, DC, Employer

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Docket No. 19-0087

Issued: June 26, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 16, 2018 appellant filed a timely appeal from an April 19, 2018 merit 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.

ISSUE

The issue is whether appellant has met his burden of proof to establish that he developed 

hearing loss and tinnitus causally related to the accepted factors of his federal employment.

FACTUAL HISTORY

On September 15, 2015 appellant, then a 38-year-old associate attorney, filed an 

occupational disease claim (Form CA-2) alleging that he sustained hearing loss and tinnitus due 

to noise exposure in the course of his federal employment. He stated that, for the period 

 

1 5 U.S.C. § 8101 et seq.
2

November 2014 to February 2015, extensive work was done on the sub-level garages at the 

employing establishment. The work was done from 9:00 a.m. to 5:00 p.m., Monday through 

Friday, while appellant was working on the first level of the building. He indicated that the noise 

was “exceedingly loud inside, 170 [decibels].”

On February 24, 2016 OWCP referred appellant to Dr. Stephen Bane, a Board-certified 

otolaryngologist, for a second opinion evaluation to determine the nature and extent of his hearing 

loss and tinnitus. It scheduled the examination for March 10, 2016. 

By decision dated March 28, 2016, OWCP denied appellant’s claim finding that the 

medical evidence of record failed to establish causal relationship between his hearing loss and 

tinnitus and his accepted employment exposure to noise. 

OWCP received Dr. Bane’s March 10, 2016 report on March 29, 2016. Dr. Bane reviewed 

a statement of accepted facts, history of the injury, and the medical evidence of record. He 

conducted a physical examination and found that appellant’s ear canals and drums were normal. 

Drum motility was normal and the results of basic tuning fork testing was normal. Dr. Bane 

diagnosed mild high-frequency hearing loss in the left ear, but opined that the sensorineural 

hearing loss was not causally related to the noise exposure encountered in appellant’s federal 

employment. He explained that most people start to lose hearing in their 40s and if appellant’s 

hearing loss was secondary to noise exposure, both ears would have been expected to have loss. 

Dr. Bane noted that appellant only had mild hearing loss on the left side and concluded that “noise 

exposure from construction in a garage below the building [was] most likely not significant enough 

to have caused a hearing loss, let alone the loss in question.” He reiterated that if appellant did 

have hearing loss, it should have been symmetrical. 

On April 29, 2016 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. A telephonic hearing was held on August 10, 2016. Appellant 

provided testimony and the hearing representative held the case record open for 30 days for the 

submission of additional evidence. OWCP did not receive additional evidence.

By decision dated September 27, 2016, OWCP’s hearing representative affirmed the

March 28, 2016 decision. 

On August 25, 2017 appellant requested reconsideration and submitted new medical 

evidence in support of his claim, including a June 21, 2017 report from Dr. Timothy J. O’Brien, a 

Board-certified otolaryngologist. Dr. O’Brien opined that “the only reasonable explanation is that 

[appellant’s] hearing loss and tinnitus [were], more likely than not, caused by or aggravated by the 

noise [he] was exposed to at 425 I.” 

In a letter dated January 30, 2018, appellant informed OWCP of a change of address from 

Manassas to Bristow, Virginia. OWCP received his request on February 2, 2018 

By letter dated February 6, 2018, OWCP acknowledged receipt of appellant’s change of 

address request and noted that action had been taken to change his address for the purposes of case 

management and compensation payments. This letter was sent to his updated address in Bristow, 

Virginia. 
3

In a memorandum dated February 15, 2018, OWCP indicated that it had requested an 

addendum report from its second opinion examiner, Dr. Bane, with regard to appellant’s hearing 

loss claim. 

In a letter dated March 29, 2018, OWCP indicated that it had scheduled an appointment on 

April 10, 2018 at 1:00 p.m. for appellant to be reexamined by Dr. Bane for a supplemental second 

opinion examination. It noted that he was to refrain from exposure to loud noises for at least 16 

hours prior to his examination. This letter was sent to appellant’s former address in Manassas, 

Virginia. 

In a subsequent letter dated April 4, 2018, OWCP indicated that it had scheduled an 

appointment on April 19, 2018 at 9:30 a.m. for appellant to be reexamined by Dr. Bane for a 

supplemental second opinion examination. This letter was also sent to appellant’s former address 

in Manassas, Virginia. 

In an e-mail message dated April 19, 2018, OWCP’s medical referral group advised the 

claims examiner that appellant had not appeared for the appointment that was scheduled for that 

day at 9:30 a.m. 

By decision dated April 19, 2018, OWCP denied modification of its prior decision. It noted 

that appellant was scheduled to be reevaluated by a second opinion specialist, Dr. Bane, on 

April 19, 2018 at 9:30 a.m. and appellant had not shown up for the examination.” 

LEGAL PRECEDENT

An employee seeking benefits under FECA2 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 timely filed within the applicable 

time limitation of FECA,3that an injury was sustained in the performance of duty as alleged, and 

that any disability or medical condition for which compensation is claimed is 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 upon a traumatic injury or an occupational disease.

5

 

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, an employee must submit the following: (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 

 

2

Id.

3 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

5 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).
4

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.6

In administering FECA, OWCP must attempt to obtain any evidence which is necessary 

for the adjudication of the case which is not received when the notice or claim is submitted. Some 

initial claims require full-scale medical development because the nature of exposure is in question, 

the diagnosis is not clearly identified, or the relationship of the condition to the exposure is not 

obvious. Certain types of conditions, such as hearing loss and asbestosis claims, require OWCP 

to refer the claimant for examination by a qualified specialist if the report submitted by the claimant 

does not meet all of its requirements for adjudication.

7

It is presumed, in the absence of evidence to the contrary, that a notice mailed to an 

individual in the ordinary course of business was received by that individual.8 This presumption 

arises when it appears from the record that the notice was properly addressed and duly mailed.9 

The appearance of a properly addressed copy in the case record, together with the mailing custom 

or practice of the sender, will raise a presumption that the original was received by the addressee. 

However, as a rebuttable presumption, receipt will not be assumed when there is evidence of 

nondelivery.10 Also, it is axiomatic that the presumption of receipt does not apply where a notice 

is sent to an incorrect address.11

ANALYSIS

The Board finds that this case is not in posture for decision.

On February 2, 2018 OWCP received a letter dated January 30, 2018 from appellant 

informing OWCP of a change of address from Manassas to Bristow, Virginia. It acknowledged 

its receipt of his change of address request in a letter dated February 6, 2018. This letter was sent 

to appellant’s current address in Bristow, Virginia. However, OWCP sent two notices dated 

March 29 and April 4, 2018, informing him that it had scheduled a supplemental second opinion 

examination to his former address in Manassas, Virginia before issuing its April 19, 2018 decision

finding that he failed to appear for a reevaluation examination by Dr. Bane scheduled for 

April 19, 2019. Because it had not mailed its correspondences to appellant’s current home address, 

the presumption of receipt under the mailbox rule is rebutted.

12

 For this reason, the Board finds 

 

6 D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. 

Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.9 (June 2011). 

See also id. at Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600 (October 1990).

8 George F. Gidicsin, 36 ECAB 175 (1984) (when OWCP sends a letter of notice to a claimant, it must be presumed, 

absent any other evidence, that the claimant received the notice).

9 Michelle R. Littlejohn, 42 ECAB 463 (1991).

10 See C.O., Docket No. 10-1796 (issued March 23, 2011); M.U., Docket No. 09-0526 (issued September 14, 2009).

11 See M.C., Docket No. 17-0613 (issued August 7, 2018); Clara T. Norga, 46 ECAB 473 (1995); see also W.A.,

Docket No. 06-1452 (issued November 27, 2006).

12 Id.
5

that OWCP effectively denied his claim without proper notice and opportunity to attend the 

scheduled medical examinations.

13

Accordingly, the Board finds that this case is not in posture for decision. The Board will 

set aside OWCP’s April 19, 2018 decision denying appellant’s claim. The case is remanded for 

issuance of notice to his proper home address detailing the date, time, and location of his 

appointment for a supplemental second opinion examination to determine the nature and extent of 

his tinnitus and hearing loss.

14

 After such further development as may be necessary, OWCP shall 

issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision. 

ORDER

IT IS HEREBY ORDERED THAT the April 19, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further action consistent with 

this decision of the Board.

Issued: June 26, 2019

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

 

13 L.R., Docket No. 14-0361 (issued June 5, 2014) (remanding a case to OWCP because a development letter was 

not sent to the address shown on appellant’s claim form).

14 A.B., Docket No. 15-0290 (issued May 4, 2015).