United States Department of Labor

Employees’ Compensation Appeals Board

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J.T., Appellant

and

DEPARTMENT OF THE ARMY, ARMY 

CORPS OF ENGINEERS, Louisville, KY, 

Employer

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Docket No. 19-0096

Issued: June 24, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 16, 2018 appellant, through counsel, filed a timely appeal from an August 10, 

2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more 

than 180 days elapsed from OWCP’s last merit decision, dated August 28, 2017, 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 over the merits of this 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 pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On June 22, 2017 appellant, then a 53-year-old marine mechanic, filed an occupational 

disease claim (Form CA-2) alleging that he sustained work-related binaural hearing loss. He 

asserted that he worked every day around diesel engines, generators, air compressors, diesel 

welders, air arc machines, and cranes without having proper hearing protection. Appellant 

reported that he regularly worked 10-hour days, 4 to 7 days per week, but sometimes worked for 

18 to 30 consecutive days. He indicated that he first became aware of his claimed condition and 

its relationship to his federal employment on December 19, 2006. Appellant did not stop work.3 

On the reverse side of the claim form appellant’s immediate supervisor indicated that appellant 

first reported his claimed injury to him on December 19, 2006.

By development letter dated June 28, 2017, OWCP requested that appellant submit 

additional evidence in support of his claim, including a physician’s opinion supported by a medical 

explanation as to how the reported work exposures caused or aggravated his claimed hearing loss. 

It provided an attached questionnaire for his completion, which posed various questions regarding 

his employment history and exposure to hazardous noise in both federal and nonfederal settings.

4

 

By separate letter of the even date, OWCP also requested that the employing establishment submit 

information regarding appellant’s alleged exposure to workplace noise. It afforded both appellant 

and the employing establishment 30 days to respond.

Appellant submitted audiograms, which were administered between December 28, 2000 

and March 12, 2013.5 Most of the audiograms were signed by audiologists. Some of the 

audiograms contain notations indicating that appellant has bilateral middle and high frequency 

hearing loss. 

By decision dated August 28, 2017, OWCP denied appellant’s claim for work-related 

binaural hearing loss, finding that he had not established that the claimed injury and/or event(s) 

occurred, as alleged. It noted that he had not provided a clear description of the events or specific 

factors supporting that an injury occurred at work and therefore failed to establish the factual 

component of fact of injury. OWCP noted that appellant had not responded to its June 28, 2017 

development letter. 

 

3 Appellant also indicated that, while working on towboats, shop barges, and derricks around late 2005 to early 

2006, he experienced ringing, hissing, and buzzing noises in his ears. He reported that these symptoms worsened and 

that he now had hearing loss with accompanying loud ringing noise in his ears. 

4 OWCP specifically requested appellant to, “List your employment history by [employing establishment,] job title, 

and inclusive dates. Include all employment (federal and nonfederal) as well as military service. For each job title, 

describe source(s) of noise, number of hours of exposure per day, and use of any safety devices to protect against 

noise exposure. State when and what type of safety devices were provided.”

5 Most of the audiograms were obtained in the offices of a private provider named “Corporate Services.”
3

On July 27, 2018 appellant, through counsel, requested reconsideration of his claim and 

submitted additional evidence. A federal occupational health form entitled, “Audiogram 

History/Report,” was signed by a “nurse/technician” on January 23, 2017. In the section for 

current occupational noise, it was noted that appellant was exposed to steady noise from machinery

for four days per week (8 to 10 hours per day) and intermittent noise from engines, air compressors, 

and generators for four days per week. The document indicated that he was also exposed to 

impulse noise from air arc machines and vibratory hammers for varying amounts of time and it 

was noted that he always used hearing protection at work.

6

 Counsel also attached July 5, 2016 and 

January 17, 2018 audiograms, produced by an audiologist, which showed binaural hearing loss. 

By decision dated August 10, 2018, OWCP denied appellant’s request for reconsideration 

of the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence submitted was 

irrelevant or immaterial to the reason for the denial of his hearing loss claim, i.e., his failure to 

provide a complete history of all employment and exposure to noise.

LEGAL PRECEDENT

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

to review an award for or against compensation. OWCP may review an award for or against 

payment of compensation at any time based on its own motion or on application.7 

A claimant seeking reconsideration of a final decision must present arguments or provide 

evidence that: (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.8 If OWCP determines 

that, at least one of these requirements is met, it reopens and reviews the case on its merits.9 If the 

request is timely, but fails to meet at least one of the requirements for reconsideration, it will deny 

the request for reconsideration without reopening the case for review on the merits.10 To be timely, 

a request for reconsideration must be received by OWCP within one year of the date of OWCP’s

decision for which review is sought.11 The Board has held that the submission of evidence or 

argument which does not address the particular issue involved does not constitute a basis for 

reopening a case.12

 

6

In the section for current nonoccupational noise, the form indicated that appellant was exposed to noise from 

power tools and lawn equipment for two hours per month, and that hearing protection was always used.

7 5 U.S.C. § 8128(a).

8 20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 08-

1569 (issued December 9, 2008).

9

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

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

11 Id. at § 10.607(a).

12 M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224-25 (1979).
4

ANALYSIS

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

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

On July 27, 2018 appellant filed a timely request for reconsideration of OWCP’s 

August 28, 2017 denial decision,

13 but he did not show that OWCP erroneously applied or 

interpreted a specific point of law, or advance a relevant legal argument not previously considered 

by OWCP. 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

However, the Board finds that appellant submitted relevant and pertinent new evidence not 

previously considered by OWCP, which entitles him to review of the merits of his claim based on 

the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).15 

In support of his timely request for reconsideration, appellant submitted an “Audiogram 

History/Report” which was signed by a nurse/technician on January 23, 2017. In the section for 

current occupational noise, it was noted that: he was exposed to steady noise from machinery for 

four days per week (8 to 10 hours per day); intermittent noise from engines, air compressors, and 

generators for four days per week; and impulse noise from air arc machines and vibratory hammers 

for varying amounts of time. The form indicated that appellant always used hearing protection 

while at work. In the section for current nonoccupational noise, the form indicated that he was 

exposed to noise from power tools and lawn equipment for two hours per month, and that hearing 

protection was always used. 

The Board finds that this document constitutes pertinent new and relevant evidence 

because it specifically addresses the underlying issue of this case, i.e., whether appellant has

submitted sufficient evidence to establish the factual component of fact of injury with respect to 

his claim for an employment-related hearing loss. By decision dated August 28, 2017, OWCP 

denied his claim because he failed to adequately respond to its request for a history of employment 

and exposure to hazardous noise with details about the types and number of hours of noise

exposure per day. The January 23, 2017 Audiogram History/Report submitted by appellant in 

connection with his timely request for reconsideration provides factual information which is 

directly relevant to this matter.16 

Thus OWCP’s denial of appellant’s request for review of the merits of his claim pursuant 

to 5 U.S.C. § 8128(a) constituted an abuse of discretion.17 Consequently, the case must be 

 

13 See supra note 11.

14 See supra note 8.

15 Id.

16 Appellant also submitted July 5, 2016 and January 17, 2018 audiograms, which had been administered by an 

audiologist. The submission of this audiometric examination evidence, in and of itself, would not require reopening 

of appellant’s claim for review on the merits because such evidence is not relevant to the above-noted underlying 

factual issue. See supra note 12. 

17 M.P., Docket No. 17-1199 (issued March 1, 2018).
5

remanded for OWCP to conduct a merit review of the claim.18 Following this and such other 

development as deemed necessary, OWCP shall issue an appropriate merit decision.

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the August 10, 2018 decision of the Office of 

Workers’ Compensation Programs is reversed, and the case is remanded to OWCP for further 

action consistent with this decision.

Issued: June 24, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy 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

 

18 Id.