United States Department of Labor

Employees’ Compensation Appeals Board

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T.P., Appellant

and

DEPARTMENT OF THE ARMY, DENTAL 

COMMAND, JOINT BASE LEWIS-MCCHORD, 

Tacoma, WA, Employer

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Docket No. 19-0437

Issued: July 2, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

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 December 20, 2018 appellant filed a timely appeal from a June 27, 2018 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has 

elapsed from OWCP’s last merit decision, dated March 27, 2018, to the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 

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

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).

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On September 20, 2017 appellant, then a 48-year-old dental assistant, filed an occupational 

disease claim (Form CA-2) alleging that exposure to hazardous noise, while in the performance of 

duty, had worsened his preexisting binaural hearing loss.

In a report dated April 28, 2017 and finalized May 3, 2017, Dr. Jackson R. Holland, a 

Board-certified otolaryngologist, noted appellant’s 20-year history of binaural hearing loss with 

tinnitus. He noted that appellant had worn binaural hearing aids since 2009, which were awarded 

in a state workers’ compensation claim.2 Dr. Holland described appellant’s occupational noise 

exposure to dental hand pieces and suction devices while a dental assistant in military service from 

1988 to 1992, in private practice from 2000 to 2014, and commencing in 2015 at the employing 

establishment. Appellant had also worked as a roofer from 1993 through 1999, and had been 

exposed to noise from staple guns, air compressors, hydraulic lifts, and industrial production 

equipment. Dr. Holland diagnosed “bilateral neurosensory” hearing loss, bilateral noise-induced 

hearing loss, and tinnitus. He opined that the pattern of progressive hearing impairment 

demonstrated by audiometric test results from September 1996 through April 24, 2017 was a 

neurodegenerative, genetically-based process unrelated to occupational noise exposure. 

Dr. Holland noted that improvements in dental equipment had reduced the decibel volume of 

apparatus output.

By development letter dated October 12, 2017, OWCP informed appellant that the 

evidence submitted was insufficient to establish his claim. It advised him of the type of factual 

and medical evidence needed and provided a questionnaire for his completion. OWCP afforded 

appellant 30 days to provide the necessary information.

In response, appellant submitted an October 31, 2017 statement in which he noted a state 

workers’ compensation agency had previously found his hearing loss to be age related.

The employing establishment controverted the claim in a November 9, 2017 statement, 

contending that appellant’s federal duties since he commenced employment on November 30, 

2015 had not exposed him to hazardous noise. Appellant’s position did not require hearing 

protection nor his participation in annual audiometric testing.

A July 2016 industrial hygiene survey of Dental Clinic Two found intermittent noise from 

64 to 93 decibels in the prosthetics laboratory from polishing, sanding, and grinding equipment. 

The employing establishment provided foam earplugs, which reduced exposure to less than 85.

On February 15, 2018 OWCP obtained a second opinion regarding the etiology and 

severity of appellant’s hearing loss from Dr. Julie Gustafson, a Board-certified otolaryngologist.

Dr. Gustafson reviewed the medical record and a statement of accepted facts. She noted clinical 

findings and obtained audiometric test results. Dr. Gustafson diagnosed sensorineural hearing loss 

 

2

It is well established that decisions of other federal agencies or governmental bodies are not dispositive to issues 

raised under FECA. Decisions made by such tribunals are pursuant to different statutes, which have varying standards 

for establishing eligibility for benefits. P.S., Docket No. 18-1789 (issued April 11, 2019); J.D., Docket No. 18-0101 

(issued August 27, 2018); J.F., 59 ECAB 331 (2008); Ernest J. Malagrida, 51 ECAB 287 (2000).
3

of unknown or genetic etiology, tinnitus, and a history of noise-induced hearing loss. She opined 

that appellant’s noise exposure at the employing establishment’s dental clinic was not of sufficient 

level or intensity to have caused or contributed to noise-induced hearing loss. Also, audiometric 

evaluations had not demonstrated a significant progression as would be expected with noiseinduced hearing loss.

By decision dated March 27, 2018, OWCP denied appellant’s claim, finding that causal 

relationship had not been established. It accorded Dr. Gustafson’s opinion the weight of the 

medical evidence.

On April 30, 2018 appellant requested reconsideration, contending that occupational noise 

exposures had worsened preexisting hearing loss. He submitted audiograms dated September 24, 

1998, June 15, 2009, March 25, 2016, April 24, 2017, and February 15, 2018.

By decision dated June 27, 2018, OWCP denied appellant’s request for reconsideration of 

the merits of his claim.

LEGAL PRECEDENT

Under section 8128(a) of FECA,3 OWCP may reopen a case for review on the merits in 

accordance with the guidelines set forth in section 10.606(b)(3) of the implementing federal 

regulations, which provide that a claimant may obtain review of the merits if the written application

for reconsideration, including all supporting documents, sets forth arguments and contains 

evidence which: 

“(i) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or 

“(ii) Advances a relevant legal argument not previously considered by OWCP; or 

“(iii) Constitutes relevant and pertinent new evidence not previously considered by 

OWCP.”

4

Section 10.608(b) provides that any application for review of the merits of the claim which 

does not meet at least one of the requirements listed in section 10.606(b), will be denied by OWCP 

without review of the merits of the claim.5

 

3

Id. at § 8128(a).

4 20 C.F.R. § 10.606(b).

5

Id. at § 10.608.
4

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). 

Appellant’s timely request for reconsideration 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 by OWCP. Consequently, he was not entitled to a review of the merits 

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

The audiometric test reports submitted on reconsideration are irrelevant to the underlying

merit issue of whether appellant established exposure to hazardous noise while in the performance 

of duty. The submission of evidence or argument which does not address the particular issue 

involved does not constitute a basis for reopening a case.6 Consequently, appellant was not entitled 

to a review of the merits based on the third above-noted requirement under 20 C.F.R. 

§ 10.606(b)(3).

The Board thus finds that 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 pertinent new and relevant evidence not previously considered. As appellant 

did not meet any of the necessary regulatory requirements, he is not entitled to further merit review. 

Therefore, OWCP properly denied appellant’s request for reconsideration of the merits of his claim 

pursuant to 5 U.S.C. § 8128(a).

On appeal appellant contends that exposure to hazardous noise during the performance of 

his federal duties had caused hearing loss and tinnitus. However, this argument pertains to the 

merits of the claim, which are not before the Board on the present appeal.

CONCLUSION

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

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

 

6 M.B., Docket No. 17-1980 (issued May 14, 2019); see E.G., Docket No. 18-0270 (issued August 24, 2018); 

Eugene F. Butler, 36 ECAB 393, 398 (1984).
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ORDER

IT IS HEREBY ORDERED THAT the June 27, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 2, 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