United States Department of Labor

Employees’ Compensation Appeals Board

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M.S., Appellant

and

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer

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Docket No. 19-0733

Issued: June 8, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On February 13, 2019 appellant filed a timely appeal from a November 28, 2018 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate 

Boards docketed the appeal as No. 19-0733.

On August 1, 2013 appellant, then a 56-year-old package router, filed an occupational 

disease claim (Form CA-2) alleging a loss of hearing causally related to factors of his federal 

employment, including making deliveries to ships. By decision dated January 17, 2014, OWCP 

accepted that appellant sustained employment-related bilateral sensorineural hearing loss.

The Board has duly considered the matter and notes that the case is not in posture for a 

decision. By decision dated February 20, 2014, OWCP found that appellant had 18 percent 

binaural hearing loss. On August 27, 2018 appellant requested reconsideration of OWCP’s 

February 20, 2014 schedule award decision. He indicated that he still worked at the employing 

establishment and had increased hearing loss. Appellant submitted a November 10, 2017 report 

of Dr. Julie Gustafson, a Board-certified otolaryngologist, who determined based on a 

November 1, 2017 audiometric evaluation that he had an increased binaural hearing loss under the 

standards of the sixth edition of the American Medical Association, Guides to the Evaluation of 
2

Permanent Impairment.

1

 By decision dated November 28, 2018, OWCP denied appellant’s 

reconsideration request, finding that the request was untimely filed and failed to demonstrate clear 

evidence of error.

The Board has held that a claimant may request a schedule award or increased schedule 

award at any time based on evidence of a new exposure or medical evidence showing progression 

of an employment-related condition resulting in permanent impairment or increased impairment.2 

When a claimant has requested reconsideration, and has submitted new and relevant evidence with 

respect to a permanent impairment or an increased permanent impairment, then he or she will be 

entitled to a merit decision on the issue.

3

 

In the present case, appellant submitted a November 10, 2017 report of Dr. Gustafson after 

OWCP’s February 20, 2014 schedule award decision. This report addressed the pertinent issue of 

this case, i.e., whether appellant was entitled to additional schedule award compensation for 

hearing loss, as it contained an impairment rating that referenced the A.M.A., Guides. Although 

appellant submitted a letter and form in which he requested reconsideration, it is evident that he 

was not seeking reconsideration of the February 20, 2014 decision, but was seeking a schedule 

award based on new medical evidence. As noted above, where a claimant has requested 

reconsideration, and has submitted new and relevant evidence with respect to a permanent 

impairment or an increased permanent impairment, then he or she will be entitled to a merit 

decision on the issue.

4

The case will be remanded for OWCP to adjudicate this matter as a request for an increased 

schedule award. Following this and such other development as deemed necessary, OWCP shall 

issue an appropriate merit decision on appellant’s claim.

 

1 A.M.A., Guides (6th ed. 2009). 

2 R.D., Docket No. 18-0579 (September 14, 2018); D.S., Docket No. 17-0407 (issued May 24, 2017).

3 See C.W., Docket No. 18-1110 (issued December 28, 2018); Linda T. Brown, 51 ECAB 115 (1999); Paul R. 

Reedy, 45 ECAB 488 (1994); see also B.K., 59 ECAB 228 (2007) (where it was evident that the claimant was seeking 

a schedule award based on new and current medical evidence, OWCP should have issued a merit decision on the 

schedule award claim rather than adjudicate an application for reconsideration). 

4

Id.
3

IT IS HEREBY ORDERED THAT the November 28, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further 

proceedings consistent with this order of the Board.

Issued: June 8, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees' Compensation Appeals Board

Janice B. Askin, Judge

Employees' Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees' Compensation Appeals Board