United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.K., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

MATERIEL COMMAND, ROBINS AIR FORCE

BASE, GA, Employer

__________________________________________

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Docket No. 18-1445

Issued: August 3, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On July 19, 2018 appellant filed a timely appeal from a February 9, 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 her burden of proof to establish vertigo, hearing 

loss, and tinnitus in the performance of duty as alleged.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances of the case 

as set forth in the Board’s prior order are incorporated herein by reference. The relevant facts are 

as follows.

On April 29, 1999 appellant, then a 19-year-old material handler, filed a traumatic injury 

claim (Form CA-1) alleging that on April 28, 1999 she sustained an injury when a piece of metal 

broke off the gears of a door and hit her head while she was in the performance of duty. She 

described her claimed injury as a “top of my head cut” and advised that the injury required seven 

stitches. Appellant did not stop work.3 In an April 28, 1999 report, Dr. Thomas Beach, a Boardcertified family practitioner and employing establishment physician, indicated that appellant 

reported that a piece of metal from a door fell 30 feet onto the top of her head that same day.

By decision dated October 21, 1999, OWCP found that appellant had established the 

occurrence of the April 28, 1999 employment incident, as alleged. However, it further found that 

the medical evidence of record was insufficient to establish a diagnosis in connection with the

accepted April 28, 1999 employment incident.

On March 27, 2003 appellant filed a notice of recurrence (Form CA-2a) for medical 

treatment and time lost due to disability from work. She advised that the date of the claimed 

recurrence was September 10, 2002. Appellant noted that she had returned to her attending 

physician several times for treatment of headaches and indicated that, on September 10, 2002, she 

was working in very hot conditions and had to go home immediately after she bent over to remove 

her boots and could not stand erect.

4

By decision dated July 14, 2005, OWCP denied appellant’s recurrence claim, noting that 

there could be no recurrence of her denied claim.

On January 16, 2013 appellant filed an occupational disease claim (Form CA-2) alleging 

that she sustained employment-related vertigo, hearing loss, and tinnitus.

5

 OWCP assigned the 

 

2 Order Remanding Case, Docket No. 13-1775 (issued May 22, 2014).

3 OWCP assigned the claim OWCP File No. xxxxxx820.

4 OWCP created a new claim file assigned OWCP File No. xxxxxx741. By decision dated March 30, 2004, it

denied appellant’s claim in OWCP File No. xxxxxx741, finding that she had not submitted sufficient evidence to 

establish her claim as she had not responded to a request for additional evidence. On April 12, 2004 appellant, through 

her then counsel, requested a hearing before a representative of OWCP’s Branch of Hearings and Review. A hearing 

was held on January 25, 2004. By decision dated June 22, 2005, OWCP’s hearing representative set aside the 

March 30, 2004 decision and remanded the case to OWCP for further development. She noted that appellant was 

claiming that her current condition was due to an April 28, 1999 employment injury which had been denied and 

indicated that, therefore, OWCP had erred in creating a new claim file under OWCP File No. xxxxxx741. The hearing 

representative directed OWCP to delete OWCP File No. xxxxxx741 as a separate claim file and to combine the 

contents of OWCP File Nos. xxxxxx741 and xxxxxx820 under the latter file number. She noted that, after combining 

the contents of the files, OWCP should issue a denial of appellant’s recurrence claim because her earlier claim for an

April 28, 1999 injury had not been accepted.

5 Appellant was working as an inventory management specialist when she filed the Form CA-2.
3

claim OWCP File No. xxxxxx795. Appellant asserted that these conditions had progressed slowly 

after she sustained a head injury due to an accident at work on April 28, 1999. She maintained 

that the accident broke her inner ear bones and caused her to suffer a loss of hearing and associated 

problems. Appellant identified November 11, 2002 as the date she first became aware of her 

condition and first realized its relation to her federal employment. She did not stop work.

Appellant submitted several notification of personnel action forms (Form SF-50) which 

detailed personnel actions related to positions she held with the employing establishment since the 

late-1990s, including the positions of materials handler, equipment cleaner, and inventory 

management specialist. She submitted a job description for the equipment cleaner position which 

noted that the position required using machines, such as sanders and high-pressure spraying units, 

to clean aircraft parts.

In a February 1, 2013 development letter, OWCP advised appellant that the documentation 

received to date had been reviewed and was deemed insufficient to support her claim because it 

was “not sufficient to support that you provided timely notification of your work injury,” was “not 

sufficient to establish that you actually experienced the employment factor(s) alleged to have 

caused injury,” and was “not sufficient to support that you were injured while performing any duty 

of your employment.” It requested that she complete and return an enclosed development 

questionnaire within 30 days. The questionnaire requested that appellant list her employment 

history by employer, job title, and inclusive dates, including all employment (federal and nonfederal) as well as military service. Appellant was asked, for each job title, to describe the sources

of noise, number of hours of exposure per day, and use of any safety devices to protect against 

noise exposure. OWCP also asked her to describe all previous hearing problems and to submit 

copies of medical reports and audiograms concerning her hearing. It afforded appellant 30 days 

to respond.

In a separate letter of even date, OWCP asked the employing establishment to provide 

comments from a knowledgeable supervisor on the accuracy of all statements provided by 

appellant regarding her claim. It requested that the employing establishment provide detailed 

information regarding appellant’s exposure to hazardous noise in the workplace, including the 

locations of worksite noise exposure, sources of exposure, number of hours of exposure per day, 

decibel levels/frequencies of exposure, and use of any safety devices to protect against exposure. 

OWCP also requested that the employing establishment provide copies of medical examinations 

pertaining to appellant’s hearing or ear problems. It afforded the employing establishment 30 days 

to respond.

On February 11, 2013 appellant responded to OWCP’s development letter, asserting that 

she had reported her April 28, 1999 injury twice in 1999 as well as in 2002, 2006, 2009, 2011, 

2012, and 2013. She noted that the April 28, 1999 injury “caused my loss of hearing/ear 

problems.” Appellant submitted a record of injury/illness and treatment dated April 29, 1999 in 

which a medical officer with an illegible signature noted that, on the previous day, a part of a door 

had broken off and a piece of metal fell, hitting appellant on the head. She also submitted 

employment records (supplemented by her handwritten annotations) showing that she worked in 

various positions for the employing establishment, including working as a materials handler from 

August 1998 to October 1999 where she operated forklifts in a warehouse, as a sheet metal 

mechanic from October 2000 to March 2002 and November 2002 to September 2003 where she 
4

worked in a “very loud” environment wearing only sponge earplugs, as an equipment cleaner from 

March to November 2002 where she operated an “aqua mister,” and as a supply clerk/technician 

from September 2003 to September 2005 and July 2007 to August 2009 where she worked in an 

airplane hangar wearing earplugs only part of the time. 

Appellant submitted a November 22, 2002 report from Dr. Subhi Sulieman, a Boardcertified internist, who indicated that appellant reported that she was injured in 1999 when a part 

of a gear box from a door fell and struck her in the head. Dr. Sulieman noted that appellant reported 

that she suffered a concussion and a broken bone in her inner ear due to this accident and that she 

consequently had extreme vertigo.

Appellant submitted the results of September 30, 2002 and May 28, 2003 audiograms

obtained from a private health care provider. She also submitted a June 17, 2003 report from

Dr. Christina Mayville, Board-certified in neurology, who noted that appellant related her vertigo 

and ear pain to a 1999 incident at work when a gear box from a door fell on her head.

In a letter dated April 8, 2013, the employing establishment controverted appellant’s claim, 

noting that she had attributed her conditions to her previously denied claim for an April 28, 1999 

injury. In an attached May 10, 2012 online mishap report, appellant advised that, on that date, her 

right arm went numb all the way to her fingers. She asserted that she had chronic nerve damage 

from a gearbox falling 30 feet onto her head. Appellant claimed that she had permanent vertigo 

and ringing in her ears.

By decision dated June 10, 2013, OWCP denied appellant’s occupational disease claim 

finding that it was untimely filed. It noted that she had not filed her claim within three years of 

the date of injury or demonstrated that her immediate supervisor had actual knowledge within 30 

days of the claimed date of injury, i.e., November 11, 2002.

On June 24, 2013 appellant requested reconsideration of OWCP’s June 10, 2013 decision. 

By decision dated July 3, 2013, OWCP denied appellant’s request for reconsideration of 

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

On July 22, 2013 appellant appealed OWCP’s June 10 and July 3, 2013 decisions to the 

Board. By order dated May 22, 2014,6the Board set aside OWCP’s June 10 and July 3, 2013 

decisions and remanded the case to OWCP for clarification, to administratively combine

appellant’s case records, and appropriate adjudication of the issues presented.

In an undated memorandum added to the case record on June 11, 2014, an OWCP claims 

examiner indicated that she had added relevant decisions from OWCP File No. xxxxxx820 to 

OWCP File No. xxxxxx795.

By decision dated October 22, 2014, OWCP denied appellant’s occupational disease claim

under OWCP File No. xxxxxx795, noting that she was claiming injury as a consequence of a 

 

6 Supra note 2.
5

claimed April 28, 1999 injury which had previously been denied. It indicated that there could be 

no consequential injury of a claim not accepted by OWCP.

In a letter dated October 22, 2014, OWCP informed appellant that she had not submitted 

sufficient evidence to establish that she actually experienced the employment factors alleged to 

have caused her January 16, 2013 claim for vertigo, hearing loss, and tinnitus. It requested that 

she respond to a questionnaire, which asked her to provide information regarding the employment 

factors alleged to have contributed to her claimed medical conditions. The questionnaire posed 

questions regarding whether appellant was still exposed to hazardous noise at work and whether 

she had hobbies which involved exposure to loud noise. Appellant was asked to identify the date 

she first noticed her hearing loss and the date she first related her hearing loss to work exposure

and to explain why she realized her hearing loss was related to work exposure. OWCP afforded 

her 30 days to respond, but she did not respond within the afforded period.

In a memorandum dated October 27, 2014, a claims examiner noted that OWCP File No. 

xxxxxx820 had been administratively combined with OWCP File No. xxxxxx795, with the latter 

file designated as the master file.

By decision dated December 18, 2014, OWCP again denied appellant’s claim, finding that 

she had not submitted sufficient factual evidence to establish her occupational disease claim for 

vertigo, hearing loss, and tinnitus. It noted that she had not responded to its development letter.

On January 22, 2015 appellant requested a review of the written record before a

representative of OWCP’s Branch of Hearings and Review.

By decision dated February 9, 2018, OWCP’s hearing representative affirmed the 

December 18, 2014 decision finding that appellant had not established the factual aspect of her 

claim for an employment-related occupational disease. 

LEGAL PRECEDENT

An employee seeking benefits under FECA7 has the burden of proof to establish 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 period of FECA, that 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.8 These are the essential 

elements of every compensation claim regardless of whether the claim is predicated upon a 

traumatic injury or an occupational disease.9

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

disease claim, a claimant must submit the following: (1) a factual statement identifying 

 

7 Supra note 1.

8 K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn 

Haggerty, 45 ECAB 383, 388 (1994).

9 K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).
6

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 identified employment factors.10

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.11 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.12 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and appellant’s 

specific employment factor(s).13

ANALYSIS

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

The Board finds that OWCP has not adequately developed appellant’s occupational disease 

claim for employment-related vertigo, hearing loss, and tinnitus. While the claimant has the burden

of proof to establish entitlement to compensation, OWCP shares responsibility in the development 

of the factual evidence, particularly when such evidence is of the character normally obtained from 

the employing establishment or other government source.14 

First, the Board notes that, despite OWCP’s failure to accept any employment factors when 

denying appellant’s occupational disease claim, appellant has established an employment factor in 

the form of the April 28, 1999 incident at work when a piece of metal from a door fell and hit the 

top of her head. The case record contains evidence establishing that appellant consistently described 

the details of the April 28, 1999 incident and expressed her belief that it contributed to her vertigo, 

hearing loss, and tinnitus, and furthermore, it is noted that OWCP has already accepted the April 28, 

1999 incident as factual in connection with OWCP File No. xxxxxx820.15 

 

10 R.G., Docket No. 19-0233 (issued July 16, 2019). 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).

11 W.M., Docket No. 14-1853 (issued May 13, 2020); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB

238 (1996).

12 M.V., Docket No. 18-0884 (issued December 28, 2018).

13 Id.; Victor J. Woodhams, supra note 10.

14 See M.H., Docket No. 19-0930 (issued June 17, 2020); L.L., Docket No. 12-0194 (issued June 5, 2012); N.S., 59 

ECAB 422 (2008).

15 Moreover, the case record contains a record of injury/illness and treatment dated April 29, 1999 in which a 

medical officer for the employing establishment noted that, on the previous day, a part of a door had broken off and a 

piece of metal fell, hitting appellant on the head. The Board notes that OWCP File No. xxxxxx820 (concerning 

appellant’s prior claim implicating the April 28, 1999 incident) has been administratively combined with OWCP File 

No. xxxxxx795 (under which the present occupational disease claim was originally filed).
7

In addition, the case record contains evidence which suggests additional sources for 

appellant’s vertigo, hearing loss, and tinnitus, including exposure to hazardous noise in the 

workplace. Appellant submitted employment records showing that she was employed in several 

jobs with the employing establishment between the late-1990s and late-2000s where she was 

exposed to hazardous noise. These employment records show that the jobs included working as a 

materials handler where appellant operated forklifts in a warehouse, as a sheet metal mechanic 

where she worked in a very loud environment wearing only sponge earplugs, as an equipment 

cleaner where she operated a cleaning machine, and as a supply clerk/technician where she worked 

in an airplane hangar wearing earplugs only part of the time.16 

The Board finds that, despite the above-noted evidence submitted by appellant, OWCP has 

not adequately developed the factual aspect of her occupational disease claim. OWCP denied 

appellant’s occupational disease claim on a factual basis without adequately considering the 

evidence she submitted and without making an adequate attempt to obtain additional information

concerning employment factors (particularly regarding noise exposure) from the employing 

establishment. OWCP requested that the employing establishment submit a detailed statement 

regarding whether appellant was exposed to hazardous noise in the workplace. However, OWCP 

did not receive a response from the employing establishment which fully complied with this 

request and the case record does not indicate that OWCP made any further attempts to obtain the 

requested information from the employing establishment.

For these reasons, the case shall be remanded to OWCP for the purpose of obtaining from 

the employment establishment a detailed statement regarding hazardous noise exposure in the 

workplace during the relevant periods which describes appellant’s job titles and inclusive dates.17 

For each job title, the employing establishment shall describe the sources/types of noise exposure, 

the length and periods of such exposure (including the number of hours of exposure per day/week), 

and the use of safety devices, if any, to protect against noise exposure.

18

 OWCP shall also afford 

appellant an opportunity to provide additional details regarding employment factors she believes 

contributed to the claimed occupational diseases of vertigo, hearing loss, and tinnitus.

After carrying out this development, OWCP shall issue a de novo decision regarding 

appellant’s occupational disease claim for employment-related vertigo, hearing loss, and tinnitus.

CONCLUSION

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

 

16 Appellant also submitted copies of September 30, 2002 and May 28, 2003 audiograms.

17 See supra note 16. See also G.I., Docket No. 19-0942 (issued February 4, 2020), R.A., Docket No. 17-1030 

(issued April 16, 2018).

18 The Board notes that OWCP regulations and the FECA procedure manual provide that, in the absence of a reply 

from the employing establishment, OWCP may accept the allegation of a claimant as factual -- if the claimant’s 

statement is sufficiently clear and detailed as to matters of which he or she is knowledgeable. See 20 C.F.R.

§ 10.117(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.10(a) 

(June 2011). See also J.C., Docket No. 15-1517 (issued February 25, 2016).
8

ORDER

IT IS HEREBY ORDERED THAT the February 9, 2018 decision of the Office of 

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

proceedings consistent with this decision of the Board.

Issued: August 3, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board