United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.G., Appellant

and

DEPARTMENT OF THE NAVY, FLEET 

READINESS CENTER SOUTHEAST, 

Jacksonville, FL, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 20-1419

Issued: September 16, 2021

Appearances: Case Submitted on the Record

Lisa Varughese, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 13, 2020 appellant, through counsel, filed a timely appeal from a January 27, 2020 

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

days has elapsed from the last merit decision, dated January 28, 2019, 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 to review the merits of this claim. 

 

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 13, 2017 appellant, then a 55-year-old supervisor safety and occupational health 

specialist, filed an occupational disease claim (Form CA-2) alleging that he developed hearing loss 

due to factors of his federal employment including exposure to noise from pneumatic tools, 

handling units, compressors, and aircraft engines for 10 years as an environmental engineer. He 

noted that he first became aware of his hearing loss on June 1, 2012 and first realized its relation 

to his federal employment on December 5, 2016.

In a report dated December 5, 2016, Dawn Dion, an audiologist, examined appellant for 

complaints of bilateral hearing loss, worse on the left, noticed over the course of two years. She 

noted that he was exposed to noise in his occupational environment at the employing 

establishment. On audiological examination, Ms. Dion observed sensorineural hearing loss above 

750 Hertz (Hz) on the right, mild from 1,000 to 6,000 Hz and steeply sloping to moderately severe 

for 8,000 Hz. On the left, she observed sensorineural hearing loss above 500 Hz, mild progressing 

to moderate for 1,000 to 2,000 Hz, rising to mild for 3,000 Hz, and progressing to moderate for 

4,000 to 8,000 Hz. Ms. Dion diagnosed bilateral sensorineural hearing loss.

Appellant submitted the results of audiologic testing taken on December 5, 2016. He also 

submitted his employment history and a statement outlining his history of noise exposure.

In a report dated March 14, 2017, Dr. Jeffrey Sandler, a Board-certified otolaryngologist, 

examined appellant for complaints of left-sided hearing loss and reviewed a magnetic resonance 

imaging (MRI) scan of his brain. He noted slight asymmetry of hearing with the left side having 

poorer discrimination according to audiogram. The MRI scan demonstrated no lesions and clear 

sinuses and mastoids, and thus no source of the hearing loss as demonstrated by MRI scan. 

Dr. Sandler diagnosed bilateral sensorineural hearing loss.

In an audiometric examination dated December 18, 2014, Dr. Laura Stephenson, an 

audiologist, recorded audiometric findings at the frequency levels of 500, 1,000, 2,000, and 3,000 

Hz of losses for the right ear of 10, 15, 35, and 25 decibels (dBs) and for the left ear of 10, 35, 40, 

and 30 dBs, respectively. She noted that the reason for conducting the audiogram was to obtain 

an established reference prior to initial duty in hazardous noise areas. In a follow-up report dated 

July 20, 2017, Dr. Stephenson noted that appellant was not enrolled in a hearing conservation 

program at the employing establishment, had taken only one hearing test that appeared in the 

occupational medical record, and that a hearing test taken on that date revealed hearing thresholds 

identical to the prior findings. 

In a development letter dated October 4, 2017, OWCP informed appellant of the 

deficiencies of his claim. It requested that he submit additional medical evidence establishing that 

his medical condition was causally related to factors of his federal employment. Appellant was 
3

also provided a questionnaire for his completion. OWCP afforded him 30 days to submit the 

necessary evidence. 

In a letter dated October 16, 2017, appellant indicated that he was not enrolled in the 

employing establishment’s hearing conservation program and that thus, he did not undergo a 

baseline hearing evaluation or receive annual hearing tests. He indicated that in his role managing 

hazardous waste and environmental compliance programs he was constantly exposed to hazardous 

noise at the employing establishment from pneumatic tools, air handling units and compressors. 

OWCP referred the case record to Dr. Stephen Maturo, a Board-certified otolaryngologist 

serving as an OWCP district medical adviser (DMA), in order to determine whether the 

December 18, 2014 reference audiogram indicated sensorineural/noise-induced hearing loss. In a 

report dated November 9, 2017, the DMA stated that there was no accepted medical condition 

noted, and that without a medical history or history of noise exposure, one could not comment on 

the etiology of appellant’s sensorineural hearing loss.

OWCP then referred appellant, along with a statement of accepted facts (SOAF) and the 

case record, to Dr. Robert M. Loper, a Board-certified otolaryngologist, for a second opinion 

examination. The SOAF outlined appellant’s work-related noise exposure in jobs he had held 

from 1986 through the present. In an undated report, Dr. Loper related that audiometric testing

performed on December 12, 2017 at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz which

indicated frequency losses of 15, 25, 40, and 30 dBs on the right and 20, 45, 45, and 30 dBs on the 

left, respectively. He completed an outline for otologic evaluation and noted that current findings 

demonstrated mild-to-moderate bilateral hearing loss in excess of presbycusis. Dr. Loper opined 

that appellant’s sensorineural hearing loss was not due to noise exposure encountered in 

appellant’s federal civilian employment, explaining that the configuration of audiometric results 

was not consistent with noise-induced hearing loss and that the hearing loss could not be attributed 

to noise exposure due to the short duration of such exposure. He recommended hearing 

conservation and the continued use of hearing aids.

By decision dated December 19, 2017, OWCP denied appellant’s claim, finding that the 

medical evidence of record was insufficient to establish causal relationship between his diagnosed 

hearing loss and his work-related noise exposure. It accorded the weight of the medical evidence 

to the report of Dr. Loper.

On December 18, 2018 appellant, through counsel, requested reconsideration of OWCP’s 

December 19, 2017 decision. With his request, appellant submitted records from the employing 

establishment regarding industrial hygiene, historical noise dosimetry, individual hazard 

assessments for various positions, and a noise survey. He also submitted a statement regarding his 

hearing loss, a narrative of exposure, employment history, and details of his noise hazard exposure 

at the employing establishment.

In a letter dated December 17, 2018, Dr. Sandler reviewed appellant’s history of 

employment and noise exposure. He stated that appellant was exposed to hazardous noise levels 

in his federal employment. Dr. Sandler opined that appellant’s hearing loss far exceeded that 

which would be expected from presbycusis and that his audiograms taken in December 2014 and 

2018 were consistent. 
4

By decision dated January 28, 2019, OWCP denied modification of the December 19, 2017 

decision. It again found that Dr. Loper’s report of December 12, 2017 represented the weight of 

the medical evidence.

On January 21, 2020 appellant, through counsel, requested reconsideration of OWCP’s 

January 28, 2019 decision. Counsel argued that appellant had submitted sufficient evidence to 

establish the elements of his claim for hearing loss. She further argued that Dr. Sandler’s 

December 17, 2018 letter contained sufficient medical reasoning to establish causal relationship 

between appellant’s history of occupational noise exposure and his diagnosed hearing loss, and 

that Dr. Loper’s report was not well rationalized. With the request, appellant resubmitted the 

December 18, 2014 audiogram results, the December 5, 2016 audiogram and report from

Ms. Dion, and the March 14, 2017 report and the December 17, 2018 letter from Dr. Sandler. He

also submitted general information from the Occupational Safety and Health Administration 

(OSHA) regarding noise exposure.

By decision dated January 27, 2020, OWCP denied appellant’s request for reconsideration 

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

LEGAL PRECEDENT

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

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against compensation at any time on his own motion or on application.3

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or argument which: (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.4

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.6 If the request is timely, but fails to meet at least one of the 

 

3

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April30, 2020); L.D., Docket No. 18-1468 (issued 

February 11, 2019); W.C., 59 ECAB 372 (2008).

4

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket 

No. 08-1569 (issued December 9, 2008).

5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. 

For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP 

within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 --Claims, 

Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the 

request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation 

System (iFECS). See Chapter 2.1602.4b.

6

Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).
5

requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.7

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).

On reconsideration counsel asserted that appellant had submitted sufficient evidence to 

establish the elements of his claim for hearing loss. She argued that Dr. Sandler’s December 17, 

2018 letter contained sufficient medical reasoning to establish a causal relationship between 

appellant’s history of occupational noise exposure and his diagnosed hearing loss and that

Dr. Loper’s report was not well rationalized. As Dr. Sandler’s report was previously considered 

by OWCP, counsel’s argument is insufficient to warrant merit review of appellant’s claim. 

Consequently, the Board finds that appellant is not entitled to a 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).8

Furthermore, appellant did not provide any relevant and pertinent new evidence not 

previously considered. The underlying issue in this case is whether he has established hearing loss 

causally related to the accepted factors of his federal employment. Causal relationship is a medical 

issue that must be addressed by relevant medical evidence.9 While the general information from 

the website of OSHA regarding noise exposure was new, it was not relevant because it was not 

from a physician and did not address appellant’s specific noise exposure as related to its causal 

relationship to his diagnosed hearing loss. The Board has held that the submission of evidence or 

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

reopening a case.10 Appellant also resubmitted: the December 17, 2018 letter from Dr. Sandler, 

as well as the December 18, 2014 audiogram results; the December 5, 2016 audiogram and report 

from audiologist Ms. Dion; and the March 14, 2017 report from Dr. Sandler. Providing additional 

evidence that either duplicates or is substantially similar to evidence already of record does not 

constitute a basis for reopening a case.11 As appellant did not provide relevant and pertinent new 

evidence not previously considered by OWCP, he is not entitled to a merit review based on the 

third requirement under 20 C.F.R. § 10.606(b)(3).12

 

7

Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued 

March 18, 2010).

8

Supra note 4.

9 E.J., Docket No. 20-0841 (issued February 12, 2021); A.G., Docket No. 20-0290 (issued June 24, 2020).

10 See J.R., Docket No. 19-1280 (issued December 4, 2019); M.K., Docket No. 18-1623 (issued April10, 2019); 

L.D., Docket No. 18-1468 (issued February 11, 2019); Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

11 Id. See also G.J., Docket No. 20-0071 (issued July 1, 2020); V.Q., Docket No. 19-1309 (issued January 3, 2020); 

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

12 See E.J., supra note 9; T.W., Docket No. 18-0821 (issued January 13, 2020).
6

The Board, accordingly, finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 13

CONCLUSION

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).

ORDER

IT IS HEREBY ORDERED THAT the January 27, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 16, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

13 See J.B., Docket No. 20-0145 (issued September 8, 2020); D.G., Docket No. 19-1348 (issued December 2, 2019).