United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.J., Appellant

and

DEPARTMENT OF JUSTICE, DRUG 

ENFORCEMENT ADMINISTRATION, 

Tacoma, WA, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 20-0841

Issued: February 12, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 March 6, 2020 appellant, through counsel, filed a timely appeal from a February 4, 

2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most 

recent merit decision was a Board decision dated November 5, 2019, which became final after 30 

 

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

days of issuance and is not subject to further review.2 As there is no merit decision by OWCP 

issued within 180 days of the filing of this appeal, pursuant to the Federal Employees’

Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction 

over the merits of this 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).

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

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

follows.

On June 8, 2017 appellant, then a 46-year-old criminal investigator and firearms instructor, 

filed a traumatic injury claim (Form CA-1) alleging that hazardous noise during employmentrelated firearms training on May 26, 2017 caused constant ringing in his left ear that had not abated 

after seven days. 

Appellant submitted medical evidence. In a June 29, 2017 report, Dr. Mario G. Alinea, an 

attending Board-certified family practitioner, noted appellant’s complaints of left-sided hearing 

loss and tinnitus after exposure to firearms noise on a shooting range. He obtained an audiogram 

on June 29, 2017. At the frequency levels of 500, 1,000, 2,000, and 3,000 Hertz (Hz) in the right 

ear, appellant exhibited decibel (dB) losses of 10, 15, 10, and 20, respectively. Testing at the same 

frequency levels for the left ear revealed dB losses of 20, 30, 20, and 40, respectively. 

Tympanometry was within normal limits bilaterally. Dr. Alinea diagnosed left-sided sensorineural 

hearing loss with tinnitus. He explained that, based on appellant’s history and clinical findings, 

he was “unclear if this hearing loss [was] attributable to firearms noise exposure on a more 

probable than not basis.” Dr. Alinea remarked that, as most occupational noise exposures were 

symmetric, hearing loss was typically bilateral.

In a June 29, 2017 form report, Dr. Alinea diagnosed tinnitus and sensorineural hearing 

loss. He checked a box marked “Yes,” indicating his support for a causal relationship between the 

diagnosed conditions and exposure to firearms noise at work. Dr. Alinea also completed a duty 

status report (Form CA-17) on June 29, 2017 in which he checked a box marked “Yes” in support 

of causal relationship.

By decision dated July 27, 2017, OWCP accepted that appellant’s participation in the 

May 26, 2017 firearms practice occurred as alleged, but denied the claim, finding that the medical 

 

2 20 C.F.R. § 501.6(d); see S.M., Docket No. 19-1961 (issued January 28, 2021); P.S., Docket No. 18-0718 (issued 

October 26, 2018); T.B., Docket No. 15-0001 (issued July 1, 2015); C.M., Docket No. 15-0471 (issued April 27, 

2015).

3 5 U.S.C. § 8101 et seq. 

4 Docket No. 19-0952 (issued November 5, 2019); Docket No. 17-1755 (issued March 9, 2018).
3

evidence of record did not provide medical rationale in support of causal relationship between the 

diagnosed sensorineural hearing loss condition and the accepted May 26, 2017 employment 

incident. Appellant then appealed to the Board.5

By decision issued March 9, 2018,6the Board affirmed OWCP’s July 27, 2017 decision, 

finding that appellant did not meet his burden of proof to establish that his left-sided hearing loss 

and tinnitus were causally related to the accepted May 26, 2017 employment incident.

On August 7, 2018 appellant, through counsel, requested a telephonic hearing of OWCP’s 

July 27, 2017 decision before a representative of OWCP’s Branch of Hearings and Review. 

By decision dated August 14, 2018, an OWCP hearing representative denied appellant’s 

request for a telephonic hearing. She indicated to counsel that the final decision on the issue was 

the Board’s March 9, 2018 decision, and that OWCP’s Branch of Hearing and Review did not 

have jurisdiction to review final decisions of the Board. As such, appellant was not entitled to a 

hearing as a matter of right. OWCP’s hearing representative exercised her discretion and further 

denied the hearing request for the reason that the issue in the case could equally well be addressed 

by requesting reconsideration and submitting new evidence establishing an employment-related 

injury.

On March 6, 2019 appellant, through counsel, requested reconsideration and submitted 

additional evidence.

In a February 22, 2019 report, Dr. John J. Simmer, a Board-certified otolaryngologist, 

noted the accepted May 26, 2017 employment incident and subsequent treatment. He related 

appellant’s complaints of constant left-sided tinnitus interfering with sleep. Dr. Simmer reviewed 

an audiogram obtained by Stefanie M. Allan, an audiologist, which demonstrated a mild or 

borderline hearing loss in the left ear at frequencies greater than 2,000 Hz, and a borderline hearing 

loss on the right at 3,000 Hz and from 6,000 to 8,000 Hz. He diagnosed sensorineural hearing loss 

of the left ear with interval improvement since 2017, restricted hearing in the right ear, and tinnitus 

of the left ear. Dr. Simmer opined that loud noise exposure was a recognized cause of 

sensorineural hearing loss and tinnitus, which could occur as an acute event “with exposure to 

extreme loud noise or can be gradual with frequent, regular exposure to loud noise.” He further 

noted that the temporal relationship of onset of appellant’s symptoms to presence on the firing 

range would suggest loud noise exposure as the source of appellant’s condition. 

In a February 25, 2019 report, Dr. Nancy A. Becker, an osteopathic physician Boardcertified in otolaryngology, noted appellant’s account of a 2004 employment incident in which he 

was exposed to firearms noise and lost hearing in his left ear for one month. Appellant had a 

second episode in May 2017 when the employing establishment changed to a short barrel assault 

 

5 During the pendency of the prior appeal, appellant submitted a July 17, 2017 report by Dr. Sepehr Oliaei, a Boardcertified otolaryngologist. Dr. Oliaei noted a history of gradual onset of bilateral hearing loss, and that appellant had 

constant exposure to loud noise in his work as a firearms instructor. He obtained an audiogram demonstrating normal 

hearing in the right ear, and a mild sloping-to-moderate sensorineural hearing loss from 1,000 through 8,000 Hz in the 

left ear. Dr. Oliaei diagnosed tinnitus, noise-induced hearing loss, and sensorineural hearing loss in the left ear.

6 Docket No. 17-1755 (issued March 9, 2018).
4

weapon with a louder report than previous firearms used. He experienced bilateral tinnitus which 

abated on the right after one week. Appellant posited that noise reverberating from trees on the 

left side of the shooting range caused more severe tinnitus on the left. A February 25, 2019 

audiogram demonstrated a 5 to 10 dB conductive hearing loss on the left and a sensorineural 

hearing loss on the left. Tympanometry was within normal limits bilaterally. Dr. Becker 

diagnosed left conductive hearing loss, left sensorineural hearing loss, left tinnitus, chronic rhinitis, 

and a eustachian tube dysfunction. She opined that the eustachian tube dysfunction “might be 

accounting for part of the conductive hearing loss.”

By decision dated March 11, 2019, OWCP denied modification of its July 27, 2017 

decision. Appellant, through counsel, then appealed to the Board.

During the pendency of the prior appeal, appellant submitted additional medical evidence. 

In a June 12, 2019 report, Dr. Becker opined that there was a “direct relationship between him 

having excellent hearing on previous physicals and then having a sensorineural hearing loss in the 

left ear after his accident in May 2017.” Appellant also had tinnitus. Dr. Becker noted that causal 

relationship was further supported by appellant’s medical history and the February 25, 2019 

audiogram. She noted that she agreed with Dr. Simmer that loud noise exposure was recognized 

as a cause of sensorineural hearing loss and tinnitus. “The left sensorineural hearing loss on” the 

February 25, 2019 audiogram “with normal audiograms previous to his first episode of noise 

exposure supports this.” Dr. Becker opined that appellant would benefit from a hearing aid in his 

left ear. 

Appellant also submitted an audiogram dated July 15, 2019, obtained by a registered nurse 

whose signature is illegible. At the frequency levels of 500, 1,000, 2,000, and 3,000 Hz in the 

right ear, appellant exhibited dB losses of 15, 15, 15, and 25, respectively. Testing at the same 

frequency levels for the left ear revealed dB losses of 25, 35, 30, and 60, respectively. The nurse 

totaled the decibel losses in the left ear to equal 150 and divided the result by four to equal 37.5. 

Subtracting the fence of 25 decibels left a balance of 12.5, multiplied by a factor of 1.5 to equal an 

18.75 percent monaural hearing loss in the left ear. 

By decision issued November 5, 2019, the Board affirmed OWCP’s March 11, 2019 

decision, finding that the medical evidence of record did not contain sufficient rationale supporting 

causal relationship between the accepted May 26, 2017employment incident and the claimed leftsided hearing loss and tinnitus to meet appellant’s burden of proof. 

On November 7, 2019 appellant, through counsel, requested reconsideration. He 

contended that Dr. Becker’s June 12, 2019 report was sufficient to vacate the prior decision. 

Counsel also provided a copy of the July 15, 2019 audiogram. 
5

By decision dated February 4, 2020, OWCP denied appellant’s request for

reconsideration.7

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.8

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

provide evidence or an 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.9

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

OWCP’s decision for which review is sought.10 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.11 If the request is timely, but fails to meet at least one of the 

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

reopening the case for review on the merits.12

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).

 

7 OWCP actually referred to the Board’s November 5, 2019 decision. However, OWCP has no jurisdiction to 

review a Board decision. The decisions and orders of the Board are final as to the subject matter appealed and such 

decisions and orders are not subject to review, except by the Board. See 20 C.F.R. § 501.6(d). Appellant had 30 days 

from the date of the Board’s June 14, 2018 decision to file a petition for reconsideration with this Board of its decision. 

Id. at § 501.7. See also C.M., Docket No. 19-1211 (issued August 5, 2020); B.B., Docket No. 14-0464 (issued 

June 4, 2014).

8 5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287 

(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

9 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).

10 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). Chapter 2.1602.4b.

11 Id. at § 10.608(a); see also A.F., Docket No. 19-1832 (issued July 21, 2020); M.S., 59 ECAB 231 (2007).

12 Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued 

April 2, 2020); E.R., Docket No. 09-1655 (issued March 18, 2010).
6

The Board finds that appellant has not alleged or demonstrated that OWCP erroneously 

applied or interpreted a specific point of law. Moreover, appellant has not advanced a relevant 

legal argument not previously considered. Counsel asserted that appellant had submitted 

uncontroverted medical evidence sufficient to warrant further development. He further asserted 

that the newly submitted June 12, 2019 report from Dr. Becker and July 15, 2019 audiogram were 

sufficient to vacate OWCP’s prior decision. Causal relationship, however, is a medical issue that 

must be addressed by relevant medical evidence.13 Counsel’s lay opinion is not relevant to the 

underlying issue in this case, which is whether the medical evidence establishes that appellant 

sustained an employment-related left-sided hearing loss and tinnitus. Consequently, 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).14

The Board further finds that appellant has not provided any relevant and pertinent new 

evidence not previously considered. Appellant submitted a June 12, 2019 report from Dr. Becker, 

who diagnosed left-sided hearing loss and tinnitus. She opined that these conditions were related 

to work factors based on the date of onset and expressed agreement with Dr. Simmer’s opinion 

that exposure to loud noise could cause sensorineural hearing loss and tinnitus. While this report 

is new, it is substantially similar to Dr. Becker’s February 25, 2019 report previously of record, 

which also described the onset of left-sided hearing loss and tinnitus following exposure to loud 

noise while at work. Providing additional evidence that either duplicates or is substantially similar 

to evidence already of record does not constitute a basis for reopening a case.15 Appellant also 

submitted a July 15, 2019 audiogram in support of her request for reconsideration. This report, 

however, is irrelevant as it does not address the underlying issue of causal relationship. The Board 

has held that the submission of evidence that does not address the underlying issue involved does 

not constitute a basis for reopening a case.16 As appellant did not provide relevant and pertinent 

new evidence, he is not entitled to a merit review based on the third requirement under 20 C.F.R. 

§ 10.606(b)(3).17

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.18

On appeal counsel contends that OWCP failed to give due deference to the findings of 

appellant’s physicians and failed to adjudicate the claim in accordance with the proper standard of 

causation. As explained above, the Board lacks jurisdiction over the merits of this case and 

appellant’s November 7, 2019 is insufficient to warrant further merit review. 

 

13 A.G., Docket No. 20-0290 (issued June 24, 2020).

14 A.G., id.; C.B., Docket No. 18-1108 (issued January 22, 2019).

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

16 T.T., Docket No. 19-1624 (issued October 28, 2020).

17 See T.W., Docket No. 18-0821 (issued January 13, 2020).

 

18 J.B., supra note 12; D.G., Docket No. 19-1348 (issued December 2, 2019).
7

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 February 4, 2020 decision of the Office of

Workers’ Compensation Programs is affirmed.

Issued: February 12, 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