United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

TENNESSEE VALLEY AUTHORITY,

FORT LOUDON DAM HYDRO PLANT, 

Lenoir City, TN, Employer

__________________________________________

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Docket No. 21-0261

Issued: September 29, 2021

Appearances: Case Submitted on the Record

James T. Bobo, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER 

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 16, 2020 appellant, through counsel, filed a timely appeal from a

November 2, 2020 nonmerit decision of the Office of Workers’ Compensation Programs. As more 

than 180 days elapsed from the last merit decision dated August 8, 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 over the merits of the case. 

 

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, 

finding that it was untimely filed and failed to demonstrate clear evidence of error.

FACTUAL HISTORY

On February 5, 2019 appellant, then a 63-year-old retired power plant/hydro operator, filed 

an occupational disease claim (Form CA-2) alleging that he developed hearing loss due to factors 

of his federal employment, including exposure to rotating equipment, generators, turbines, and 

large air compressors.

3

 He noted that he first became aware of his condition and its relationship 

to his federal employment on November 21, 2018.

In a November 26, 2018 audiometric report, David T. Cope, Au.D., an audiologist, noted 

symptoms of decreased hearing bilaterally which appellant attributed to significant occupational 

and military noise exposure. He conducted testing and diagnosed mild-to-moderate sensorineural 

hearing loss bilaterally. 

In a letter dated December 7, 2018, Dr. Scott E. Davis, a family practitioner, indicated that 

appellant was being followed by Dr. Cope for gradually occurring, noise-induced bilateral hearing 

loss with consequential tinnitus with episodic dizziness and vertigo. He opined that, in accordance 

with the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides),4the November 21, 2018 audiogram revealed 23.4 percent binaural 

hearing loss. Dr. Davis further opined that appellant was entitled to an additional five percent 

permanent impairment for tinnitus and that, within a reasonable degree of medical certainty, his 

hearing loss was causally related to noise exposure at the employing establishment’s facilities. 

In a February 26, 2019 development letter, OWCP advised appellant of the type of 

evidence needed to establish his claim and provided a questionnaire for his completion. In a 

separate letter of even date, it requested that the employing establishment provide comments from 

a knowledgeable supervisor on the accuracy of his statements, describe the sources of exposure to 

noise, and provide a copy of all medical examinations pertaining to hearing or ear problems, 

including preemployment examination and audiograms. OWCP afforded both parties 30 days to 

respond.

Appellant noted in a March 21, 2019 response to OWCP’s hearing loss questionnaire, that 

he worked for the employing establishment from November 1977 until July 2005. During that 

time, he was exposed to hydro powerhouse equipment including generators, turbines, powerhouse 

compressors, evacuation air blow-down equipment, cooling fans, water pumps, spillway gate 

machinery, and air and electric power tools. Appellant further related that he was also exposed to 

switchyard equipment including transformers which induced continuous 60 Hertz frequency, as 

well as circuit breakers and cooling fans. Prior to his federal employment, he was enlisted in the

United States Army from August 1972 through August 1975, during which time he was exposed 

to live weapons fire, helicopter transportation, vehicle engines, compressors, and power tools. 

 

3 Appellant retired from the employing establishment on July 23, 2005. 

4 A.M.A., Guides(6th ed. 2009).
3

In a report dated April 10, 2019, Whitney R. Mauldin, Au.D., an audiologist, indicated that 

she reviewed appellant’s Form CA-2, medical records, work history, and audiometric record. She 

opined that appellant did not meet the criteria to establish hearing loss causally related to exposure 

to noise at work. Dr. Mauldin explained that he had no exposure to any level of noise as a federal 

employee for the past 14 years due to his retirement, and opined that noise-induced hearing loss is 

not a latent condition. She further explained that hearing loss due to noise occurs at the time of 

the exposure, not many years later.

OWCP also received a report of even date summarizing appellant’s audiometric testing 

results through the employing establishment between September 22, 1983 and July 19, 2005. 

On May 2, 2019 OWCP referred appellant, along with the medical records, and a statement 

of accepted facts (SOAF), for audiological testing by Kenneth C. Parker, Au.D., an audiologist, 

and a second opinion evaluation with Dr. Joseph A. Motto, a Board-certified otolaryngologist. 

In a report dated May 17, 2019, Dr. Motto reviewed the SOAF, performed a physical 

examination, and completed OWCP’s hearing loss questionnaire. He indicated that there was no 

significant variation from the SOAF and noted that appellant’s last noise exposure with the 

employing establishment was in 2005. Dr. Motto diagnosed sensorineural hearing loss and opined 

that the hearing loss was not attributable to exposures while working for the employing 

establishment. He explained that the audiometric testing was not consistent with noise-induced 

hearing loss. 

By decision dated August 8, 2019, OWCP denied the claim, finding that the evidence of 

record was insufficient to establish a causal relationship between appellant’s diagnosed hearing 

loss and the accepted factors of his federal employment. 

On August 11, 2020 appellant, through counsel, requested reconsideration of OWCP’s 

August 8, 2019 decision. 

In support of the request, appellant submitted a July 14, 2020 narrative report of Dr. Mark 

Gurley, a Board-certified otolaryngologist, who noted appellant’s history of working as a power 

plant operator at the employing establishment for over 30 years. Dr. Gurley indicated that he 

reviewed extensive medical and hearing records, which he opined revealed a steady decline in 

appellant’s hearing through the years. He reviewed audiometric testing conducted on that date and 

diagnosed bilateral sensorineural hearing loss, which he opined was “likely noise induced.”

In further support of his request, appellant resubmitted the May 4, 2020 audiological report 

of Dr. Cope and the July 14, 2020 testing results by Dr. Katie Fuller, an audiologist. 

By decision dated November 2, 2020, OWCP denied appellant’s request for 

reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error. 

It stated, “You submitted new medical evidence which cannot be considered in arriving at a 

determination of clear evidence of error.”
4

LEGAL PRECEDENT

Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further 

merit review.5 This discretionary authority, however, is subject to certain restrictions. For 

instance, a request for reconsideration must be received within one year of the date of OWCP’s 

decision for which review is sought.6 Timeliness is determined by the document receipt date, i.e., 

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 7 

Imposition of this one-year filing limitation does not constitute an abuse of discretion.8

When a request for reconsideration is untimely, OWCP undertakes a limited review to 

determine whether the request demonstrates clear evidence that OWCP’s most recent merit 

decision was in error.9 OWCP’s procedures provide that it will reopen a claimant’s case for merit 

review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the 

claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of 

OWCP.10 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.11

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the 

issue, which was decided by OWCP.12 The evidence must be positive, precise, and explicit and 

must manifest on its face that OWCP committed an error. Evidence, which does not raise a 

substantial question concerning the correctness of OWCP’s decision, is insufficient to demonstrate 

clear evidence of error. It is not enough merely to show that the evidence could be construed so 

as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence 

submitted with the reconsideration request bears on the evidence previously of record and whether 

the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence 

of error, the evidence submitted must be of sufficient probative value to shift the weight of the 

evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s 

decision.13

 

5

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued 

March 16, 2009).

6

20 C.F.R. § 10.607(a).

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations,Chapter 2.1602.4(b) (February 2016).

8 G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. 

Faidley, Jr., 41 ECAB 104 (1989).

9

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB 

499 (1990).

10 L.C., Docket No. 18-1407 (issued February14, 2019); M.L., Docket No. 09-0956 (issued April15, 2010). See 

also 20 C.F.R. § 10.607(b); supra note 7at Chapter 2.1602.5 (February 2016).

11 J.M., Docket No. 19-1842 (issued April23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

12 S.C.,Docket No. 18-0126 (issued May 14, 2016); supra note 7at Chapter 2.1602.5(a) (February 2016).

13 C.M., Docket No. 19-1211 (issued August 5, 2020).
5

OWCP’s procedures note that the term clear evidence of error is intended to represent a 

difficult standard. The claimant must present evidence, which on its face demonstrates that OWCP 

made an error (for example, proof that a schedule award was miscalculated). Evidence such as a 

detailed, well-rationalized medical report, which if submitted before the denial was issued, would 

have created a conflict in medical opinion requiring further development, is not clear evidence of 

error.14 The Board makes an independent determination of whether a claimant has demonstrated 

clear evidence of error on the part of OWCP.15

ANALYSIS

The Board finds that OWCP properly determined that appellant’s August 11, 2020 request 

for reconsideration was untimely filed.

The last merit decision of record was issued on August 8, 2019. As appellant’s request for 

reconsideration was received by OWCP on August 11, 2020, more than one year after the 

August 8, 2019 merit decision, pursuant to 20 C.F.R. § 10.607(a), the Board finds the request for 

reconsideration was untimely filed. Consequently, appellant must demonstrate clear evidence of 

error by OWCP in denying the claim.16

The Board further finds, however, that OWCP did not make sufficient findings regarding 

the evidence submitted in support of the reconsideration request.17 OWCP denied appellant’s 

request for reconsideration without complying with the review requirements of FECA and its 

implementing regulations.18 Section 8124(a) of FECA provides that OWCP shall determine and 

make a finding of fact and make an award for or against payment of compensation.19 Its 

regulations at section 10.126 provide that the decision of the Director of OWCP shall contain 

findings of fact and a statement of reasons.20 As well, OWCP’s procedures provide that the 

reasoning behind OWCP’s evaluation should be clear enough for the reader to understand the 

precise defect of the claim and the kind of evidence which would overcome it.21

In denying appellant’s August 11, 2020 reconsideration request, OWCP noted: “You 

submitted new medical evidence which cannot be considered in arriving at a determination of clear 

 

14 J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 7at Chapter 2.1602.5(a) (February 2016).

15 D.S., Docket No. 17-0407 (issued May 24, 2017).

16 20 C.F.R. § 10.607(b); see R.T., Docket No. 19-0604 (issued September 13, 2019); see Debra McDavid, 57 

ECAB 149 (2005).

17 See Order Remanding Case, J.K., Docket No. 20-0556 (issued August 13, 2020); Order Remanding Case, C.D., 

Docket No. 20-0450 (issued August 13, 2020); Order Remanding Case, T.B., Docket No. 20-0426 (issued 

July 27, 2020).

18 See C.G., Docket No. 20-0051 (issued June 29, 2020); T.P., Docket No. 19-1533 (issued April30, 2020); see 

also 20 C.F.R. § 10.607(b).

19 5 U.S.C. § 8124(a).

20 20 C.F.R. § 10.126.

21 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).
6

evidence of error.” However, it provided no further discussion relative to the specific medical 

evidence submitted.22 

The Board will, therefore, set aside OWCP’s August 11, 2020 decision and remand the 

case for an appropriate decision on appellant’s untimely reconsideration request, which describes 

the evidence submitted on reconsideration and provides detailed reasons for accepting or denying 

the reconsideration request.

CONCLUSION

The Board finds that OWCP properly determined that appellant’s August 11, 2020 request 

for reconsideration was untimely filed. However, the Board further finds that the case is not in 

posture for decision with regard to whether the untimely reconsideration request demonstrates 

clear evidence of error.

ORDER

IT IS HEREBY ORDERED THAT the November 2, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed in part, set aside in part, and the case is remanded 

for further proceedings consistent with this decision of the Board.

Issued: September 29, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

22 See Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); R.T., supra note 16; R.C.,Docket 

No. 16-0563 (issued May 4, 2016).