A.B. and Department of the Navy, Boston Naval Shipyard, Boston, MA (Board decision, May 13, 2013)

ECAB remand decision. The Board set aside OWCP’s July 5, 2012 denial of hearing aids and remanded for review of the medical evidence. OWCP still must decide A.B.’s entitlement to the requested aids. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

A.B., a former Navy shipyard employee, had an accepted work-related hearing loss and sought hearing aids decades after his schedule award. A 2011 ear specialist’s report diagnosed hearing loss and recommended two hearing aids. OWCP denied the request based on a 1976 report that did not address the need for hearing aids, without discussing the newer report. The Board set aside the denial and directed OWCP to review all relevant evidence before deciding the request again.

Decision snapshot

• Authority: OWCP’s duty to review relevant evidence received before issuing its final decision.
• Outcome: July 5, 2012 hearing aid denial set aside; request remanded for evidence review.
• Key point: OWCP could not decide a current hearing aid request solely from an older report while overlooking a later specialist’s recommendation.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.B., Appellant
)
)
and ) Docket No. 12-1907
) Issued: May 13, 2013
DEPARTMENT OF THE NAVY, BOSTON
)
NAVAL SHIPYARD, Boston, MA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

On September 18, 2012 appellant filed a timely appeal from an Office of Workers’ Compensation Programs’ (OWCP) decision dated July 5, 2012.

Appellant, then a 52-year-old position classification specialist, alleged that he sustained occupational loss of hearing due to exposure to loud and injurious noise while in the performance of duty on March 24, 1975. He was granted a schedule award for 10 percent bilateral neurosensory hearing loss by decision dated July 2, 1976. This case was before the Board on prior appeal;1 however, the Board’s full decision is not of record.

By letter dated October 13, 1976, the Associate Director of the Federal Employees’ Compensation Program returned the case record to the regional office and advised that the Board had affirmed the schedule award rating, but remanded the case to OWCP for clarification of issues relating to pay rate and entitlement of medical benefits.

In a May 5, 1976 otologic examination report, Dr. Robert W. Clubb, a Board-certified otolaryngologist, reported that appellant had sustained bilateral sensorineural hearing loss due to work-related noise exposure. He provided no opinion as to whether appellant required hearing

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Docket No. 76-353 (issued September 23, 1976). aids. On May 12, 1976 OWCP’s district medical adviser reviewed Dr. Clubb’s May 5, 1976 otologic examination report. He agreed that appellant’s bilateral neurosensory hearing loss was due to occupational noise exposure. The district medical adviser did not address whether hearing aids should be authorized.

By decision dated March 7, 1977, OWCP advised appellant that a review of his pay rate established that he was entitled to a pay rate for compensation purposes of $288.72, rather than the $274.30 rate at which he had been paid. Appellant was also advised that, as for medical benefits, his case would be submitted to OWCP’s district medical adviser for authorization of another medical evaluation. The record does not substantiate that he was referred for further medical evaluation. Rather, the case was closed and archived in 1977.

On February 28, 2011 appellant requested that his case be reopened so that he could request new hearing aids. He submitted an October 4, 2011 audiology report issued by Dr. Kirk Bohigian, a Board-certified otolaryngologist, who noted appellant’s history of neurosensory hearing loss as well as his noise exposure while working on the Boston Naval Shipyard. Dr. Bohigian diagnosed appellant with moderate neurosensory hearing loss and recommended binaural hearing aids.

In a November 7, 2011 letter, OWCP notified appellant’s senator that appellant is “entitled to hearing aids at the expense of [OWCP] as the medical report and diagnostic tests performed on October 4, 2011 were indicative of such.” It was also noted that “all such requests must be submitted by the medical providers who must be enrolled with the Central Bill processing contractor so that services can be authorized and medical bills can be processed.”

Appellant subsequently submitted a request for authorization of hearing aids on April 6, 2012.

A May 31, 2012 OWCP telephone record indicates that it informed the medical provider that the hearing aids had been approved.

OWCP telephone memorandums dated June 19 and 28, 2012 indicate that it contacted appellant’s senator’s office to relay that appellant’s claim for hearing aids would be denied as there was no entitlement to hearing aids because the impairment was not indicative of the need for amplification.

In a July 6, 2012 decision, OWCP denied appellant’s claim for binaural hearing aids, as well as other medical benefits, because the May 5, 1976 audiology report did not establish that his hearing loss was at a level that would require amplification.

Board precedent holds that OWCP must review all evidence submitted by a claimant and received by it prior to the issuance of a final decision.2 As the Board’s jurisdiction is final as to the subject matter, it is crucial that OWCP accomplish this. In its July 5, 2012 decision, OWCP did not consider the October 4, 2011 medical report from Dr. Bohigian, a Board-certified otolaryngologist; rather it based the decision on the May 5, 1976 medical report from Dr. Clubb.

2
William A. Couch, 41 548 (1990). See also J.A., Docket No. 12-1902 (issued March 12, 2013).

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As OWCP failed to address all the relevant evidence of record at the time it issued its July 5, 2012 decision, the case is remanded for a proper review of the evidence and issuance of an appropriate final decision.

IT IS HEREBY ORDERED THAT the July 5, 2012 decision of the Office of Workers’ Compensation Programs is set aside, and the case record is remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: May 13, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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