J.E. and Department of the Army, Red River Army Depot, Texarkana, TX (Board decision, March 25, 2015)

ECAB final decision. The Board affirmed OWCP’s June 24, 2014 denial of a hearing loss claim. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

J.E., an Army depot employee, claimed that workplace noise caused hearing loss. He referred to blower motors and loud noise but did not supply the requested history of his jobs or details about the noise sources and exposure. The Board held that the missing factual account prevented evaluation of the claim. It affirmed OWCP’s denial.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.; 20 C.F.R. § 501.2(c).
• Outcome: June 24, 2014 hearing loss denial affirmed.
• Key point: The claim lacked a sufficiently detailed account of workplace noise exposure.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.E., Appellant
)
)
and ) Docket No. 15-333
) Issued: March 25, 2015
DEPARTMEMT OF THE ARMY, RED RIVER
)
ARMY DEPOT, Texarkana, TX, Employer
)
__________ )

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

DECISION AND ORDER

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

JURISDICTION

On November 26, 2014 appellant filed a timely appeal from a June 24, 2014 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.2

ISSUE

The issue is whether appellant has established a hearing loss causally related to his federal employment.

1
5 U.S.C. § 8101 et seq.
2
After the Board took jurisdiction on November 26, 2014 over the June 24, 2014 OWCP decision, appellant requested a hearing before an OWCP hearing representative. OWCP issued a decision dated December 17, 2014 denying the request as untimely. The Board has jurisdiction over decisions issued within 180 days prior to the filing of the appeal, and therefore does not have jurisdiction on this appeal over a December 17, 2014 decision. See 20 C.F.R. § 501.3(e); see also Jada Mason-Richardson, Docket No. 98-405 (issued August 19, 1999). FACTUAL HISTORY

On January 7, 2014 appellant, then a 66-year-old boiler plant operator, filed an occupational disease claim for compensation (Form CA-2) alleging hearing loss as a result of his federal employment. On the claim form, he stated that he was exposed to blower motors and loud noises. The date appellant became aware of the condition and its relationship to employment was reported as December 16, 2013. He submitted employing establishment audiograms from an audiologist dated December 16 and 17, 2013.

By letter dated January 13, 2014, OWCP requested that appellant submit additional information. It requested that he submit his employment history, both federal and nonfederal, job titles, a description of noise exposure, and use of any noise-reducing devices. OWCP advised appellant that the claim would be held open for 30 days to provide an opportunity to submit the requested evidence. The record also contains a letter dated January 13, 2014 requesting similar information from the employing establishment. No response was received.

By decision dated February 28, 2014, OWCP denied the claim for compensation as no evidence had been submitted as requested.

On March 26, 2014 appellant requested reconsideration. On that date OWCP received employing establishment audiograms from 1983 to 2005.

By decision dated June 24, 2014, OWCP reviewed the case on its merits and denied modification. It found appellant had failed to submit factual evidence as to his specific employment history, sources of noise, job titles, or other relevant information.

LEGAL PRECEDENT

A claimant seeking benefits under FECA3 has the burden of proof to establish the essential elements of his or her claim by the weight of the reliable, probative, and substantial evidence, including that an injury was sustained in the performance of duty as alleged and that any specific condition or disability claimed is causally related to the employment injury.4

To establish that an injury was sustained in the performance of duty, a claimant must submit: (1) a factual statement identifying 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 employment factors identified by the claimant.5

3
5 U.S.C. §§ 8101-8193.
4
20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).
5
Ruby I. Fish, 46 ECAB 276, 279 (1994).

2
 With respect to hearing loss claims, OWCP procedures provide specific requirements for the audiological testing and medical examinations necessary to establish the claim.6 The procedures state that once all “pertinent factual evidence” has been obtained, the medical evidence would be developed.7

ANALYSIS

In the present case, appellant has alleged that he sustained hearing loss as a result of his federal employment, but a claimant must initially provide factual evidence with respect to his or her claim of noise exposure. The claim form briefly refers to blower motors and exposure to loud noises, without further explanation. Appellant did not provide his employment history, with dates of employment and the jobs performed. He did not clearly identify and discuss the sources of noise exposure, the nature and extent of the exposure, or otherwise provide a proper factual background for his claim for compensation. A claimant must provide an adequate description of the alleged noise exposure.8 If a claimant does not submit an adequate factual statement with respect to a hearing loss claim, OWCP may properly deny the claim.9

The Board accordingly finds that OWCP properly denied the claim for compensation in this case. Appellant was advised of the need to submit a proper description of his employment history and noise exposure in the January 13, 2014 letter. In the absence of an appropriate response, OWCP properly denied the claim.

On appeal, appellant submitted additional medical evidence. The Board notes that it may review only evidence that was before OWCP at the time of the final decision on appeal.10 Moreover, the denial of the claim in this case was based on the lack of a proper factual background.

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not established a hearing loss causally related to his federal employment.

6
Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.8(a) (September 1996). The medical examination, for example, should be performed by a Board-certified otolaryngologist. 7 Id.
8
D.B., Docket No. 06-2177 (issued March 28, 2007).
9
Id.
10
20 C.F.R. § 501.2(c).

3
 ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated June 24, 2014 is affirmed.

Issued: March 25, 2015
Washington, DC

Patricia Howard Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4