A.B. and Department of the Army, Army Depot, Anniston, AL (Board decision, April 20, 2016)

ECAB remand decision. The Board set aside OWCP’s December 12, 2014 decision and remanded A.B.’s hearing loss claim for a merits ruling on ratable impairment. Whether he qualifies for a schedule award remains unresolved. 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., an Army Depot machinist supervisor, had an accepted claim for hearing loss. In an earlier appeal, the Board instructed OWCP to review whether that loss was ratable for a schedule award and whether hearing aids should be authorized. OWCP addressed hearing aids but did not decide the award issue as directed. The Board set aside OWCP’s decision and returned the case for a merits ruling on the extent of hearing loss and the evidence relevant to that question.

Decision snapshot

• Authority: 20 C.F.R. § 10.126.
• Outcome: December 12, 2014 decision set aside; hearing loss award issue remanded.
• Key point: OWCP had to decide the ratability issue identified in the Board’s prior remand.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.B., Appellant
)
)
and ) Docket No. 15-0683
) Issued: April 20, 2016
DEPARTMENT OF THE ARMY, ARMY
)
DEPOT, Anniston, AL, Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge ALEC J. KOROMILAS, Alternate Judge

On February 10, 2015 appellant filed a timely appeal from December 12, 2014 merit decisions 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

Appellant, then a 61-year-old machinist supervisor, filed an occupational disease claim (Form CA-2) on September 10, 2008 alleging bilateral hearing loss. OWCP accepted his claim for bilateral sensorineural hearing loss on February 7, 2012.

This case has been before the Board on prior appeal. By decision dated June 20, 2013,3 the Board found that at the time of OWCP’s February 7, 2012 decision, the report from Dr. Pappas, the second opinion physician, constituted the weight of the evidence and established

1
5 U.S.C. § 8101 et seq.
2
The Board notes that appellant submitted additional evidence to the record following OWCP’s December 12, 2014 decisions. The Board’s jurisdiction is limited to a review of the evidence which was before OWCP at the time of its final review. 20 C.F.R. § 501(c). 3 Docket No. 13-316 (issued June 20, 2013). that appellant did not have a ratable hearing loss. The Board also found that OWCP should have requested that the district medical adviser address whether hearing aids should be authorized. Furthermore, the Board found that OWCP had abused its discretion, in its November 1, 2012 decision, by refusing to reopen the case for further consideration of the merits regarding the issue of ratability of appellant’s hearing loss, including review of the September 28, 2011 report of Dr. J. Scott Robertson, a Board-certified otolaryngologist, and the October 9, 2012 letter from audiologist Jennifer Smith, regarding the September 28, 2011 audiogram.

OWCP thereafter issued two decisions dated December 12, 2014. The first decision, was labeled as an acceptance, and again accepted sensorineural bilateral hearing loss and thereafter found that the medical evidence of record established that appellant would benefit from hearing aids. The second decision dated December 12, 2014 was identified as a merit review. This decision noted the Board’s prior remand of the case, but only made findings regarding the issue of appellant’s entitlement to hearing aids, not the issue of ratability of appellant’s hearing loss. OWCP mentioned in passing that appellant’s hearing loss had previously been determined to be nonratable. OWCP disregarded the Board’s instructions in its June 20, 2013 decision to conduct a merit review of the evidence regarding the ratability of appellant’s hearing loss, with consideration of Dr. Robertson’s September 28, 2011 report. As the issue of ratability of appellant’s hearing loss was before OWCP at the time of its December 12, 2014 decision, appellant was entitled to a proper decision with findings of fact and a statement of reasons.4

The Board finds OWCP erred by failing to conduct a merit review regarding the ratability of appellant’s hearing loss, pursuant to the Board’s June 20, 2013 instructions.

4
20 C.F.R. § 10.126.

2
 IT IS HEREBY ORDERED THAT the December 12, 2014 decision of the Office of Workers’ Compensation Programs be set aside and the case be remanded to OWCP for further proceedings consistent with this order.

Issued: April 20, 2016
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

3