T.H. and Department of the Navy, Naval Base Kitsap, Keyport, WA (Board decision, December 15, 2017)

ECAB final decision. The Board set aside OWCP’s November 17, 2015 refusal to reopen the case and remanded for merit review. 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

T.H. asked OWCP to reconsider termination of benefits after he declined a security clerk position. A new audiologist letter, countersigned by a physician, said he should avoid hazardous workplace noise. The Board found that this evidence was relevant to whether the offered job was suitable. It ordered OWCP to reopen the claim and issue a merit decision without deciding the ultimate suitability question.

Decision snapshot

• Authority: 5 U.S.C. § 8128(a); 20 C.F.R. § 10.607.
• Outcome: November 17, 2015 refusal of merit review set aside and remanded.
• Key point: New evidence relevant to job suitability met the threshold for reconsideration.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.H., Appellant
)
)
and ) Docket No. 16-0800
)
Issued: December 15, 2017
DEPARTMENT OF THE NAVY,
)
NAVAL BASE KITSAP, Keyport, WA, Employer )
__________ )

Appearances: Case Submitted on the Record
John E. Goodwin, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 10, 2016 appellant, through counsel, filed a timely appeal from a November 17, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more than 180 days elapsed from OWCP’s last merit decision, dated April 23, 2015, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3

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 Appellant also filed a timely request for oral argument in this case pursuant to 20 C.F.R. § 501.5(b). After exercising its discretion, the Board, by order dated April 18, 2017, denied the request, as appellant’s arguments on appeal could be adequately addressed in a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 16-0800 (issued April 18, 2017). 3 5 U.S.C. § 8101 et seq.
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the claim.4

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

On February 11, 2013 appellant, then a 54-year-old firefighter, filed an occupational disease claim (Form CA-2) alleging bilateral hearing loss and tinnitus as a result of his federal employment. He became aware of his condition and that it was caused or aggravated by his federal employment on December 14, 2012. OWCP accepted appellant’s claim for bilateral hearing loss. Appellant has a prior claim, number xxxxx133, accepted for bilateral hearing loss, which is the master file of the current claim.

On June 13, 2013 appellant was advised of the employing establishment’s inability to accommodate him in his firefighter position. On July 23, 2013 the employing establishment offered appellant the position of security clerk (office automation) as a permanent reasonable accommodation. The position was located at the passport and identification office and appellant informally and briefly worked this position. Appellant refused to formally accept the job offer and also refused any other attempts by the employing establishment to find suitable work for him at other facilities. He officially declined the job offer on August 14, 2013.

In a letter dated September 10, 2013, OWCP advised appellant that the offered position of security clerk was found to be suitable to his capabilities and was currently available. It found the position suitable and in accordance with appellant’s medical limitations for his date-of-injury job as a firefighter because it did not involve any significant noise exposure or the need for normal hearing, with or without hearing aids.5 Appellant was provided 30 days to accept the position or provide written reasons for his refusal. OWCP informed him that if he failed to accept the offered position and failed to demonstrate that the refusal of the offer of suitable work was justified, his compensation would be terminated pursuant to 5 U.S.C. § 8106(c)(2).

When appellant did not return to work within 30 days of the September 10, 2013 letter, OWCP advised appellant in a November 19, 2013 letter that the offered position remained suitable and available to him and that his reasons for refusing to accept the offered position were

4
The Board notes that appellant submitted additional evidence after OWCP rendered its November 17, 2015 decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. See 20 C.F.R. § 501.2(c)(1). 5 In a December 18, 2012 report, Ashley B. Gordon evaluated appellant, then a civilian firefighter, for fitness for duty given his hearing loss in both ears. She opined that appellant was not audiometrically fit for duty as a fireman. Ms. Gordon reviewed the National Fire Protection Association Standards on Medical Program for Fire Departments and opined that appellant would have increased difficulty hearing while performing critical job duties in the presence of background noise with and without the use of protective equipment.

2 not valid. Appellant was afforded 15 additional days to accept and report to that position or his entitlement to wage-loss compensation and schedule award benefits would be terminated. He did not do so within the time allotted.

By decision dated January 8, 2014, OWCP terminated appellant’s compensation and entitlement to claim a schedule award effective January 8, 2014 as he refused an offer of suitable work under section 8106(c)(2). It noted that he had not accepted the position within the allotted 15-day time period. OWCP determined that the job was suitable as the position may be performed within the prescribed restrictions. It found that his failure to report to the offered position was not justified as he had not submitted evidence that the position was beyond his ability or required him to be exposed to excessive noise.

On January 10 and 14, 2014 both counsel and appellant requested a hearing before an OWCP hearing representative, which was held June 27, 2014. Several declarations from coworkers were submitted along with appellant’s response and an argument from counsel.

In a September 11, 2014 decision, the hearing representative affirmed the January 8, 2014 OWCP decision. She found that appellant had refused the job offer of security clerk which was suitable and available. The hearing representative further found that appellant had not provided sufficient evidence to establish that he had performed the outside tasks he described while he informally worked at the passport and identification office or that such tasks would expose him to hazardous noise in the offered position.

On November 18, 2014 appellant requested reconsideration. Additional evidence regarding noise exposure was submitted. By decision dated April 23, 2015, OWCP denied modification of the September 11, 2014 decision. It noted that the confirmed incidents of noise exposure did not show that the offered security clerk job was unsuitable as such incidents did not happen on a repetitive basis. Appellant also provided insufficient evidence that he was exposed to a significant hazardous noise associated with the security clerk position.

On September 28, 2015 appellant requested reconsideration. In a July 28, 2015 letter, Amy M. Becken, Au. D., CCC-A, an audiologist, documented appellant’s work history and that he had worn hearing devices in both ears since 2001 due to the severity of his hearing loss and communication issues. It was her professional opinion that appellant not be exposed to any levels of hazardous noise at the workplace. This letter was countersigned by Dr. Michael McManus, a Board-certified occupational medicine specialist, on September 23, 2015.

In a nonmerit decision dated November 17, 2015, OWCP denied appellant’s reconsideration request. The decision noted that the evidence did not support that OWCP erroneously applied or interpreted a point of law or advance a relevant legal argument not previously considered. OWCP further found that the new evidence was not relevant. It explained that the statement which Dr. McManus countersigned, which noted that the work environment was contraindicated due to the dangers of continued exposure, was without merit as he had not provided empirical data or environmental studies of the building/site in question to substantiate a sustained noise decibel level in excess of 85. OWCP noted that no studies had been submitted as to how many semi-trucks passed through the gate, at what intervals, the duration of noise exposure from those vehicles, and most importantly, the level of noise in the

3 passport and identification office. It also cited 1981 Occupational Safety and Health Administration requirements to protect workers to a time weighted average noise of 85 decibels or higher over an eight-hour work shift.

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a matter of right.6 OWCP has discretionary authority in this regard and has imposed certain limitations in exercising its authority.7 One such limitation is that the request for reconsideration must be received by OWCP within one year of the date of the decision for which review is sought.8 A timely application for reconsideration, including all supporting documents, must set forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or interpreted a specific point of law; (ii) advances a relevant legal argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.9 When a timely application for reconsideration does not meet at least one of the above-noted requirements, OWCP will deny the request for reconsideration without reopening the case for a review on the merits.10

ANALYSIS

The only decision before the Board in this appeal is the nonmerit decision of OWCP dated November 17, 2015, which denied appellant’s application for review.

The merit issue in this case is whether OWCP properly terminated appellant’s wage-loss compensation benefits effective January 8, 2014 as he refused an offer of suitable work. By decision dated January 8, 2014, OWCP terminated appellant’s compensation and entitlement to a schedule award effective January 8, 2014 as he refused an offer of suitable work under section 8106(c)(2). The refusal of an offer of suitable work was affirmed by an OWCP hearing representative on September 11, 2014 and OWCP denied modification in a merit decision on April 23, 2015. Appellant requested reconsideration on September 28, 2015 and submitted a July 28, 2015 letter from an audiologist, which Dr. McManus countersigned on September 23, 2015.

6
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a). 7 20 C.F.R. § 10.607.
8
Id. at § 10.607(a). 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). Id. at Chapter 2.1602.4b. 9 Id. at § 10.606(b)(3).
10
Id. at § 10.608(a), (b).

4
 The Board finds that, as appellant did not assert that OWCP erroneously applied or interpreted a point of law or advance a relevant legal argument not previously considered by OWCP, he was not entitled to a review of the merits of his claim based on the first and second above-noted requirements under section 10.606(b)(3).11

With respect to the third above-noted requirement under section 10.606(b)(3), appellant submitted a July 28, 2015 letter from an audiologist, Amy Becken, which Dr. McManus countersigned on September 23, 2015. In the July 28, 2015 letter, the audiologist documented appellant’s work and medical history and for the first time set forth specific restriction of avoiding hazardous noise. She opined that appellant not be exposed to any levels of hazardous noise at the workplace.

On appeal counsel argued a merit review should have been conducted as relevant new medical evidence was submitted. The Board agrees. The Board finds that Dr. McManus’ report, which had not previously been reviewed by OWCP, constitutes relevant and pertinent new evidence in regard to whether OWCP properly terminated appellant’s benefits for refusing suitable work. This evidence goes to the question of whether the security clerk position exposed appellant to any hazardous noise. It is not necessary that the evidence be sufficient to establish the claim, only that it is new, relevant, and pertinent to the issue presented.12

As appellant submitted relevant and pertinent new evidence on reconsideration that was not previously considered by OWCP, he is entitled to a review of the merits of his claim under section 10.606(b)(3) of OWCP regulations.13 The case shall therefore be remanded to OWCP to consider whether the audiologist’s July 28, 2015 letter, which Dr. McManus countersigned, is sufficient to require further development. The Board will therefore set aside OWCP’s November 17, 2015 decision. After this and such further development deemed necessary, OWCP shall issue an appropriate merit decision.

CONCLUSION

The Board finds that OWCP improperly denied appellant’s request for a merit review pursuant to section 8128(a) of FECA.

11
Id. at § 10.606(b)(3); see R.M., 59 ECAB 690 (2008).
12
P.H., Docket No. 15-1453 (issued August 4, 2016); C.L., Docket No. 14-1904 (issued May 18, 2015).
13
20 C.F.R. § 10.606(b)(3); see R.M., 59 ECAB 690 (2008).

5
 ORDER

IT IS HEREBY ORDERED THAT the November 17, 2015 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded to OWCP for proceedings consistent with this decision of the Board.

Issued: December 15, 2017
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

6