W.M. and Tennessee Valley Authority, Chattanooga, TN (Board decision, July 19, 2018)

ECAB remand decision. The Board returned the hearing loss claim for consideration of the omitted statement. Coverage remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

W.M., a TVA custodian, attributed hearing loss to turbines, welding, grinding, and cleaning equipment at work. OWCP denied the claim in part because it said his requested supplemental statement had not arrived. The Board found that OWCP had received the statement before deciding the case and had to consider it. It set aside the denial and returned the claim for a new decision; work related hearing loss remains unresolved.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: July 20, 2017 hearing loss denial set aside and remanded.
• Key point: OWCP had to consider the claimant’s timely supplemental account of workplace noise.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
W.M., Appellant
)
)
and ) Docket No. 18-0132
) Issued: July 19, 2018
TENNESSEE VALLEY AUTHORITY,
)
Chattanooga, TN, 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 October 23, 2017 appellant filed a timely appeal of a July 20, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). This appeal was assigned Docket No. 18-0132.

The Board finds that this case is not in posture for decision.

On May 17, 2017 appellant, then a 60-year-old lead custodian, filed an occupational disease claim (Form CA-2) alleging that he suffered from hearing loss as a result of his federal employment duties. He alleged that he was required to clean in the basement around loud turbines. Appellant noted that in order to get to the bathrooms and break rooms, he had to walk through areas with loud noise from welding machines and grinding machines. He also noted that he was exposed to sounds of cleaning equipment, such as scrubbers and vacuums.

By development letter dated June 9, 2017, OWCP informed appellant that further evidence was needed to support his claim. In order to substantiate the factual element of his claim, appellant was asked to provide a supplemental statement and respond to a questionnaire. The employing establishment was also sent a list of questions. Appellant was afforded 30 days to submit the requested information. On June 27, 2017 OWCP received a supplemental statement from appellant in which he related that he was exposed to excessive amounts of noise from multiple sources while cleaning, and that examples of plant noise were the turbines, pumps, and pipes as well as noise from welding and grinding machines. He also noted that he was exposed to noise from cleaning equipment, including vacuum cleaners and floor scrubbers. Appellant indicated that he was exposed to these sounds throughout the day, on a daily basis. He noted that he had to walk through these noisy areas in order to get to the offices, break rooms, and bathrooms that he cleaned. Appellant further related that he had undergone annual hearing tests at the employing establishment until about six years ago, at which time he was simply told to wear hearing protections when working around noise.

The employing establishment submitted results of appellant’s audiograms taken by the employing establishment from January 2, 2001 through May 23, 2006.

By decision dated July 20, 2017, OWCP denied appellant’s claim as it determined that the evidence of record was insufficient to establish that the work factors occurred as alleged. It found that while it had requested a supplemental statement from appellant describing his claim, no supplemental statement had been received.

In the case of William A. Couch,1 the Board held that when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a claimant and received by OWCP before the final decision is issued. The Board finds that, as OWCP did not review appellant’s supplemental statement received on June 27, 2017, the case will be remanded to OWCP to enable it to properly consider all of the evidence of record submitted at the time of the July 20, 2017 decision. Following such further development as OWCP deems necessary, it shall issue a de novo decision on appellant’s occupational disease claim.

1
41 ECAB 548 (1990).

2
 IT IS HEREBY ORDERED THAT the July 20, 2017 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings consistent with this opinion.

Issued: July 19, 2018
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