S.B. and Defense Agencies, Defense Contract Management Agency, Fort Riley, KS (Board decision, February 16, 2021)

ECAB final decision. The Board dismissed S.B.’s appeal for lack of a final adverse OWCP decision to review. The order does not decide entitlement to payment for hearing 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

S.B. appealed what he described as an OWCP refusal to authorize payment for hearing aids. The Board found no final adverse decision in the record within its appeal window. OWCP’s last decision had accepted his hearing loss claim and provided instructions for obtaining hearing aids. The Board dismissed the appeal for lack of jurisdiction and did not decide a payment dispute.

Decision snapshot

• Authority: Board jurisdiction over final adverse OWCP decisions, 20 C.F.R. §§ 501.2(c), 501.3(a).
• Outcome: Appeal dismissed for lack of a reviewable adverse decision.
• Key point: The accepted claim and hearing aid instructions were not a final adverse decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.B., Appellant
)
)
and ) Docket No. 20-1355
) Issued: February 16, 2021
DEFENSE AGENCIES, DEFENSE CONTRACT
)
MANAGEMENT AGENCY, Fort Riley, KS,
)
Employer
)
__________ )

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

ORDER DISMISSING APPEAL

Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On June 29, 2020 appellant sought an appeal from a purported April 11, 2020 decision of the Office of Workers’ Compensation Programs (OWCP), which allegedly denied authorization of payment for hearing aids.1 The Clerk of the Appellate Boards assigned Docket No. 20-1355.2

The Board, having duly considered the matter, notes that the Board has jurisdiction to review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.3 The case record as transmitted to the Board does not contain a final adverse decision of OWCP

1
The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. 2 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). Given the disposition of the present order dismissing appeal, the Board, in exercising its discretion, denies appellant’s request for oral argument as moot. 3 5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a). issued within 180 days from the date of docketing of the current appeal.4 The last decision of record prior to appellant’s June 29, 2020 appeal was a decision dated March 16, 2020 accepting his claim for bilateral sensorineural hearing loss, in which OWCP found that appellant would benefit from hearing aids and provided instructions to appellant for receiving authorization and payment from OWCP for hearing aids from a medical supply company. As there is no final adverse decision issued by OWCP over which the Board may properly exercise jurisdiction, the Board concludes that the appeal docketed as No. 20-1355 must be dismissed. Accordingly,

IT IS HEREBY ORDERED THAT the appeal docketed as No. 20-1355 is dismissed.

Issued: February 16, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4
20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the date of issuance of a decision of the OWCP.”

2