J.T. and Department of Homeland Security, Customs & Border Protection (Board decision, July 15, 2024)

ECAB final decision. The Board dismissed this appeal because OWCP had issued no final adverse decision for it to review. OWCP had accepted the hearing loss claim but had not decided the permanent impairment percentage, which remains open. 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 Customs and Border Protection employee appealed after OWCP accepted his hearing loss and tinnitus claim. He disputed a statement in a medical report that he feared could affect a later impairment rating. The Board found that OWCP had not yet made a final adverse decision on his impairment percentage. It dismissed the appeal for lack of jurisdiction without deciding the rating.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.; 20 C.F.R. § 501.2(c)(2).
• Outcome: Appeal dismissed; hearing loss impairment percentage remains undecided by OWCP.
• Key point: The Board cannot review a potential future impairment rating before OWCP issues a final adverse decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.T., Appellant
)
)
and ) Docket No. 24-0680
)
Issued: July 15, 2024
DEPARTMENT OF HOMELAND SECURITY, )
CUSTOMS & BORDER PROTECTION,
)
Port Clinton, OH, 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
JAMES D. McGINLEY, Alternate Judge

On June 13, 2024 appellant filed an appeal from an April 23, 2024 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned the appeal Docket No. 24-0680.

The Board, having duly considered the matter, notes that its jurisdiction is limited to the review of final adverse OWCP decisions issued under the Federal Employees’ Compensation Act. 1 This jurisdiction encompasses any final adverse decision issued by OWCP within 180 days of the date appellant filed his appeal. 2

By decision dated April 23, 2024, OWCP accepted appellant’s claim for occupational disease for the conditions of bilateral sensorineural hearing loss and bilateral tinnitus . It further found that the medical evidence of record established that he would benefit from hearing aids.

1
5 U.S.C. § 8101 et seq; 20 C.F.R. §§ 501.2(c) and 501.3.
2
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.”
The April 24, 2024 decision does not constitute a final adverse decision from OWCP within the Board’s jurisdiction to review on appeal, because this decision was not adverse to appellant. The April 23, 2024 decision accepted appellant’s occupational disease claim for bilateral sensorineural hearing loss and bilateral tinnitus, as well as finding that the medical evidence of record established that he would benefit from hearing aids. On appeal to the Board, appellant disputed a statement in an April 1, 2024 second opinion report from Dr. Douglas McCorkle, a Board-certified otolaryngologist, and expressed concern that it would affect the calculation of his degree of hearing loss. At that time, however, OWCP had not issued a final decision on appellant’s percentage of permanent impairment due to hearing loss.

Section 501.2(c)(2) of the Board’s Rules of Procedure provides: “There will be no appeal with respect to any interlocutory matter decided (or not decided) by OWCP during the pendency of a case.”3 Consequently, the case record as transmitted to the Board does not contain a final adverse decision of OWCP issued within 180 days from the date of docketing of the current appeal. As there is no final adverse decision issued by OWCP over which the Board m ay properly exercise jurisdiction, the Board concludes that the appeal docketed as No. 24 -0680 must be dismissed. 4 Accordingly,

IT IS HEREBY ORDERED THAT the appeal docketed as No. 24-0680 is dismissed.

Issued: July 15, 2024
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

3
Id. at § 501.2(c)(2).
4
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” Id. at § 501.6(d).

2