M.P. and Department of the Navy, Fleet Readiness Center Southwest (Board decision, March 11, 2025)

ECAB final decision. The Board affirmed OWCP's denial of merits reconsideration and did not decide the underlying claim anew. 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). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A Navy machinist sought reconsideration of an earlier hearing-loss claim ruling. The Board found his request did not satisfy the requirements for reopening the merits. It upheld OWCP's denial of reconsideration.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Merits reconsideration denied.
• Key point: The request did not meet the reopening standard.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
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M.P., Appellant
)
)
and ) Docket No. 25-0206
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Issued: March 11, 2025
DEPARTMENT OF THE NAVY, FLEET
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READINESS CENTER SOUTHWEST,
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San Diego, CA, Employer
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__________ )

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

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 27, 2024, appellant filed a timely appeal from a December 27, 2024 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed from OWCP’s last merit decisions, dated April 12, 2024, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.

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).

1
5 U.S.C. § 8101 et seq.
FACTUAL HISTORY

On March 3, 2021, appellant, then a 59-year-old machinist, filed an occupational disease claim (Form CA-2) alleging that he developed hearing loss and tinnitus due to factors of his federal employment due to prolonged exposure to hazardous noise. He noted that he first became aware of his conditions on January 13, 2018, and realized their relationship to his federal employment on September 19, 2019.2 Appellant did not stop work.

In a separate statement accompanying the claim form, appellant indicated that he was diagnosed with hearing loss on January 13, 2018, and has been wearing hearing aids for 10 years. He noticed worsening hearing loss and tinnitus in July 2019. Appellant attributed his hearing loss to exposure to hazardous noise while working in industrial, production, and manufacturing sites at the workplace.

In support of his claim, appellant submitted an employing establishment audiometric hearing summary documenting his hearing conservation data and audiograms from October 31, 2018 through November 18, 2020. OWCP also received employing establishment medical records from October 8, 2020 and November 21, 2019, which recommended that appellant not work in a hazardous noise environment and be accommodated with double hearing protection at all times. On November 21, 2019, Dr. Michael Bezouska, a Board-certified physiatrist, recommended that appellant be transferred to a workspace that does not have hazardous noise and that he be provided with noise canceling headphones in addition to singles in the ears.

In a letter dated April 12, 2021, the employing establishment controverted appellant’s claim, asserting that appellant’s hearing loss was a preexisting service-connected condition. It noted that, on January 13, 2018, he was granted 10 percent disability from the Department of Veterans Affairs (VA).

On July 19, 2021, OWCP referred appellant, along with the medical record, a statement of accepted facts (SOAF), and a series of questions, to Dr. Jennifer MacEwan, a Board-certified otolaryngologist, for an audiogram and second opinion examination to determine the nature, extent, and causal relationship of appellant’s hearing loss.

In an August 10, 2021 second opinion report, Dr. MacEwan reviewed the SOAF, the history of injury, and the medical evidence of record. She diagnosed bilateral sensorineural hearing loss and bilateral non-pulsatile tinnitus. In her report, Dr. MacEwan noted that appellant’s bilateral sensorineural hearing loss was not due, in part or all, to noise exposure encountered in his federal employment. She further related that the bilateral tinnitus was, in part or all, due to noise exposure encountered in his federal employment. Dr. MacEwan recounted that appellant began his current federal employment with the employing establishment in 2018, with known preexisting bilateral sensorineural hearing loss requiring hearing aids. She advised that appellant’s pure tone averages had not changed significantly since the start of his recent employment. Therefore Dr. MacEwan concluded that his bilateral sensorineural hearing loss was not due to current occupational noise exposure, nor has it been aggravated by current occupational noise exposure. She opined that the preexisting bilateral non-pulsatile tinnitus was aggravated by noise exposure 2 Appellant was terminated from employment on July 18, 2023.

2 encountered during his federal civilian employment. Dr. MacEwan obtained audiology testing, which revealed the following decibel (dB) losses at 500, 1,000, 2,000, and 3,000 Hertz (Hz): 15, 20, 50 and 65 dBs for the right ear and 20, 40, 55, and 75 dBs for the left ear, respectively. She recommended bilateral hearing aids, noise protection, and annual audiograms.

Dr. MacEwan referred to the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3 applied OWCP’s standard for evaluating hearing loss to the August 10, 2021 audiogram, and determined that appellant had 21.25 percent of bilateral hearing impairment and 4 percent binaural hearing loss due to tinnitus. She reported appellant’s right ear hearing loss of 15, 20, 50, and 65 dBs at 500, 1,000, 2,000, and 3,000 Hz, respectively, which totaled 150, and divided by 4, to find an average of 37.5. Dr. MacEwan found 18.75 percent right ear monaural hearing loss. For the left ear, she added appellant’s hearing loss of 20, 40, 55, and 75 dBs at 500, 1,000, 2,000, and 3,000 Hz, respectively, which totaled 190 and divided by 4 to find an average of 47.5. Dr. MacEwan found 33.75 percent left ear monaural hearing loss. She calculated binaural hearing impairment of 21.25. Dr. MacEwan completed a tinnitus handicap inventory (THI) and rated the tinnitus diagnosis at four percent. She arrived at a total binaural hearing impairment rating of 25.25 percent due to severe tinnitus. Dr. MacEwan concluded that appellant reached maximum medical improvement (MMI) on August 10, 2021.

By decision dated October 7, 2021, OWCP accepted appellant’s claim for aggravation of bilateral tinnitus.

On October 10, 2023, appellant filed a claim for compensation (Form CA-7) for a schedule award.

On October 20, 2023, OWCP referred the medical record and SOAF to Dr. Jeffrey M.
Israel, a Board-certified otolaryngologist serving as an OWCP district medical adviser (DMA), to determine the extent of appellant’s hearing loss and permanent impairment due to his employment- related noise exposure.

In an October 27, 2023 report, Dr. Israel reviewed the evidence of record and applied the audiometric data to OWCP’s standard for evaluating hearing loss under the sixth edition of the A.M.A., Guides4 to Dr. MacEwan’s report and August 10, 2021 audiology findings. He opined that the audiometric records revealed patterns suggestive of sensorineural hearing loss due, at least in part to, noise-induced work-related acoustic trauma. Dr. Israel determined that appellant sustained right monaural loss of 18.75 percent, left monaural loss of 33.75 percent, and binaural hearing loss of 21.3 percent, noting an additional tinnitus award of 4 percent would be given for 25.3 percent binaural hearing loss. He concurred with Dr. MacEwan’s calculations, and her rating of four percent binaural hearing loss for tinnitus. Dr. Israel recommended yearly audiograms, noise protection, and hearing aids for hearing loss and tinnitus. He determined that appellant had reached MMI on August 10, 2021, the date of the most recent audiogram and Dr. MacEwan’s examination.

3
A.M.A., Guides (6 th ed. 2009).
4
Id.

3
On January 16, 2024, OWCP referred the medical record and SOAF to Dr. James Butler, a Board-certified otolaryngologist serving as a DMA, to determine the extent of appellant’s hearing loss and permanent impairment due to his employment-related noise exposure.

In a report dated February 1, 2024, Dr. Butler did not concur that appellant’s hearing loss was aggravated by his federal employment. He advised that it was not exacerbated by appellant’s employment as there was no change from his preemployment hearing evaluation.

In a March 6, 2024 letter, OWCP advised appellant that it proposed to rescind its acceptance of his claim for aggravation of bilateral tinnitus based on its error. It explained that Dr. MacEwan, the second opinion physician, opined that his preexisting bilateral sensorineural hearing loss was not due to or aggravated by current occupational exposure as his pure tone averages had not changed significantly; however, the preexisting bilateral tinnitus was aggravated by noise exposure during federal employment. OWCP indicated that based on this report the tinnitus should not have been accepted because causal relationship had not been established. Further, it noted that Dr. Butler, the DMA, concurred that the preexisting hearing loss was not exacerbated by his employment as there was no change from the preemployment hearing evaluation. Dr. Butler’s opinion was well rationalized and established that appellant’s aggravation of bilateral tinnitus was not caused by noise exposure during federal employment.

By decision dated April 12, 2024, OWCP rescinded acceptance of the claim.

By decision dated April 12, 2024, OWCP denied appellant’s schedule award claim, finding that the evidence of record was insufficient to establish that his accepted aggravation of bilateral tinnitus was causally related to the noise exposure during federal employment. 5

Appellant appealed to the Board. By order dated December 3, 2024, the Board dismissed the appeal.6 The Board found that there was no final adverse decision issued by OWCP within 180 days of the filing of the instant appeal and therefore the appeal must be dismissed.

On December 12, 2024, appellant requested reconsideration. In a statement also dated December 12, 2024, he disagreed with the April 12, 2024, decision rescinding the acceptance of his claim and denying his claim for a schedule award. Appellant asserted that OWCP improperly determined that he received an overpayment of compensation of $20,885.20. He indicated that his claim was not a stand-alone bilateral tinnitus claim as he was suffering from severe hearing loss due to working in a machine shop. Appellant maintained the exposure to hazardous noise during his federal employment worsened his hearing loss and tinnitus. He requested that OWCP cancel any debt owed by him.

In support of his claim, appellant submitted an audiology evaluation from the VA dated December 12, 2024.

5
On May 15, 2024 OWCP issued a preliminary overpayment determination that appellant received an overpayment of compensation in the amount of $20,885.12 for the period December 3, 2021 through June 5, 2022 because he received temporary total disability compensation for a work injury that was accepted and then rescinded. 6 Order Dismissing Appeal, Docket No. 25-0081 (issued December 3, 2024).

4
By decision dated December 27, 2024, OWCP denied appellant’s request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

LEGAL PRECEDENT

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether to review an award for or against compensation. The Secretary of Labor may review an award for or against compensation at any time on his or her own motion or on application.7

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.8

A request for reconsideration must be received by OWCP within one year of the date of OWCP’s decision for which review is sought. 9 If it chooses to grant reconsideration, it reopens and reviews the case on its merits. 10 If the request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will deny the request for reconsideration without reopening the case for review on the merits. 11

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

With his request for reconsideration, appellant provided a statement disagreeing with the April 12, 2024 decisions rescinding the acceptance of his claim and denying his claim for a schedule award. He asserted that OWCP improperly determined that he received an overpayment of compensation of $20,885.20. Appellant indicated that his claim was not a stand-alone bilateral tinnitus claim as he was suffering from severe hearing loss due to exposure to hazardous noise during his federal employment that worsened his hearing loss and tinnitus. However, appellant’s argument does not advance a new legal argument not previously considered, nor show that OWCP

7
5 U.S.C. § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008). 8 20 C.F.R. § 10.606(b)(3); see L.D., id.; see also K.L., Docket No. 17-1479 (issued December 20, 2017); C.N., Docket No. 08-1569 (issued December 9, 2008). 9 Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020). 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. 10 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).
11
Id. at § 10.608(b); M.S., Docket No. 19-0291 (issued June 21, 2019); E.R., Docket No. 09-1655 (issued March 18, 2010).

5 erroneously applied or interpreted a specific point of law. Rather, his argument is cumulative, duplicative, and/or repetitive in nature and insufficient to warrant reopening the claim for merit review.12 Thus, appellant is not entitled to a review of the merits of h is claim based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3). 13

On reconsideration, appellant submitted an audiogram signed by an audiologist dated December 12, 2024. While this evidence is new, it is not relevant because it does not directly address the underlying issue of the present case, i.e. causal relationship between the diagnosed condition and the accepted employment factors. The Board has held that the submission of evidence or argument, which does not address the particular issue involved does not constitute a basis for reopening a case. 14 As such, this evidence is insufficient to warrant merit review. Therefore, the above evidence does not constitute relevant and pertinent new evidence not previously considered by OWCP and appellant was not entitled to a merit review of h is claim based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3). 15

The Board, accordingly, finds that appellant has not met any of the requirements under 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

12
J.V., Docket No. 19-1554 (issued October 9, 2020); see T.B., Docket No. 16-1130 (issued September 11, 2017);
Eugene F. Butler, 36 ECAB 393, 398 (1984).
13
G.Q., Docket No. 18-1697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).
14
J.R., Docket No. 19-1280 (issued December 4, 2019); M.K., Docket No. 18-1623 (issued April 10, 2019);
L.D., Docket No. 18-1468 (issued February 11, 2019); Edward Matthew Diekemper, 31 ECAB 224-25 (1979). 15 Id.

6
ORDER

IT IS HEREBY ORDERED THAT the December 27, 2024 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 11, 2025
Washington, DC

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

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

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

7