United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.E., Appellant 

and 

TENNESSEE VALLEY AUTHORITY, 

PARADISE FOSSIL PLANT, Drakesboro, KY, 

Employer 

__________________________________________ 

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Docket No. 14-1249 

Issued: October 22, 2014 

Appearances: Case Submitted on the Record

Ronald K. Bruce, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On May 7, 2014 appellant, through counsel, filed a timely appeal from an April 9, 2014 

merit decision of an Office of Workers’ Compensation Programs’ (OWCP) hearing 

representative. Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish an occupational 

disease in the performance of duty. 

FACTUAL HISTORY 

On January 10, 2013 appellant, then a 69-year-old former pipefitter, filed an occupational 

disease claim alleging hearing loss due to his federal employment. He first became aware of his 

 1

 5 U.S.C. § 8101 et seq. 
2

condition on January 1, 2002. Appellant did not become aware of its relation to his federal 

employment until December 12, 2012. The employing establishment stated that he was last 

exposed to conditions alleged to have caused his condition on December 26, 1985. 

In a January 23, 2013 letter, OWCP advised appellant that the evidence was insufficient 

to establish his claim. It requested information such as: his federal and nonfederal employment 

history, his exposure to hazardous noise and previous ear/hearing problems. By letter dated 

January 23, 2013, OWCP requested that the employing establishment submit information 

including the job sites where appellant worked, the sources of noise to which he was exposed, 

the period of exposure and the decibel and frequency of any exposure. 

Appellant submitted a November 28, 2012 report from Dr. Thomas C. Logan, Boardcertified otolaryngologist, who diagnosed bilateral mild sloping to severe sensorineural hearing 

loss. Dr. Logan found that compared to appellant’s 2006 audiogram, there had been a 

generalized progression of hearing loss across most frequencies in the right ear and across the 

higher frequencies in the left ear. He advised that appellant related that his symptoms had been 

present for several years and he often had to ask people to repeat themselves. Dr. Logan noted 

that appellant has had a significant history of noise exposure, indicating that he worked at a 

power plant for 20 years. An accompanying November 28, 2012 audiogram tested decibel losses 

at 500, 1,000, 2,000 and 3,000 hertz and recorded losses of 10, 15, 30 and 60 in the left ear. 

Testing at the same levels for the right ear recorded decibel losses of 25, 25, 30 and 55. 

In an undated statement responding to OWCP’s questionnaire, appellant noted that he 

was employed by the employing establishment for four months in 1982, 10 months in 1981 and 

11 months in 1985. He claimed that he was exposed to hazardous noise from generators, pumps, 

motors, large fans, release valves, pneumatic tools and conveyor belts without ear protection. 

Appellant advised that from 1967 to 2000 he was a member of the local 633 pipefitters’ union, 

working at various fossil fuel plants, where he was exposed to the same type of hazardous noise 

he experienced at the employing establishment.2

 He noted that he began to wear earplugs in the 

late 1980’s. 

In a February 14, 2013 statement, the employing establishment advised that appellant 

worked intermittently from March 31, 1970 until December 26, 1985 for a total of 2.67 years. It 

stated that he could have only been exposed to hazardous noise from turbines, pressurizers and 

grinders for one to two hours a day, five days a week. The employing establishment also noted 

that noise level surveys indicated readings of 86 to 90 decibels at the site where appellant worked 

and earplugs were mandatory. It noted that he had audiograms performed on January 14, 1972 

and January 6, 1982, both of which showed no ratable hearing loss. 

In a February 21, 2013 report, Dr. Eric Puestow, an OWCP medical adviser stated that 

the medical record did not establish that appellant had a noise-induced hearing loss due to his 

federal employment. 

 2

 Appellant noted that he was not exposed to hazardous noise in his nonfederal positions at J.S. Cottrell Lumber 

as a lumber stacker, F.A. Ames Company as a furniture manufacturer or PPMI as a mechanical contractor. 
3

OWCP prepared a statement of accepted facts, noting appellant’s work history. It listed 

he had been exposed to noise of 86 to 90 decibels for six to seven hours a day at the employing 

establishment. OWCP referred appellant to Dr. Andrew Mickler, a Board-certified 

otolaryngologist. In a March 19, 2013 report, Dr. Mickler reviewed the statement of accepted 

facts and opined that appellant sustained bilateral sensorineural hearing loss. He concluded that 

the workplace exposure based on an eight-hour work shift was insufficient to have caused the 

loss in question. Dr. Mickler noted that appellant was not exposed to noise in excess of the 

recommended time weighted exposure of 85 decibels for an eight-hour work shift. He noted that 

there were no audiograms from the beginning or end of appellant’s federal employment to 

compare. However, the audiograms during appellant’s employment with the employing 

establishment showed no measurable hearing loss. Furthermore, Dr. Mickler stated that 

appellant’s work history was intermittent with federal and nonfederal work mingled together. 

By decision dated July 22, 2013, OWCP denied appellant’s claim. It found that 

Dr. Mickler did not support that appellant’s hearing loss was causally related to the accepted 

work exposure. 

On July 30, 2013 appellant requested an oral hearing which took place on 

January 22, 2014. 

By decision dated April 9, 2014, OWCP’s hearing representative affirmed the 

July 22, 2013 decision. She found that OWCP properly relied on Dr. Mickler’s medical report in 

determining that appellant’s hearing loss was not causally related to his federal employment. 

The hearing representative noted that the exposure data while at the employing establishment did 

not meet time weighted standard for exposure to hazardous noise. Furthermore, she advised that 

audiograms at the time of appellant’s employment did not demonstrate any ratable loss. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden to establish the essential 

elements of his or her claim, including the fact that the individual is an employee of the United 

States within the meaning of FECA, that the claim was timely filed within the applicable time 

limitation, that an injury was sustained in the performance of duty as alleged and that any 

disabilities and/or specific conditions for which compensation is claimed are causally related to 

the employment injury.3

 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4

Whether an employee actually sustained an injury in the performance of duty begins with 

an analysis of whether fact of injury has been established. To establish an occupational disease 

claim, an employee must submit: (1) a factual statement identifying employment factors alleged 

to have caused or contributed to the presence or occurrence of the disease or condition; 

(2) medical evidence establishing the presence or existence of the disease or condition for which 

 3 Elaine Pendleton, 40 ECAB 1143 (1989). 

4 Victor J. Woodhams, 41 ECAB 345 (1989). 
4

compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is 

causally related to the employment factors identified by the employee.5

 

Causal relationship is a medical issue and the evidence generally required to establish 

causal relationship is rationalized medical opinion evidence. Rationalized medical opinion 

evidence is generally required to establish causal relationship. The opinion of the physician must 

be based on a complete factual and medical background, must be one of reasonable medical 

certainty and must be supported by medical rationale explaining the nature of the relationship 

between the diagnosed condition and the specific employment factors identified by the claimant.6 

The weight of medical evidence is determined by its reliability, its probative value, its 

convincing quality, the care of analysis manifested and the medical rationale expressed in 

support of the physician’s opinion.7

 

ANALYSIS 

OWCP accepted that appellant was exposed to work-related noise while working as a 

pipefitter at the employing establishment. In its April 9, 2014 decision, it denied his 

occupational disease claim finding that the weight of medical opinion rested with Dr. Mickler, an 

OWCP referral physician, who found that appellant’s hearing loss was not causally related to the 

established employment-related noise exposure. The Board finds that this case is not in posture 

for decision. 

In his November 28, 2012 report, Dr. Logan diagnosed bilateral mild sloping to severe 

sensorineural hearing loss. He noted that appellant had a significant history of noise exposure, 

stating that he worked at power plants for 20 years. Although Dr. Logan acknowledged 

appellant’s 20 years of working at a power plant, he failed to adequately address whether he was 

referring to appellant’s federal or nonfederal work experience or explain how workplace noise 

exposure contributed to his hearing loss. Thus, this report is insufficient to establish an 

employment-related hearing loss. 

OWCP referred appellant to Dr. Mickler for a second opinion. Dr. Mickler’s 

March 19, 2013 report concluded that appellant’s federal work history did not cause his hearing 

loss because he was not exposed to the time weighted limit of 85 decibels for an eight-hour work 

shift. The Board notes that OWCP’s procedure manual states that hearing loss may result from 

decibel levels below 85 decibels if exposure is sufficiently prolonged.8

 OWCP does not require 

that the claimant show exposure to injurious noise in excess of 85 decibels as a condition to 

approval of the claim.9 Dr. Mickler’s report is of limited probative value because his medical 

 5 R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000). 

6 I.J., 59 ECAB 408 (2008); supra note 4. 

7

 James Mack, 43 ECAB 321 (1991). 

8 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 

3.600.8(a) (September 1995). See also C.S., Docket No. 10-2030 (issued June 9, 2011). 

9 Id.
5

opinion on causal relation is not adequately rationalized. He concluded that appellant’s hearing 

loss was not caused by his federal employment because his work history was intermittent with 

federal and nonfederal work mingled together. Dr. Mickler failed to explain why intermittent 

exposure up to 90 decibels did not contribute to appellant’s hearing loss.10 He was not provided 

the audiograms obtained during appellant’s employment in 1972 or 1982 for review or comment. 

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter. While the claimant has the burden to establish entitlement to 

compensation, OWCP shares the responsibility in the development of the evidence to see that 

justice is done.11 Once OWCP undertakes development of the record it must do a complete job 

in procuring medical evidence that will resolve the relevant issues in the case.12 When OWCP 

selects a physician for an opinion on causal relationship, it has an obligation to secure, if 

necessary, clarification of the physician’s report and to have a proper evaluation made.13 

Because it referred appellant to Dr. Mickler, it has the responsibility to obtain a report that will 

resolve the issue of whether his hearing loss was caused or contributed to by his federal 

employment.14

On appeal, counsel for appellant argues that Dr. Logan’s opinion should be given more 

weight than Dr. Mickler’s opinion or appellant should be referred to a referee physician. The 

deficiencies in the medical reports of record have been noted. 

The case will be remanded to OWCP for further development of the medical evidence. 

On remand, OWCP requested that the employing establishment submit the 1972 and 1982 

audiograms. It should ask Dr. Mickler to clarify his opinion on whether appellant’s hearing loss 

was caused or contributed to by the accepted level of noise exposure. Dr. Mickler should also be 

asked to provide medical rationale in support of his conclusion.15 Following this and any other 

further development deemed necessary, OWCP shall issue a de novo decision on appellant’s 

claim. 

 10 Furthermore, to the extent that Dr. Mickler implies that hearing loss is also caused by nonfederal employment, 

there is no requirement that the federal employment be the only cause of appellant’s hearing loss. An employee is 

not required to prove that occupational factors are the sole cause of his claimed condition. If work-related exposures 

caused, aggravated or accelerated appellant’s condition, he is entitled to compensation. See Beth P. Chaput, 37 

ECAB 158, 161 (1985); S.S., Docket No. 08-2386 (issued June 5, 2008). 

11 Richard Kendall, 43 ECAB 790 (1992). 

12 Phillip L. Barnes, 55 ECAB 426, 441 (2004). 

13 Alva L. Brothers, Jr., 32 ECAB 812 (1981). 

14 See Ramon K. Farrin, Jr., 39 ECAB 736 (1988). 

15 When a medical evaluation is made at its request, OWCP has the responsibility of obtaining a proper 

evaluation. Leonard Gray, 25 ECAB 147, 151 (1974). 
6

CONCLUSION 

The Board finds that this case is not in posture for a decision as to whether appellant 

developed sensorineural hearing loss in the performance of duty. 

ORDER 

IT IS HEREBY ORDERED THAT the April 9, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

consistent with this decision. 

Issued: October 22, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board