United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer 

__________________________________________ 

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Docket No. 15-1523 

Issued: December 21, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On July 7, 2015 appellant filed a timely appeal of a January 22, 2015 merit decision and a 

February 26, 2015 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). 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.2

ISSUES 

The issues are: (1) whether appellant met his burden of proof to establish hearing loss 

causally related to his employment duties; and (2) whether OWCP properly refused to reopen 

appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the January 22, 2015 decision, OWCP received additional evidence. Appellant 

also submitted new evidence with his appeal to the Board. However, the Board may only review evidence that was 

in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 

(issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 

281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 
2

On appeal appellant contends that OWCP failed to review the medical evidence 

submitted with his reconsideration request. He also argues that OWCP prematurely closed his 

case and that the employing establishment failed to provide OWCP with preemployment 

screening tests as requested by OWCP and appellant. 

FACTUAL HISTORY 

On July 24, 2014 appellant, then a 46-year-old tractor trailer operator, filed an 

occupational disease claim (Form CA-2) alleging that on May 7, 2002 he first became aware of 

his hearing loss. It was not until May 12, 2002 that he realized his employment duties and 

exposure to a very loud noise at the industrial facility was the cause of his bilateral hearing loss. 

Appellant stated that prior to starting work with the employing establishment he had to pass a 

hearing test. He last worked as a tractor trailer operator on September 27, 2011 and January 21, 

2013 was the last day appellant worked for the employing establishment. 

In support of his claim, appellant submitted audiological evaluation tests for the period 

May 7, 2002 to June 13, 2014. 

By letter dated August 20 2014, OWCP informed appellant that the evidence of record 

was insufficient to support his claim. Appellant was advised as to the medical and factual 

evidence required and afforded 30 days to provide the requested information. 

In a letter dated August 20, 2014, OWCP requested that the employing establishment 

provide evidence which included sources of noise exposure, job sites where noise exposure 

allegedly occurred, a noise survey report including frequency and decibel level, types of ear 

protection provided, and a copy of all medical examinations pertaining to appellant’s ear or 

hearing problems, including all audiograms and preemployment examination. 

In an April 20, 2007 medical examination report for commercial driver fitness 

determination, Dr. Eva Ostrowski, an employing establishment contract physician, provided a 

health history, comments on appellant’s health history, and physical examination findings. 

Under comments, she noted appellant’s decreased hearing and reported that an audiogram was 

ordered to determine whether appellant met Department of Transportation (DOT) criteria. 

In a May 4, 2007 letter, Dr. Ostrowski informed the employing establishment that 

appellant was medically disqualified from driving a tractor trailer based on DOT medical fitness 

guidelines. 

On September 29, 2014 OWCP received appellant’s response to questions posed. 

Appellant noted that September 27, 2011 was the last day of exposure, and that he got hearing 

aids in 2008. He reported that it was on August 3, 2008 when he received his hearing aids, that 

he first realized that his hearing loss could be employment related. Appellant further noted that 

when he started his employment in 1996 he had perfect hearing and DOT required an annual 

physical and hearing evaluation. 

On October 20, 2014 OWCP referred appellant for a second opinion evaluation with 

Dr. T.K. Venkatesan, a Board-certified otolaryngologist, to address appellant’s hearing loss. 
3

Dr. Venkatesan completed an undated outline for otologic evaluation (Form CA-1332), 

submitted a November 5, 2014 audiogram, and diagnosed bilateral sensorineural hearing loss. In 

the CA-1332 form, Dr. Venkatesan noted that no audiometric data was provided with respect to 

appellant’s hearing at the beginning of his federal employment. He reported appellant’s 

sensorineural hearing loss was greater than what would be predicted by presbycusis. However, 

Dr. Venkatesan was unable to conclude whether the hearing loss was employment related as 

there was no baseline data and the first audiogram was 16 years after first exposure. He opined 

that causation of the hearing loss could not be determined without job site noise ratings recorded 

at the time and audiometric data performed during appellant’s years of employment. In 

concluding, Dr. Venkatesan checked a box that the bilateral sensorineural hearing loss was not 

due to federal employment noise exposure. In support of this conclusion, he reiterated that as no 

baseline audiometric data before 1996 was provided for review that he was “unable to track 

origin [and] progression of hearing loss.” 

By decision dated January 22, 2015, OWCP denied appellant’s claim as it found the 

medical evidence failed to establish that his hearing loss was caused or aggravated by his 

employment. 

In a form dated January 22, 2015, appellant requested reconsideration and stated that new 

evidence was attached. No evidence was received with the reconsideration form. 

By decision dated February 26, 2015 OWCP denied reconsideration and noted that no 

evidence had been received with his request. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA3

 has the burden of establishing the essential 

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

within the meaning of FECA; that the claim was filed within the applicable time limitation; that 

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

and/or specific condition for which compensation is claimed are causally related to the 

employment injury.4

 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5

 

To establish that an injury was sustained in the performance of duty in a claim for 

occupational disease, 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 

 3

 5 U.S.C. § 8101 et seq. 

4 C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006). 

5 S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989). 
4

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

condition is causally related to the employment factors identified by the employee.6 

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

establish causal relationship is rationalized medical opinion evidence.7

 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on 

whether there is a causal relationship between the employee’s diagnosed condition and the 

compensable employment factors.8

 The opinion of the physician must be based on a complete 

factual and medical background of the employee, 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 employee.9

 

ANALYSIS -- ISSUE 1 

It is undisputed that appellant was exposed to noise for a number of years in the course of 

his federal employment as a tractor trailer operator. On January 22, 2015 OWCP denied the 

claim finding that the medical evidence did not support that the hearing loss was causally related 

to workplace noise exposure. It based its decision on the reports of the second opinion 

physician, Dr. Venkatesan, who performed an evaluation on November 5, 2014. The Board 

finds that this case is not in posture for decision as to whether appellant’s hearing loss was 

causally related to his employment noise exposure. 

In assessing medical evidence, the weight of such evidence is determined by its 

reliability, its probative value, its convincing quality, and the factors which enter into such an 

evaluation, including the opportunity for and thoroughness of examination, the accuracy and 

completeness of the physician’s knowledge of the facts and medical history, the care of the 

analysis manifested, and the medical rationale expressed in support of the physician’s opinion.10 

In the undated CA-1332 form, Dr. Venkatesan noted that no audiometric data pertaining to 

appellant’s hearing at the beginning of his federal employment had been priority. He reported 

that appellant’s sensorineural hearing loss was greater than what could be attributed to 

presbycusis, but, based on the medical and factual evidence OWCP provided, he was unable to 

determine whether appellant’s hearing loss was employment related. Dr. Venkatesan noted that 

the first audiogram was 16 years after appellant’s first employment-related noise exposure and 

there was no baseline data. As such, he found that appellant’s bilateral sensorineural hearing 

loss was not due to federal employment noise exposure. 

 6 D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238 

(2005); Donald W. Wenzel, 56 ECAB 390 (2005). 

7 Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 

642 (2006). 

8 J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006). 

9 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989). 

10 See C.M., Docket No. 09-1268 (issued January 22, 2010); K.W., 59 ECAB 271 (2007); Michael S. Mina, supra

note 8. 
5

Dr. Venkatesan’s report is insufficient to resolve the question of whether appellant’s 

workplace noise exposure caused or contributed to his hearing loss.11 The Board has held that, 

when OWCP refers a claimant for a second opinion evaluation and the report does not 

adequately address the relevant issues, OWCP should secure an appropriate report on the 

relevant issues.12 

The record before the Board contains audiograms beginning May 7, 2002. It is well 

established that proceedings under FECA are not adversarial in nature, nor is OWCP a 

disinterested arbiter.13 While appellant has the burden to establish entitlement to compensation, 

OWCP shares responsibility in the development of the evidence to see that justice is done.14 

When OWCP undertakes to develop the medical aspects of a case, it must exercise extreme care 

in seeing that its administrative processes are impartially and fairly conducted.15

The case is remanded for OWCP to provide the entire record to OWCP’s medical adviser 

and request an updated medical opinion. Following this and such other development as deemed 

necessary, OWCP shall issue a de novo decision. 

CONCLUSION 

The Board finds that this case is not in posture for decision. In light of the Board’s 

disposition on the first issue, the second issue is moot. 

 11 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).

12 Peter C. Belkind, 56 ECAB 580 (2005) (when OWCP refers a claimant for a second opinion evaluation and the 

report does not adequately address the relevant issues, OWCP should secure an appropriate report on the relevant 

issues). 

13 R.B., Docket No. 08-1662 (issued December 18, 2008); A.A., 59 ECAB 726 (2008); Donald R. Gervasi, 57 

ECAB 281 (2005); Vanessa Young, 55 ECAB 575 (2004). 

14 D.N., 59 ECAB 576 (2008); Richard E. Simpson, 55 ECAB 490 (2004). 

15 See P.K., Docket No. 08-2551 (issued June 2, 2009); supra note 12. 
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ORDER 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ 

Compensation Programs dated January 22 and February 26, 2015 are set aside and the case 

remanded for further proceedings consistent with the above opinion. 

Issued: December 21, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board