United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.H., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS AND BORDER PATROL, 

Mayaguez, PR, Employer 

__________________________________________ 

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Docket No. 14-1201 

Issued: October 8, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On April 29, 2014 appellant filed a timely appeal from a December 23, 2013 merit 

decision and a March 28, 2014 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 a hearing loss 

in the performance of duty; and (2) whether OWCP properly denied his request for 

reconsideration. 

 1

 5 U.S.C. § 8101 et seq. 

2

 On appeal, appellant submitted additional facts. The Board may not consider this evidence for the first time on 

appeal. See 20 C.F.R. § 501.2(c). 
2

FACTUAL HISTORY 

On October 7, 2013 appellant, then a 59-year-old customs and border patrol supervisor, 

filed an occupational disease claim, alleging that he sustained hearing loss in the performance of 

duty. He first became aware of his condition and its relation to his federal employment on 

August 28, 2013. Appellant did not stop work. 

On November 20, 2013 OWCP advised appellant that the evidence submitted was 

insufficient to establish that he actually experienced the employment factors alleged to have 

caused the injury. It requested that he provide additional information including: whether he 

previously filed a claim for hearing loss; all hobbies that involved exposure to loud noise; an 

estimate of how many hours a year he engaged in such hobbies; any past problems with hearing 

loss and his employment history with details regarding his exposure to loud noise. By letter 

dated November 20, 2013, OWCP also requested appellant’s employing establishment to provide 

information including: comments from his supervisor; the job sites where noise exposure 

occurred; the source of the exposure, decibel and frequency level for each job site and the type of 

ear protection used. 

In a November 29, 2013 response, appellant noted that he rode motorcycles as a hobby. 

He rode for two hours at least 10 Sundays a year, for a total of 60 hours in the past three years. 

Appellant did not use hearing protection while riding. He also specified that he did not have a 

hearing problem prior to being informed by a Federal Occupational Health Center. Appellant 

served in the military from 1972 to 1974, where he was exposed to M-16 firearm noise during 

basic training five hours a day for five days with earplug protection. From 1974 to 1985, he 

worked for the Puerto Rico police. Appellant was exposed to firearm noise two days a year for 

eight hours each day with earmuff protection. From 1987 to the present, he served as an 

inspector for the employing establishment. Appellant worked on airport tarmacs, where he was 

exposed to heavy continuous noise five days a week for at least five hours a day without any 

hearing protection. He also noted that for 15 years during his tenure with the employing 

establishment he worked as a firearms instructor. Appellant worked two or three eight-hour 

shifts every three months. He stated that for the first 10 years he only used earmuffs, but the 

remaining five years both earplugs and earmuffs were required. 

In an October 17, 2013 report, Dr. Mark McDowall, an audiologist, diagnosed mild high 

frequency sensorineural hearing loss bilaterally. The audiogram tested decibel losses at 500, 

1,000, 2,000 and 3,000 hertz and recorded losses of 20, 15, 25 and 35 in the left ear. Testing at 

the same levels for the right ear recorded decibel losses of 30, 20, 25 and 40. Appellant also 

submitted audiogram reports dated April, 15 1999, November 16, 2000, August 2, 2010, 

August 9, 2011 and August 28, 2013. 

In response to OWCP’s questionnaire, appellant’s supervisor stated that he agreed with 

appellant’s assertions with respect to his occupational exposure occurring after August 2004, 

when he became his immediate supervisor. Appellant worked at Mayaguez Port of Entry, which 

included a seaport and airport. His supervisor stated that appellant was exposed to high levels of 

noise, from trucks, other loud machinery and aviation sources. Appellant’s supervisor advised 

that appellant made quarterly trips to the gun range where he was exposed to firearm noise. He 
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noted that employees were required to wear earmuffs and plugs for the inner ear at the gun range, 

but stated that there were periods when only earmuffs were required. 

By decision dated December 23, 2013, OWCP denied appellant’s claim. It found the 

evidence was insufficient to establish that the occupational exposure occurred as he described. 

Further, the medical evidence failed to contain a diagnosis from a qualified physician. OWCP 

noted that appellant and the employing establishment did not provide a full description of his 

employment and hobby history as required to obtain a complete factual background. 

Following OWCP’s decision, appellant submitted an October 31, 2013 audiogram signed 

by Dr. Nancy Sahakian, Board-certified in family and occupational medicine. The report noted 

that there was a significant change from his 2005 baseline audiogram. On January 22, 2013 

appellant submitted a request for reconsideration and a letter stating that he would send 

additional information. 

By decision dated March 28, 2014, OWCP denied appellant’s request for reconsideration 

without further merit review. 

LEGAL PRECEDENT ISSUE 1 

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 

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

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

 

An employee’s statement that an injury occurred at a given time and in a given manner is 

of great probative value and will stand unless refuted by strong or persuasive evidence.6

 

Moreover, an injury does not have to be confirmed by eyewitnesses. 

 3 Elaine Pendleton, 40 ECAB 1143 (1989). 

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

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

6 Gregory J. Reser, 57 ECAB 277 (2005). 
4

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.7 

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.8

 

ANALYSIS ISSUE 1 

The Board finds that this case is not in posture for decision. 

In its December 23, 2013 decision, OWCP found that appellant provided insufficient 

detail of his noise exposure history to establish a complete factual background for his claim. It 

also found that the employing establishment’s statement was insufficient to establish the factual 

aspect of the claim. The Board notes that appellant provided a statement in response to OWCP’s 

request in which he addressed his exposure to noise from all sources. While OWCP found his 

description insufficiently detailed with regard to sources of noise outside of his federal 

employment, the record clearly supports that he was exposed to noise when he worked on an 

airplane tarmac and occasionally on a gun range. The employing establishment generally 

supported appellant’s depiction of his workplace noise exposure. It did not contest any part of 

his statement. There is no persuasive evidence which refutes that appellant had noise exposure at 

work.9

 The Board finds that he has sufficiently established his exposure to noise at work. 

OWCP denied the claim, in part, on the failure of the employing establishment to provide 

sufficient description of appellant’s employment history. The Board has held that proceedings 

under FECA are not adversarial in nature and OWCP is not a disinterested arbiter. While the 

claimant has the burden to establish entitlement to compensation, OWCP shares responsibility in 

the development of the evidence, particularly when such evidence is of the character normally 

obtained from the employing establishment or other government source.10 The Board will 

remand the case to OWCP for further development of the factual and medical evidence. OWCP 

should obtain any further factual evidence needed from the employing establishment, as well as 

any further clarification from appellant. Thereafter, it should prepare a statement of accepted 

facts that lists his history of noise exposure. OWCP should then refer appellant to an appropriate 

Board-certified specialist to obtain a rationalized medical opinion regarding whether he sustained 

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

8

 James Mack, 43 ECAB 321 (1991). 

9 See supra note 6 (an employee’s statement regarding the occurrence of an employment incident will stand 

unless refuted by strong or persuasive evidence). 

10 Robert A. Redmond, 40 ECAB 796, 800 (1989). 
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a hearing loss causally related to factors of his federal employment.11 Following this and any 

other further development as deemed necessary, OWCP shall issue a de novo decision on 

appellant’s claim. 

Given the Board’s holding with respect to the first issue presented, the second issue 

related to the denial of appellant’s request for reconsideration is moot. 

CONCLUSION 

The Board finds that this case is not in posture for decision 

ORDER 

IT IS HEREBY ORDERED THAT the March 28, 2014 and December 23, 2013 

decisions of the Office of Workers’ Compensation Programs are set aside. The case is remanded 

for further action in conformance with this decision. 

Issued: October 8, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

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

3.600.8(a) (September 1995) (provides that, unless the case file already contains a reliable medical report which 

fully meets OWCP requirements. OWCP will refer the claimant for audiological evaluation and ontological 

examination which addresses the relationship of any hearing loss to the employment and the degree of any 

permanent impairment).