United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.G., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL SEA 

SYSTEMS COMMAND STATIONS, 

Keyport WA, Employer 

__________________________________________ 

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Docket No. 15-0702 

Issued: August 27, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On February 11, 2015 appellant filed a timely appeal from a January 27, 2015 merit 

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. 

ISSUE 

The issue is whether appellant met his burden of proof to establish hearing loss causally 

related to factors of his federal employment. 

FACTUAL HISTORY 

On June 18, 2014 appellant, then a 61-year-old engineering technician, filed an 

occupational disease claim (Form CA-2) alleging hearing loss as a result of exposure to noise at 

 1

 5 U.S.C. § 8101 et seq. 
2

his work. He became aware of his condition and of its relationship to his employment on 

September 1, 2009. A supervisor noted that appellant had retired on April 2, 2010 and that his 

condition was first reported on June 16, 2014. 

Appellant submitted an employment history dated June 6, 2014. He noted that, from 

1972 through 1976, he was employed by the U.S. Navy, and was exposed to noise from engines 

for eight hours a day without hearing protection. From December 1976 through April 2010, 

appellant was employed by the employing establishment, where he was exposed to noise from 

ventilation fans and pounding for eight hours a day, and that he used hearing protection provided 

by the employing establishment during this period. He noted that he was last exposed to 

hazardous noise in April 2010. 

Appellant also submitted an audiometric evaluation dated June 5, 2014. 

By letter dated June 23, 2014, OWCP advised appellant of the evidence needed to 

establish his claim. 

Appellant submitted hearing conservation data between December 7, 1976 and 

September 2, 2009. 

By letter dated July 8, 2014, appellant explained that he had annual hearing tests while 

working for the employing establishment. He wrote, “My Supervisor was advised that I needed 

to go back to take another test after changes in my hearing were reported.” 

On July 29, 2014 OWCP referred appellant to an otolaryngologist to obtain a second 

opinion evaluation of the cause and nature of his hearing loss. 

In a report dated August 27, 2014, Dr. Julie A. Gustafson, a Board-certified 

otolaryngologist, examined appellant, reviewed his medical records, and analyzed the results of 

an audiogram performed on that date. She found mild high-frequency sensorineural hearing loss 

of the left ear and mild-to-severe sensorineural hearing loss of the right ear. Dr. Gustafson 

noted, “The right ear hearing loss is not consistent with a noise-induced loss, particularly not 

from the reports of intensity and duration of the exposure reported in the workplace. This is 

particularly evident, since the left ear does not show the same associate loss.” Dr. Gustafson 

stated that appellant’s hearing loss was not due to noise exposure in federal civilian employment. 

She also stated, “For the minimal decrease in hearing in the left ear, noted on audiometric 

evaluation today, the workplace exposure is of sufficient intensity and duration to have caused 

the acoustic notch at 4,000 [hertz (Hz)] in the left ear.” 

By letter dated September 5, 2014, OWCP requested clarification from Dr. Gustafson 

regarding whether appellant sustained any hearing loss as a result of his exposure to noise during 

federal employment. In particular, it asked her to explain the relevance of her findings as to 

appellant’s left ear. 

On September 22, 2014 Dr. Gustafson stated that the inconsistency in her opinions 

expressed was due to the lack of audiometric data available for the time at which appellant 

ceased employment. She noted that an audiometric evaluation from 2011 had been mentioned in 

the case record, but that the audiometric evaluation was not available. Dr. Gustafson wrote, “If 
3

the decrease in hearing as seen on the audiometric evaluation of February 2014 was present at 

the time of [appellant’s] retirement, then the opinion would be that he had experienced workrelated hearing loss. If the audiometric evaluation around the time of [appellant’s] retirement 

does not show a greater than 25 decibel loss out of 4,000 [Hz,] then he did not experience a 

work-related hearing loss.... The supplied audiometric data stops eight years prior to [his] 

retirement. At the time of his last supplied audiogram, appellant did not have a hearing loss in 

the left ear. At the time of our evaluation four years following his retirement, he does have a 

hearing loss in the left ear.” 

On October 3, 2014 OWCP forwarded Dr. Gustafson’s report and her letter of 

clarification to a district medical adviser (DMA) for review. The DMA responded that the 

audiometry from 2011 should be requested and obtained, if possible, as it was quite close to the 

date of appellant’s retirement. He wrote, “It is not possible to [speculate] on the work[-]related 

hearing loss based solely on the 2014 audiogram without an attempt to obtain the 2011 

audiogram much closer to the date of federal retirement.” 

By letter dated December 2, 2014, OWCP requested that appellant submit the hearing 

examination from 2011 to the case record. 

Appellant responded by letter dated December 8, 2014, noting that the examination 

actually took place in 2012. He submitted a copy of the audiometry results, dated 

January 11, 2012. 

OWCP forwarded the January 11, 2012 audiometry results to a DMA for review. The 

DMA indicated that they should be sent to Dr. Gustafson for analysis as to whether there was 

any ratable hearing loss in either ear. 

In a supplemental report dated January 13, 2015, Dr. Gustafson examined the audiometry 

results January 11, 2012. She stated, “The audiogram of 2012 shows no evidence of hearing loss 

with the lowest level of hearing being at 20 decibels, which is above the threshold for loss of 25 

decibels.... In conclusion, on a more probable than not basis, it is my opinion that [appellant] has 

not suffered a hearing loss due to industrial noise exposure, particularly none due to his work as 

a [c]ivilian [f]ederal [e]mployee.” 

By decision dated January 27, 2015, OWCP denied appellant’s claim for compensation. 

It found that the medical evidence failed to establish a work-related injury. OWCP accepted that 

appellant was a federal civilian employee who filed a timely claim; that the employment factors 

occurred; that a medical condition had been diagnosed; and that he was within the performance 

of duty. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of establishing 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 filed within the applicable time 

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

disability or specific condition for which compensation is claimed is causally related to the 
4

employment injury.2

 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or occupational disease.3

 

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

presence or existence of the disease or condition for which compensation is claimed; (2) a factual 

statement identifying employment factors alleged to have caused or contributed to the presence 

or occurrence of the disease or condition; and (3) medical evidence establishing that the 

employment factors identified by the claimant were the proximate cause of the condition for 

which compensation is claimed or, stated differently, medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the claimant. 

The claimant has the burden of establishing by the weight of reliable, probative, and 

substantial evidence that the condition for which compensation is sought is causally related to a 

specific employment incident or to specific conditions of employment.4 An award of 

compensation may not be based on appellant’s belief of causal relationship. Neither the mere 

fact that a disease or condition manifests itself during a period of employment nor the belief that 

the disease or condition was caused or aggravated by employment factors or incidents is 

sufficient to establish a causal relationship.5

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

establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s reasoned opinion on whether 

there is a causal relationship between the claimant’s diagnosed condition and the compensable 

employment factors. The opinion of the physician must be based on a complete factual and 

medical background of the claimant, 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

 2 Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

3 Michael E. Smith, 50 ECAB 313, 315 (1999). 

4 Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996). 

5 P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997). 

6 Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005). 

7 Leslie C. Moore, 52 ECAB 132, 134 (2000). 

8

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959). 
5

ANALYSIS 

OWCP accepted that appellant was a federal civilian employee who filed a timely claim; 

that the employment factors occurred; that a medical condition had been diagnosed; and that he 

was within the performance of duty. It denied his claim finding that the medical evidence did 

not establish a causal relationship between factors of his federal employment and his hearing 

loss. The Board finds that appellant has not met his burden of proof to establish that his 

condition was causally related to duties of his federal employment. 

The Board notes that in its initial development letter, OWCP stated that appellant’s claim 

for compensation was untimely filed. However, appellant submitted hearing conservation data 

gathered during his time at the employing establishment. In cases of injury on or after 

September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation 

for disability or death must be filed within three years after the injury or death. Compensation 

for disability may not be allowed if a claim is not filed within that time unless: (1) the 

immediate superior had actual knowledge of the injury or death within 30 days. The knowledge 

must be such as to put the immediate superior reasonably on notice of an on-the-job injury or 

death; or (2) written notice of injury or death as specified in section 8119 was given within 30 

days.9

 

The Board has held that a program of annual audiometric examinations conducted by an 

employing establishment in conjunction with an employee testing program for hazardous noise 

exposure is sufficient to constructively establish actual knowledge of a hearing loss, such as to 

put the immediate supervisor on notice of an on-the-job injury.10 As appellant was enrolled in a 

hearing conservation program with the employing establishment, and submitted records of 

annual audiograms, the employing establishment had actual knowledge of his purported hearing 

loss. As such, OWCP properly found appellant’s claim timely filed in its January 27, 2015 

decision. 

Regarding the issue of causal relationship, in a report dated January 13, 2015, 

Dr. Gustafson examined a January 11, 2012 audiogram and found it showed no evidence of 

hearing loss with the lowest level of hearing being at 20 decibels, which is above the threshold 

for loss of 25 decibels. He noted, “In conclusion, on a more probable than not basis, it is my 

opinion that [appellant] has not suffered a hearing loss due to industrial noise exposure, 

particularly none due to his work as a [c]ivilian [f]ederal [e]mployee.” 

The Board has recognized that a claimant may be entitled to a schedule award for hearing 

loss, even after exposure to hazardous noise has ceased, if causal relationship is supported by the 

medical evidence of record.11 There is no medical evidence before OWCP at the time of its 

January 27, 2015 decision containing an opinion that appellant’s hearing loss was work related. 

The only medical evidence containing a definitive opinion as to the relation of his hearing loss 

 9

 5 U.S.C. § 8122(a). 

10 G.C., Docket No. 12-1783 (issued January 29, 2013). 

11 See J.R., 59 ECAB 710, 713 (2008). 
6

and factors of his federal employment, the January 13, 2015 report of Dr. Gustafson, stated that 

his hearing loss was not related to industrial noise exposure. The Board finds that appellant has 

not submitted any medical evidence supportive of a causal relationship between his federal 

employment and his hearing loss, and thus has not met his burden to establish such a causal 

relationship.12

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish that his 

hearing loss was causally related to his federal employment. 

ORDER 

IT IS HEREBY ORDERED THAT the January 27, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 27, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 12 See R.S., Docket No. 14-1995 (issued February 25, 2015).