United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.L., Appellant 

and 

DEPARTMENT OF JUSTICE, U.S. MARSHALS 

SERVICE, Las Vegas, NV, Employer 

__________________________________________ 

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Docket No. 14-155 

Issued: May 9, 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 28, 2013 appellant filed a timely appeal from the May 30, 2013 merit 

decision of the Office of Workers’ Compensation Programs (OWCP), which awarded schedule 

compensation. Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. 

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

also has jurisdiction to review OWCP’s June 18, 2013 merit decision denying modification and 

OWCP’s October 4, 2013 nonmerit decision denying appellant’s reconsideration request. 

ISSUES 

The issues are: (1) whether appellant had more than a 17 percent binaural hearing loss 

through February 1, 2012; and (2) whether OWCP properly denied appellant’s August 15, 2013 

reconsideration request. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On January 25, 2010 appellant, a 49-year-old deputy U.S. Marshal, filed an occupational 

disease claim alleging that the ringing in his ears and significant hearing loss were a result of his 

exposure to hazardous noise at the firing range. OWCP accepted his claim for bilateral 

sensorineural hearing loss. 

Dr. Ashley Sikand, a Board-certified otolaryngologist, related appellant’s history and 

evaluated his hearing. The otologic examination was normal. Audiometric testing obtained on 

February 1, 2012 revealed symmetric high-frequency sensorineural hearing loss. Dr. Sikand 

diagnosed noise-induced hearing loss with secondary tinnitus. 

An OWCP medical consultant reviewed appellant’s records, including earlier 

audiograms. It was his opinion that the condition found on Dr. Sikand’s evaluation was 

aggravated by conditions of federal employment. Hearing thresholds at 500, 1,000, 2,000 and 

3,000 hertz (Hz) were 15, 25, 30 and 75 decibels (dB) on the right and 15, 25, 30 and 60 dB on 

the left. The medical consultant calculated that appellant had a 12 percent binaural hearing loss 

under the American Medical Association, Guides to the Evaluation of Permanent Impairment

(A.M.A., Guides) (6th ed. 2009). As appellant’s tinnitus was severe and impacted on quality of 

life, the medical consultant added 5 percent for a total binaural hearing impairment of 17 percent. 

On May 30, 2013 OWCP issued a schedule award for a 17 percent binaural hearing loss. 

Appellant requested reconsideration. He considered the rating to be insufficient and 

asked for a review of all information from 1995 to the present. Appellant submitted the results 

of an audiometric evaluation obtained on April 24, 2013, which he noted showed a profound loss 

and severe tinnitus. 

OWCP reviewed the merits of appellant’s case on June 18, 2013 and denied modification 

of its prior decision. It found that his lay opinion had no probative value and that he had 

submitted no report from an otolaryngologist addressing any defect in the report of OWCP 

medical consultant. OWCP noted that, as appellant continued to be exposed to gunfire at work, 

he could file a claim for an additional schedule award based on additional exposure to the same 

work factors. “This constitutes a new claim and should be handled as such.” 

On August 15, 2013 appellant again requested reconsideration. OWCP received this 

request on August 23, 2013. Referencing OWCP’s guidance concerning a new claim, appellant 

submitted copies of audiograms and examinations from February 1, 2012 to May 9, 2013 as 

“new evidence of continuing injury.” 

In a decision dated October 4, 2013, OWCP denied appellant’s request. It found the 

medical documentation repetitious. OWCP also found that new evidence regarding tinnitus was 

irrelevant or immaterial. 
3

LEGAL PRECEDENT -- ISSUE 1 

The schedule award provision of FECA2 and its implementing regulations,3 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment from 

loss or loss of use, of scheduled members or functions of the body. However, FECA does not 

specify the manner in which the percentage of loss shall be determined. For consistent results 

and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A., 

Guides as the uniform standard applicable to all claimants.4 As of May 1, 2009, it uses the sixth 

edition of the A.M.A., Guides to calculate schedule awards.5

OWCP evaluates industrial hearing loss in accordance with the standards contained in the 

A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each 

frequency are added up and averaged. Then, a fence of 25 dB is deducted because, as the 

A.M.A., Guides points out, losses below 25 dB result in no change in the ability to hear everyday 

sounds under everyday listening conditions. The remaining amount is multiplied by a factor of 

1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by 

calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied 

by five, then added to the greater loss and the total is divided by six to arrive at the amount of 

binaural hearing loss.6

 The Board has concurred in OWCP’s adoption of this standard for 

evaluating hearing loss.7

If tinnitus interferes with activities of daily living, including sleep, reading and other 

tasks requiring concentration, enjoyment of quiet recreation and emotional well-being, up to five 

percent may be added to a measurable binaural hearing impairment.8

ANALYSIS -- ISSUE 1 

Dr. Sikand, the otolaryngologist, obtained audiometric testing on February 1, 2012. 

Hearing thresholds at 500, 1,000, 2,000 and 3,000 Hz were 15, 25, 30 and 75 dB on the right, for 

an average of 36.25. Deducting the fence of 25 dB leaves 11.25. Multiplying by a factor of 1.5 

gives a monaural hearing loss of 17 percent on the right. 

 2

 5.U.S.C. § 8107. 

3

 20 C.F.R. § 10.404. 

4 Id. at § 10.404(a). 

5

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5(a) (February 2013); Federal (FECA) Procedure Manual Part 3 -- Medical, Schedule Awards, 

Chapter 3.700.2 and Exhibit 1 (January 2010). 

6

 A.M.A., Guides 250-51. 

7 J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009). 

8

 A.M.A., Guides 249. 
4

Hearing thresholds at those same frequencies were 15, 25, 30 and 60 dB on the left, for 

an average of 32.5. Deducting the fence of 25 dB leaves 7.5. Multiplying by a factor of 1.5 

gives a monaural hearing loss of 11 percent on the left. 

Multiplying the lesser loss by 5 (11 percent x 5 = 55), adding the greater loss (55 + 17 = 

72) and dividing the total by 6 gives a binaural hearing loss of 12 percent (72 / 6 = 12). 

Finding that tinnitus interfered with appellant’s activities of daily living, OWCP awarded 

an additional five percent, which is the maximum additional impairment permissible for tinnitus 

under the A.M.A., Guides. 

An OWCP medical consultant reviewed Dr. Sikand’s report and found appellant to have 

a 17 percent binaural hearing impairment. Accordingly, the Board finds that appellant has no 

more than a 17 percent binaural hearing loss through February 1, 2012. The Board will therefore 

affirm OWCP’s May 30, 2013 schedule award decision.

Appellant felt that the schedule award he received for hearing loss and tinnitus was 

insufficient, but the evaluation of permanent impairment is a medical issue determined by a 

qualified physician and the application of procedures set forth in the sixth edition of the A.M.A., 

Guides. Dr. Sikand is a Board-certified otolaryngologist, who reviewed appellant’s previous 

audiograms. It was the most recent audiogram, obtained on February 1, 2013, that best reflected 

his current condition. As OWCP indicated, later evaluations reflecting continuing exposure to 

hazardous noise showed no error in the May 30, 2013 schedule award. Those evaluations may 

be addressed by filing a Form CA-7 claim for a schedule award based on additional hearing loss 

after February 1, 2013. As that is a separate issue, the Board will affirm OWCP’s June 18, 2013 

decision to deny modification of the May 30, 2013 schedule award. 

Appellant may request a schedule award or increased schedule award based on evidence 

of a new exposure or medical evidence showing progression of an employment-related condition 

resulting in permanent impairment or increased impairment. 

LEGAL PRECEDENT -- ISSUE 2 

OWCP may review an award for or against payment of compensation at any time on its 

own motion or upon application.9

 An employee (or representative) seeking reconsideration 

should send the request for reconsideration to the address as instructed by OWCP in the final 

decision. The request for reconsideration, including all supporting documents, must be in 

writing and must set forth arguments and contain evidence that either: (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.10

 9

 5 U.S.C. § 8128(a). 

10 20 C.F.R. § 10.606. 
5

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP decision for which review is sought.11 A timely request for reconsideration may be 

granted if OWCP determines that the employee has presented evidence or argument that meets at 

least one of these standards. If reconsideration is granted, the case is reopened and the case is 

reviewed on its merits. Where the request is timely but fails to meet at least one of these 

standards, OWCP will deny the request for reconsideration without reopening the case for a 

review on the merits.12

ANALYSIS -- ISSUE 2 

OWCP received appellant’s August 15, 2013 reconsideration request within one year of 

the most recent merit decision on June 28, 2013. Appellant’s request was therefore timely. The 

question for determination is whether that request met at least one of the standards for obtaining 

a merit review of his case. 

Appellant’s request did not show that OWCP erroneously applied or interpreted a specific 

point of law. He did not identify a specific point of law or show that OWCP erroneously applied 

or interpreted it. Appellant did not advance a relevant legal argument not previously considered 

by OWCP. He simply indicated that he was attempting to follow OWCP’s guidance on 

submitting a new claim for additional exposure. A claimant may be entitled to a merit review by 

submitting evidence that constitutes relevant and pertinent new evidence not previously 

considered by OWCP, but audiograms and examinations from February 1 to May 9, 2013 are not 

relevant and pertinent to the May 30, 2013 schedule award, which awarded compensation for 

appellant’s hearing loss through February 1, 2012. 

The Board finds that appellant’s August 15, 2013 reconsideration request did not meet 

any of the standards for obtaining a merit review of his case. The Board will therefore affirm 

OWCP’s October 4, 2013 decision to deny that request. 

CONCLUSION 

The Board finds that appellant has no more than a 17 percent binaural hearing loss 

through February 1, 2012. The Board further finds that OWCP properly denied his August 15, 

2013 reconsideration request. 

 11 Id. at § 10.607(a). 

12 Id. at § 10.608. 
6

ORDER 

IT IS HEREBY ORDERED THAT the October 4, June 18 and May 30, 2013 decisions 

of the Office of Workers’ Compensation Programs are affirmed. 

Issued: May 9, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board