United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.N., Appellant 

and 

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA, Employer 

__________________________________________ 

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Docket No. 14-1168 

Issued: November 13, 2014 

Appearances: Case Submitted on the Record

David G. Jennings, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On April 23, 2014 appellant, through counsel, timely appealed the April 1, 2014 merit 

decision of the Office of Workers’ Compensation Programs (OWCP) which granted a schedule 

award. 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 has greater than 21.24 percent binaural hearing loss. 

FACTUAL HISTORY 

Appellant, a 68-year-old former welder, has an accepted occupational disease claim for 

bilateral sensorineural hearing loss, which arose on or about March 15, 1987.2

 OWCP accepted 

 1

 5 U.S.C. §§ 8101-8193 (2006). 

2

 Appellant retired effective December 31, 1999. 
2

the claim based on the May 29, 2013 opinion of Dr. Eugenia M.G. Gray, a Board-certified 

otolaryngologist and OWCP-referral physician. 

Dr. Gray diagnosed employment-related bilateral sensorineural hearing loss. She also 

rated a 26.25 percent binaural hearing loss, which included an additional 5 percent bilateral 

impairment due to tinnitus.3

 Dr. Gray noted a history of tinnitus began in the 1970’s. Tinnitus 

reportedly made appellant’s headaches worse, but once he began using earplugs, it helped with 

the bothersome noise and the tinnitus as well. However, earplugs did not resolve the headaches 

or tinnitus completely. Dr. Gray further noted that currently appellant’s tinnitus was most 

bothersome for him. It was nagging and irritating and kept him from sleeping. The right side 

was a little worse than the left. Appellant reported that he occasionally felt off balance because 

of the tinnitus, and sometimes associated a little mild nausea with the severity of the tinnitus. He 

would go to sleep, but when he awoke the sound never went away. 

OWCP referred Dr. Gray’s findings to a district medical adviser, Dr. Duane J. Taylor, a 

Board-certified otolaryngologist, who found 21.24 percent binaural hearing loss. Dr. Taylor also 

found that appellant reached maximum medical improvement as of May 29, 2013. His 

impairment rating mirrored Dr. Gray’s, with one exception -- he did not include impairment for 

tinnitus. 

On April 1, 2014 OWCP granted a schedule award for 21.24 percent binaural hearing 

loss. The award covered a period of 42 weeks beginning May 29, 2013. OWCP explained that 

the award was based on Dr. Taylor’s findings, which differed from Dr. Gray’s impairment rating. 

On appeal, counsel noted that Dr. Taylor provided no explanation for excluding 

Dr. Gray’s five percent rating for tinnitus. 

LEGAL PRECEDENT 

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions and organs of the body.4 FECA, 

however, does not specify the manner by which the percentage loss of a member, function or 

organ shall be determined. To ensure consistent results and equal justice under the law, good 

administrative practice requires the use of uniform standards applicable to all claimants. The 

implementing regulations have adopted the American Medical Association, Guides to the 

Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule losses.5

 

 3

 The May 29, 2013 audiogram which Dr. Gray relied upon noted losses at the frequencies of 500, 1,000, 2,000, 

and 3,000 cycles per second (cps). The right ear losses were recorded as 30, 40, 40 and 55 decibels (dB). The left 

ear losses were recorded as 20, 30, 50 and 55 dB. 

4

 For complete loss of hearing of one ear, an employee shall receive 52 weeks’ compensation. 5 U.S.C. 

§ 8107(c)(13). For complete loss of hearing of both ears, an employee shall receive 200 weeks’ compensation. Id.

5

 20 C.F.R. § 10.404 (2014). 
3

Effective May 1, 2009, schedule awards are determined in accordance with the sixth edition of 

the A.M.A., Guides (2008).6

Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each frequency are 

added up and averaged.7

 Then, the “fence” of 25 dB is deducted because, as the A.M.A., Guides

points out, losses below 25 dB result in no impairment in the ability to hear everyday speech 

under everyday conditions.8

 The remaining amount is multiplied by a factor of 1.5 to arrive at 

the percentage of monaural hearing loss.9

 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, and then 

added to the greater loss and the total is divided by six to arrive at the amount of the binaural 

hearing loss.10

ANALYSIS 

Based on the May 29, 2013 audiogram, appellant’s right ear hearing losses at 500, 1,000, 

2,000, and 3,000 cps were 30, 40, 40 and 55 dB, which totaled 165 dB. His left ear losses were 

20, 30, 50 and 55 dB, which totaled 155 dB. The right ear hearing loss of 165 dB resulted in an 

average loss of 41.25, and the left ear loss averaged 38.75 dB. After subtracting the 25 dB fence, 

the right ear loss was 16.25 and the left ear loss was 13.75 dB. Each loss was multiplied by 1.5, 

resulting in a right ear loss of 24.375 dB and a left ear loss of 20.625 dB. The lesser of the two 

(20.625 dB) was multiplied by 5 and added to the greater loss (24.375 dB), then divided by 6 

(127.5÷6) to calculate the binaural loss of 21.25 dB. Dr. Gray rated an additional 5 percent 

binaural hearing loss due to tinnitus, for an overall rating of 26.25 percent. Dr. Taylor did not 

address the additional five percent for tinnitus. 

The A.M.A., Guides allow for up to an additional five percent impairment for tinnitus. 

Specifically, the A.M.A., Guides provide that if the 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.11

Dr. Gray noted a history of tinnitus dating back to the 1970’s. Tinnitus reportedly made 

appellant’s headaches worse. While earplugs helped, this protective measure did not resolve 

appellant’s headaches or tinnitus completely. Dr. Gray also noted that currently appellant’s 

tinnitus was most bothersome for him. The tinnitus was nagging and irritating and kept him 

 6 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); and Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6a 

(February 2013). 

7 See Section 11.2, Hearing and Tinnitus, A.M.A., Guides 248-51 (6th ed. 2008). 

8 Id. at 250. 

9 Id. at 250-51. 

10 Id. at 251. 

11 Section 11.2b, Tinnitus, A.M.A., Guides 249 (6th ed. 2008). 
4

from sleeping. The right side was noted to be a little worse than the left. Appellant also reported 

occasionally feeling off balance because of the tinnitus. Dr. Gray further noted that appellant 

sometimes associated a little mild nausea with the severity of the tinnitus. 

The Board finds that Dr. Gray’s May 29, 2013 report provided sufficient explanation to 

support an additional five percent binaural hearing loss due to tinnitus. As noted, Dr. Taylor 

offered no explanation for excluding the additional rating for tinnitus. Consistent with OWCP 

procedures, Dr. Gray’s overall rating of 26.25 percent is rounded down to 26 percent binaural 

hearing loss.12 Accordingly, the April 1, 2014 decision shall be modified to reflect appellant’s 

entitlement to a schedule award for 26 percent binaural hearing loss. 

CONCLUSION 

The Board finds that appellant has proven he sustained hearing loss greater than 21.24 

percent. The record establishes that appellant has 26 percent binaural hearing loss and such 

disability benefits are therefore awarded on this appeal. 

ORDER 

IT IS HEREBY ORDERED THAT the April 1, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed, as modified. 

Issued: November 13, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 12 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4b(2)(b).