United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.B., Appellant 

and 

DEPARTMENT OF THE NAVY, BOSTON 

NAVAL SHIPYARD, Boston, MA, Employer 

__________________________________________ 

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Docket No. 14-187 

Issued: September 19, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 1, 2013 appellant filed a timely appeal from an October 10, 2013 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 OWCP properly denied authorization for hearing aids. 

On appeal, appellant contended, inter alia, that OWCP’s decision is based in significant 

part on misquoting a physician’s report. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has been previously before the Board.2 In an order issued on May 13, 2013, the 

Board remanded this case as OWCP had failed to consider the October 4, 2011 medical report of 

Dr. R. Kirk Bohigian, a Board-certified otolaryngologist, finding that appellant’s hearing loss 

had been medically evaluated and that appellant may be considered a candidate for hearing aids. 

The facts as set forth in the Board’s prior order are hereby incorporated by reference.3

By letters dated June 28 and July 30, 2013, OWCP asked Dr. Bohigian to review the 

May 5, 1976 report of Dr. Robert W. Clubb, a Board-certified otolaryngologist, regarding the 

accepted hearing loss for appellant. It asked Dr. Bohigian to provide a well-rationalized and 

probative report as to how appellant’s need for hearing aids would be causally related to his date 

of injury. 

In a July 9, 2013 responsive report, Dr. Bohigian conducted a new examination and 

audiogram and assessed appellant with sensorineural hearing loss in both ears and cerumen 

impaction. Dr. Bohigian stated: 

“In summary my impression is that [appellant] has a bilateral moderate to 

moderately severe sensorineural hearing loss in both ears by serial audiometric 

testing when compared to an audiogram performed in October 2011. There is no 

clinical evidence of any otologic inflammatory disease. His external auditory 

canals were cleaned of curumen using the operating microscope. He has history 

of significant noise exposure as a result of his work [for the employing 

establishment] where he was employed from 1942-1973.” 

He indicated that he provided appellant with medical clearance for binaural amplification with 

hearing aids which he will consider for his sensorineural hearing loss. Dr. Bohigian 

recommended a follow-up evaluation with audiometric testing in two years or sooner if needed. 

In an October 10, 2013 decision, OWCP denied appellant’s claim as it determined that 

the medical evidence failed to establish a causal relationship between appellant’s medical 

condition and the accepted work events. In reaching this conclusion, it noted that Dr. Bohigian 

found a decrease of approximately 10 decibels in appellant’s sensorineural hearing loss in both 

ears and quoted Dr. Bohigian as stating, inter alia: 

“This decrease is clearly as a result of the natural aging process in the inner ear 

known as [p]resbycusis and evidenced in the results of the exam[ination]s which 

 2

 By September 23, 1976 decision, the Board affirmed in part a July 2, 1976 OWCP decision, finding that 

appellant had no more than a 10 percent employment-related binaural hearing loss, for which he received a schedule 

award. The Board remanded the case for further development of the pay rate and medical benefit issues. See 27 

ECAB 680 (1976). 

3 Order Remanding Case, Docket No. 12-1907 (issued May 13, 2013). On September 1, 2012 appellant, then a 

52-year-old position classification specialist, alleged that he sustained occupational loss of hearing due to exposure 

to loud and injurious noise. He previously received a schedule award for 10 percent bilateral neurosensory hearing 

loss. 
3

were performed 20 months apart without any significant noise exposure.” 

(Emphasis in the original.) 

LEGAL PRECEDENT 

Section 8103 of FECA provides that the United States shall furnish to an employee who 

is injured while in the performance of duty, the services, appliances and supplies prescribed or 

recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce 

the degree or the period of disability or aid in lessening the amount of the monthly 

compensation.4 In interpreting this section of FECA, the Board has recognized that OWCP has 

broad discretion in approving services provided under FECA with the only limitation on 

OWCP’s authority being that of reasonableness.5

ANALYSIS 

OWCP previously accepted appellant’s claim for binaural hearing loss due to noise 

exposure. It denied appellant’s request because Dr. Bohigian had failed to support his 

recommendation for hearing aids with sufficient rationale on causal relationship. In the decision, 

however, OWCP attributed a conclusion to Dr. Bohigian that was not in his report. “This 

decrease is clearly a result of the natural aging process in the inner ear known as presbycusis....” 

Dr. Bohigian concluded, inter alia, “[Appellant] has a history of significant noise exposure as a 

result of his work in the [employing establishment] where he was employed from 1942 

[to] 1973.” He added that he had medically cleared appellant for “binaural amplification with 

hearing aids.” The Board concludes that the statement OWCP attributes to Dr. Bohigian is in 

error. 

The issue to be resolved was whether appellant was entitled to hearing aids as a result of 

his employment-related binaural loss of hearing. OWCP’s error in attributing a quote to 

Dr. Bohigian that he never made in any report in the record requires that this Board remand the 

case to OWCP once again to reconsider the medical evidence in addressing the unresolved issue 

of whether appellant is entitled to hearing aids due to his employment-related binaural hearing 

loss. Accordingly, this case will be remanded to OWCP for this purpose.6

 After such further 

development as OWCP deems necessary, it shall issue a de novo decision on appellant’s 

entitlement to hearing aids. 

 4

 5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288, 289 (1999). 

5 James. R. Bell, 52 ECAB 416 (2001); see also J.C., Docket No. 13-1413 (issued October 22, 2013). 

6

 On appeal appellant asks this Board to “reaffirm the November 7, 2011 decision of the Boston Office, entitling 

me to hearing aids at the expensive of OWCP....” He appears to be referring to a November 7, 2011 letter to 

appellant’s senator wherein OWCP indicated that appellant was entitled to hearing aids at OWCP’s expense. This 

letter is not a formal decision; no decision was ever issued granting appellant’s request for hearing aids. The 

Board’s jurisdiction is limited to deciding appeals from final adverse decisions of OWCP in cases arising under 

FECA. See 20 C.F.R. §§ 501.2(c) and 501.3(a). 
4

CONCLUSION 

The Board finds that this case is not in posture for decision as to whether OWCP properly 

denied authorization for hearing aids. 

ORDER 

IT IS HEREBY ORDERED THAT the October 10, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further 

proceedings consistent with this order of the Board. 

Issued: September 19, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board