United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.N., Appellant 

and 

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer 

__________________________________________ 

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Docket No. 15-252 

Issued: April 8, 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 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 12, 2014 appellant filed a timely appeal from an October 28, 2014 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 established that he sustained binaural hearing loss causally 

related to his federal employment. 

On appeal, appellant contends that he sustained hearing loss in the left ear causally 

related to noise exposure in his federal employment. He disagrees with the opinion of an OWCP 

referral physician that his workplace exposure was not of sufficient intensity to have caused his 

hearing loss, noting that he worked as a machinist for 15 years in one of the loudest shops. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On May 19, 2014 appellant, then a 66-year-old nuclear coordinator, filed an occupational 

disease claim alleging bilateral hearing loss. He first became aware of his bilateral hearing loss 

on January 1, 2012 and first realized that his condition was caused by loud noise at work that 

same day. Appellant retired from the employing establishment effective August 30, 1996. 

By letter dated June 25, 2014, OWCP informed appellant that the evidence submitted was 

insufficient to establish his claim. It requested that he submit factual and medical evidence. 

OWCP also requested that the employing establishment respond to appellant’s allegations and 

provide a copy of all medical examinations pertaining to his hearing or ear problems, including 

any preemployment examinations and audiograms. 

Appellant submitted employment records which included, among other things, a history 

of his workplace exposure to noise and chemicals from May 1966 to August 1990 and his use of 

earplugs. He also submitted employing establishment audiograms performed from August 19, 

1974 to August 22, 1994 as part of a hearing conservation program and audiograms performed 

by certified audiologists on April 30, 2013 and May 5, 2014. 

In a May 12, 2014 medical report, Dr. Harley Kinyon, a certified audiologist, noted 

appellant’s complaint about difficulty understanding conversation in background noise, nearly 

constant tinnitus, and difficulty locating source of sound. He recommended a hearing aid. 

Dr. Kinyon noted appellant’s belief that his hearing loss was caused by noise exposure at the 

employing establishment. 

In a July 18, 2014 memorandum, the employing establishment provided a history of 

appellant’s exposure to noise while working as a machinist and machinist foreman from 

August 20, 1974 to August 30, 1996. It noted its policy requiring workers to use hearing 

protection. The employing establishment stated that appellant was a foreman/supervisor who 

spent approximately 50 percent of his time in office environments with noise levels below 80 

decibels. 

In a letter dated September 16, 2014, OWCP referred appellant, together with a statement 

of accepted facts and medical record, for a second opinion evaluation with Dr. Thomas J. 

Mueller, a Board-certified otolaryngologist. In an October 15, 2014 report, Dr. Mueller noted 

that he evaluated appellant for bilateral sensorineural hearing loss. An audiogram also dated 

October 15, 2014, with an attached calibration certificate, showed hearing levels of 5, 5, 5, and 

10 decibels (dB) on the right and 10, 10, 25, and 45 dB on the left at 500, 1,000, 2,000, and 3,000 

hertz, respectively. Dr. Mueller set forth findings on examination and diagnosed asymmetric 

sensorineural hearing loss. He advised that appellant’s condition was not due to noise exposure 

in his federal employment. Dr. Mueller stated that, the hearing loss at the time he left the 

employing establishment showed a mild hearing loss in some of the upper frequencies, but no 

demonstrable hearing loss on the right side at any frequency. He recommended a magnetic 

resonance imaging scan of the left internal auditory canal to assure no space occupying lesion 

which was not related to workplace exposure. In comparing his present audiometric findings to 

those at the beginning of exposure, Dr. Mueller advised that appellant had an asymmetric high 

frequency sensorineural hearing loss beginning at two kilohertz. He noted that this had been a 
3

progressive hearing loss since appellant left the shipyard and was not due to occupational noise 

exposure. Dr. Mueller advised that the workplace exposure as described by appellant was not of 

sufficient intensity and duration to have caused the hearing loss in question on today’s 

audiogram. He further advised that appellant had no emotional disorder, systemic diseases such 

as, diabetes, local infections, or ototoxic drug use, or surgery that could have contributed to the 

hearing loss in question. 

In an October 28, 2014 decision, OWCP denied appellant’s hearing loss claim, finding 

that the medical evidence did not establish that his hearing loss was causally related to the 

accepted employment-related noise exposure. 

LEGAL PRECEDENT 

An employee seeking compensation under FECA2

 has the burden of establishing the 

essential elements of his or her claim by the weight of the reliable, probative and substantial 

evidence,3

 including that he or she is an employee within the meaning of FECA and that he or 

she filed his or her claim within the applicable time limitation.4 The employee must also 

establish that he sustained an injury in the performance of duty as alleged and that his disability 

for work, if any, was causally related to the employment injury.5

To establish that an injury was sustained in the performance of duty in a claim for 

occupational disease, 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.6

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

establish causal relationship is rationalized medical evidence. The opinion of the physician must 

be based on a complete factual and medical background of the employee, 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 employee.7

OWCP procedures set forth requirements for the medical evidence used in evaluating 

hearing loss. These include that the employee undergo both audiometric and otologic 

 2 Id. 

3 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968). 

4 See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951); 

see 5 U.S.C. § 8101(1). 

5 R.C., 59 ECAB 427 (2008); Kathryn A. O Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122. 

6 G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

7 See I.J., 59 ECAB 408 (2008); see also Victor J. Woodhams, 41 ECAB 345 (1989). 
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examination; that the audiometric testing be performed by an appropriately certified audiologist; 

that the otologic examination be performed by an otolaryngologist certified or eligible for 

certification by the American Academy of Otolaryngology and that the audiometric and otologic 

examination be performed by different individuals as a method of evaluating the reliability of the 

findings. Further, all audiological equipment authorized for testing meet the calibration protocol 

contained in the accreditation manual of the America Speech and Hearing Association; that the 

audiometric test results include both bone conduction and pure tone air conduction thresholds, 

speech reception thresholds and monaural discrimination scores. The otolaryngologist’s report is 

to include: date and hour of examination, date and hour of employee’s last exposure to load 

noise, a rationalized medical opinion regarding the relation of the hearing loss to the 

employment-related noise exposure and a statement of the reliability of the tests.8

 The physician 

should be instructed to conduct additional tests or retests in those cases where the initial tests 

were inadequate or there is reason to believe that the claimant is malingering.9

ANALYSIS 

The record supports that appellant was exposed to occupational noise as a machinist and 

machinist foreman from August 20, 1974 to August 30, 1996. The Board finds, however, that 

the medical evidence does not establish that his hearing loss is causally related to the accepted 

employment-related noise exposure. 

Appellant submitted audiograms performed by the employing establishment from 

August 19, 1974 to August 22, 1994 as part of a hearing conservation program and by certified 

audiologists on April 30, 2013 and May 5, 2014. These audiograms are insufficient to establish 

appellant’s burden of proof as they do not comply with the requirements set forth under OWCP. 

They lack proper certification of calibration, speech testing, and bone conduction scores and 

were not prepared or certified as accurate by a physician as defined by FECA. The audiograms 

were not accompanied by a physician’s opinion addressing how appellant’s employment-related 

noise exposure caused or aggravated any hearing loss. It is appellant’s burden to submit a 

properly prepared and certified audiogram to OWCP.10 OWCP was not required to rely on this 

evidence in determining the degree of appellant’s hearing loss as it failed to constitute competent 

medical evidence.11 

 8 Id.

9 Luis M. Villanueva, 54 ECAB 666 (2003). See Federal (FECA) Procedure Manual, Part 3 -- Medical, 

Requirements for Medical Reports, Chapter 3.600.8(a) (September 1995). 

10 See R.B., Docket No. 10-1512 (issued March 24, 2011); Robert E. Cullison, 55 ECAB 570 (2004); Joshua A. 

Holmes, 42 ECAB 231, 236 (1990) (OWCP does not have to review audiograms not certified by a physician and it 

is the claimant’s burden to submit a properly certified audiogram for review if he objects to the audiogram selected 

by OWCP for determining the degree of hearing loss). See also J.B., Docket No. 12-607 (issued August 9, 2012); 5 

U.S.C. § 8101(2) (defines the term physician). 

11 Id. See also H.M., Docket No. 13-1061 (issued July 29, 2013); M.T., Docket No. 12-1294 (issued 

December 6, 2012). 
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The May 12, 2014 report from Dr. Kenyon, an audiologist, has no probative medical 

value because an audiologist is not a physician as defined under FECA.12

The Board finds that the weight of medical opinion is represented by Dr. Mueller, the 

OWCP second opinion specialist. In his October 15, 2014 report, Dr. Mueller advised that the 

audiogram of the same date showed asymmetric sensorineural hearing loss, but not related to 

industrial noise exposure. He stated that, in comparing his present audiometric findings to those 

at the beginning of exposure, appellant had an asymmetric high frequency sensorineural hearing 

loss beginning at two kilohertz. Dr. Mueller related that this hearing loss had progressed since 

he left the employing establishment, but concluded that it was not due to noise exposure in his 

federal employment. He noted that at the time appellant left the employing establishment he had 

a mild hearing loss in some of the upper frequencies on the left side, but no demonstrable hearing 

loss on the right side at any frequency. Dr. Mueller opined that his workplace exposure was not 

of sufficient intensity and duration to have caused the hearing loss in question on the current 

audiogram.13 The Board finds that Dr. Mueller’s opinion establishes that appellant did not meet 

his burden of proof to show that he sustained hearing loss due to exposure to noise in the 

workplace.14

On appeal, appellant contended that he sustained hearing loss in the left ear causally 

related to noise exposure in his federal employment. As discussed, however, the audiograms and 

Dr. Kinyon’s report he submitted in support of his claim do not constitute probative medical 

evidence. Appellant disagrees with Dr. Mueller’s opinion that his workplace exposure was not 

of sufficient intensity to have caused his hearing loss, noting that he worked as a machinist for 15 

years in one of the loudest shops. However, as explained above, Dr. Mueller provided a 

thorough examination and a reasoned opinion explaining how the findings on examination and 

testing were not due to noise exposure in appellant’s employment. He was provided an accurate 

statement of accepted noise exposure and contrasted audiometric testing performed on 

October 15, 2014 with the prior audiograms of record. Dr. Mueller concluded that noise 

exposure did not contribute to appellant’s asymmetric sensorineural hearing loss. 

CONCLUSION 

The Board finds that appellant has not established that his bilateral sensorineural hearing 

loss was causally related to his federal employment. 

 12 5 U.S.C. § 8101(2); M.P., Docket No. 13-1790 (issued December 17, 2013) (an audiologist is not a physician 

under FECA and the audiologist’s opinion regarding the medical cause of a claimant’s hearing loss is of no 

probative medical value). 

13 As noted above, it is appellant’s burden to submit a properly certified audiogram for review if he objects to the 

audiogram selected by OWCP for determining the degree of hearing loss. Joshua A. Holmes, supra note 10. 

14 See R.J., Docket No. 11-1644 (issued February 14, 2012); J.L., Docket No. 07-1740 (issued 

December 20, 2007). 
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ORDER 

IT IS HEREBY ORDERED THAT the October 28, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 8, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board