United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.V., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL SEA 

SYSTEMS COMMAND, Panama City, FL, 

Employer 

__________________________________________ 

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Docket No. 15-0159 

Issued: October 7, 2015 

Appearances: Case Submitted on the Record

Robert E. O’Dell, for the appellant

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 23, 2014 appellant, through his representative, filed a timely appeal from a 

May 1, 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.2

 1

 5 U.S.C. § 8101 et seq.

2

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from May 1, 2014, the date of OWCP’s last merit decision, was 

October 28, 2014. Since using October 31, 2014, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is October 23, 2014, rendering the appeal timely filed. See 20 C.F.R. 

§ 501.3(f) (1). 
2

ISSUE 

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

performance of duty. 

FACTUAL HISTORY 

On January 18, 2013 appellant, then a 62-year-old engineering technician, filed an 

occupational disease claim (Form CA-2) alleging that he developed bilateral hearing loss as a 

result of noise exposure from his federal employment. He reported that he worked in high level 

noise environments and often had no hearing protection. Appellant stated that his 2012 

audiogram revealed severe hearing loss when compared to his baseline testing done in 2006. 

Appellant reported that he began working at Ingall’s Shipbuilding from 1969 to 1980 

where hearing protection was not provided. He began his federal employment with the U.S. 

Navy Supervisor of Shipbuilding in 1984. From 1984 to 2003, hearing protection was not 

readily available. Appellant stated that exposure to shipbuilding noise was constant and included 

chipping, grinding, hammer blows against steel, fan motors, horns, alarms, and other noises. He 

reported that he was exposed to hazardous levels of noise for four to eight hours a day, five days 

a week. 

Appellant reported that he had hunted using a .22 caliber rifle from childhood until about 

20 years ago. Approximately three years ago, he began target shooting recreationally, 

approximately 10 to 20 rounds every couple of months. Appellant stated that he always wore ear 

plugs as well as industrial hearing protection ear muffs when shooting. He noted that he first 

began to experience hearing problems in 2000 when he was having trouble hearing conversations 

and was experiencing buzzing in his ears. 

In support of his claim, appellant submitted a November 14, 2012 audiogram which 

revealed the following decibel (dB) losses at 500, 1,000, 2,000, and 3,000 hertz (Hz): 10, 15, 25, 

and 55 for the right ear and 20, 25, 55, and 65 for the left ear. His November 28, 2006 reference 

audiogram revealed the following dB losses at 500, 1,000, 2,000, and 3,000 Hz: 10, 10, 15, and 

50 for the right ear and 20, 10, 35, and 65 for the left ear. In a November 15, 2012 audiology 

report, Alan Gregg Moore, an occupational audiologist, diagnosed sensorineural bilateral hearing 

loss likely due to a combination of years of occupational noise exposure, inadequately protected 

exposure to gunfire, and presbycusis. 

In an unsigned employing establishment worksheet, appellant’s supervisor reported that 

appellant’s federal employment spanned from 1984 to the present and until recently, hearing 

protection was not always required or provided. He stated that appellant continued to be exposed 

to hazardous noise daily in his employment. 

By letter dated February 4, 2013, OWCP requested additional factual information from 

both appellant and the employing establishment. Appellant was requested to provide 

information regarding his employment history and all nonoccupational exposure to noise, as well 

as when he first related his hearing loss to conditions of employment. OWCP also requested that 

he provide medical documentation pertaining to any prior treatment he received for ear or 
3

hearing problems. It requested that the employing establishment provide noise survey reports for 

each site where appellant worked, the sources and period of noise exposure for each location, 

and copies of all medical examinations pertaining to hearing or ear problems. 

In a February 25, 2013 narrative statement, appellant responded to OWCP questionnaire 

and provided details pertaining to the types of noise to which he was exposed while working at 

shipyards from 1969 to the present, noting the following dates of employment: 1969 to 1980 

Ingall’s Shipbuilding; 1980 to 1983 Hudson Shipbuilding; 1984 to present U.S. Navy Supervisor 

of Shipbuilding. He reported no prior workers’ compensation claims for hearing loss or an ear 

condition. 

In support of his claim, appellant submitted audiograms and hearing conservation data 

dated September 16, 1987 to November 14, 2012. He argued that his progressive loss of hearing 

was first discovered in his November 20, 2002 audiogram when compared to the September 16, 

1987 reference baseline audiogram. Appellant stated that his November 28, 2006 audiogram 

became his baseline audiogram for testing done on August 11, 2011 and November 14, 2012 

which revealed a progressive threshold shift in both ears. In a November 28, 2006 audiology 

report, Christon J. Duhon, an audiologist, diagnosed tinnitus and noise-induced hearing loss, 

noting that appellant was exposed to high levels of environmental noise. He also noted a noise 

exposure history since 17 years of age, most of which was from working in naval shipyards. 

In a February 4, 2013 statement, Scott D. Buettner, appellant’s supervisor stated that 

appellant worked at the U.S. Navy Supervisor of Shipbuilding from 1984 to the present and that 

his personal work statement and history supported his claim. He stated that appellant was 

exposed to noise from diesel engines, gas turbines, various machinery, hammers, peening of 

steel, and other high-frequency noise which included 400 Hz electronic equipment. Dr. Buettner 

stated that the only noise survey available was dated June 18, 2012. A copy of the June 18, 2012 

industrial hygiene survey report was provided. 

In a March 22, 2013 statement of accepted facts (SOAF), OWCP provided a summary of 

appellant’s nonfederal employment, noting that he worked at Ingall’s Shipbuilding from 1969 to 

1979, and Hudson Shipbuilding from 1980 to 1983, and that his federal employment with the 

U.S. Navy spanned from 1984 to the present. The SOAF described the sources of federal noise 

exposure, which included 400 Hz electronic equipment, and noted that noise source dB levels 

ranged from 88 and higher dB. Appellant’s hobbies included occasional hunting, from 

childhood until about 20 years ago, using a .22 caliber rifle, and target shooting with ear plugs 

and industrial ear muff protection. 

OWCP referred appellant, the SOAF, and the case record to Dr. John S. Keebler, a 

Board-certified otolaryngologist, for a second opinion evaluation on April 16, 2013. 

Audiometric testing performed that same date revealed the following dB losses at 500, 1,000, 

2,000, and 3,000 Hz: 15, 15, 30, and 55 for the right ear and 15, 15, 50, and 70 for the left ear. 

Dr. Keebler reported that appellant hunted in past years and would shoot guns occasionally. 

When comparing the 1987 audiogram to the 2013 audiogram, he reported that appellant’s present 

audiometric findings were worse bilaterally. Dr. Keebler diagnosed bilateral sensorineural 

hearing loss which he opined was not due to employment-related noise exposure. He stated that 

appellant’s sensorineural hearing loss was in excess of what would normally be predicated on the 
4

basis of presbycusis in the left ear only. When asked if the workplace noise exposure was 

sufficient as to intensity and duration to have caused the loss in question, Dr. Keebler replied that 

it could have been but because only the left ear had changed enough for noise-induced hearing 

loss, the hearing loss was most likely caused by gun blast noise rather than industrial noise since 

industrial noise would harm both ears equally. 

On May 8, 2013 OWCP routed Dr. Keebler’s report to its district medical adviser (DMA) 

for an opinion pertaining to a schedule award. The DMA stated that Dr. Keebler opined that 

appellant’s sensorineural hearing loss was not due to federal noise exposure. Dr. Keebler noted 

that since 1987 hearing loss greater than presbycusis was present in the left ear only and that this 

unilateral change was likely due to shooting guns rather than industrial noise exposure which 

would have injured both ears. The DMA noted that in view of Dr. Keebler’s findings, a schedule 

award determination was not appropriate in this case. 

OWCP denied appellant’s claim by decision dated May 10, 2013 as the medical evidence 

did not support that his hearing loss was causally related to workplace noise exposure. 

On May 30, 2013 appellant, through counsel, requested an oral hearing before the Branch 

of Hearings and Review. 

In a March 15, 2014 report, Marianne Towell, an audiologist, reported that appellant’s 

1987 audiogram revealed bilateral hearing loss, worse in left ear, but not classically 

asymmetrical according to FDA standards. She stated that hearing thresholds had consistently 

worsened in the left and right ear from 1987 to 2013. Ms. Towell opined that a substantial 

portion of appellant’s hearing loss was due to the shipyard noise exposure from 1984 to the 

present, especially given that his supervisor stated that appellant was exposed up to 100 dB noise 

exposure levels. She disagreed with Dr. Keebler’s findings and noted that from 1987 to 2013, 

appellant’s right ear had worsened greater than the left. Ms. Towell further stated that, while a 

right-handed shooter should have greater hearing decrease in the left ear, this is not substantiated 

by hearing decreases in test results from 1987 to 2013. She stated that there were multiple 

reasons which could cause one ear to be worse than the other in an industrial noise-exposed 

worker. Specifically, Ms. Towell provided examples stating that orientation to noise source can 

cause greater hearing damage to one ear than the other where, because of the head shadow effect, 

equal damage can only be expected to occur if the noise source is directly in front of or directly 

behind the worker. She further stated that ear canal size, improper use of ear protection, and 

excessive ear hair and ear wax could all contribute to asymmetrical hearing. An audiometric 

record of appellant’s left ear and right ear was provided comparing numerous audiograms taken 

from September 19, 1987 to June 13, 2013. 

At the March 17, 2014 hearing, counsel for appellant argued that his hearing loss was 

caused by his federal employment noise exposure. Appellant testified that he stopped hunting 

approximately 20 years ago. He stated that he would occasionally go to target practice, used a 

.40 caliber gun, and utilized hearing protection. Appellant further stated that he would shoot 

straight ahead with the pistol held by two hands in the center of the body mass. The record was 

held open for 30 days. 
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In an April 1, 2014 memorandum, counsel argued that Dr. Keebler incorrectly stated that 

the worsening of appellant’s hearing since 1987 was more profound in the left ear as Ms. Towell 

stated that it was actually more profound in the right ear. He further argued that FECA did not 

allow for apportionment of causation and that a minor component of hearing loss could not 

override appellant’s workplace-induced hearing loss. 

By decision dated May 1, 2014, OWCP affirmed the May 10, 2013 decision finding that 

appellant failed to establish that his hearing loss was causally related to employment-related 

noise exposure. It noted that the weight of the medical evidence rested with Dr. Keebler and 

Ms. Towell’s opinion was of no probative value as audiologists were not considered physicians 

under FECA.3 

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 

employment injury.4 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or occupational disease.5

Appellant has the burden of establishing by weight of the reliable, probative, and 

substantial evidence that his hearing loss condition was causally related to noise exposure in his 

federal employment.6 Neither the condition becoming apparent during a period of employment, 

nor the belief of the employee that the hearing loss was causally related to noise exposure in 

federal employment, is sufficient to establish causal relationship.7

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;8 (2) a 

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

presence or occurrence of the disease or condition;9

 and (3) medical evidence establishing the 

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

 3

 5 U.S.C. § 8102(2). 

4 Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989). 

5 Michael E. Smith, 50 ECAB 313 (1999). 

6 Stanley K. Takahaski, 35 ECAB 1065 (1984). 

7 See John W. Butler, 39 ECAB 852, 858 (1988). 

8 Michael R. Shaffer, 55 ECAB 386 (2004). 

9 Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001). 
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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.10

The medical evidence required to establish causal relationship generally is rationalized 

medical opinion evidence. The opinion of the physician must be based on a complete factual and 

medical background of the employee, must be one of reasonable certainty and must be supported 

by medial rationale explaining the nature of the relationship between the diagnosed condition 

and the specific employment factors identified by the employee.11

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested 

arbiter. While the claimant has the burden to establish his or her claim, OWCP also has a 

responsibility in the development of the evidence.12 

ANALYSIS 

It is not disputed that appellant was exposed to hazardous employment-related noise at 

the U.S. Navy Supervisor of Shipbuilding. The issue is whether he established employmentrelated hearing loss due to noise exposure during his federal employment. The Board finds that 

this case is not in posture for decision. 

OWCP properly referred appellant to Dr. Keebler, a Board-certified otolaryngologist, for 

a second opinion evaluation.13 In his April 16, 2013 report, Dr. Keebler stated that, from 1987 to 

the present, appellant’s current audiometric findings were worse bilaterally. He diagnosed 

bilateral sensorineural hearing loss which he opined was not due to employment-related noise 

exposure. Dr. Keebler stated that appellant’s sensorineural hearing loss was in excess of what 

would normally be predicated on the basis of presbycusis in the left ear only. When asked if the 

workplace noise exposure was sufficient as to intensity and duration to have caused the loss in 

question, he replied that it could have been but because only the left ear had changed enough for 

noise-induced hearing loss, the hearing loss was most likely caused by gun blast noise rather than 

industrial noise since industrial noise would harm both ears equally. 

The Board finds that the medical evidence has not been properly developed. 

Dr. Keebler’s opinion is speculative and equivocal in nature as he failed to provide a rationalized 

opinion establishing that occupational noise exposure had no effect on appellant’s hearing.14 The 

Board notes that there is no requirement that the federal employment be the only cause of 

appellant’s hearing loss. If work-related exposures caused, aggravated, or accelerated 

 10 Beverly A. Spencer, 55 ECAB 501 (2004). 

11 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005). 

12 See Claudia A. Dixon, 47 ECAB 168 (1995). 

13 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(b) 

(January 2013). 

14 M.H., Docket No. 12-733 (issued September 5, 2012); D.F., Docket No. 09-1080 (issued December 7, 2009). 
7

appellant’s condition, he is entitled to compensation.15 The Board has consistently held that a 

medical opinion not fortified by rationale is of limited probative value.16 

It is well established that proceedings under FECA are not adversarial in nature and while 

the claimant has the burden to establish entitlement to compensation, OWCP shares the 

responsibility in the development of the evidence.17 When OWCP selects a physician for an 

opinion on causal relationship, it has an obligation to secure, if necessary, clarification of the 

physician’s report and to have a proper evaluation made.18 Because it referred appellant to a 

second opinion physician, it has the responsibility to obtain a report that will resolve the issue of 

whether his hearing loss was caused by his federal employment.19 As OWCP referred appellant 

to Dr. Keebler, it has the responsibility to obtain a report that will resolve the issue of whether 

appellant’s hearing loss was caused or contributed to by his federal employment.20

Following this and any other further development deemed necessary, OWCP shall issue 

an appropriate merit decision on appellant’s occupational disease claim. 

CONCLUSION 

The Board finds that the case is not in posture for decision as to whether appellant 

developed sensorineural hearing loss in the performance of duty. 

 15 See Beth P. Chaput, 37 ECAB 158, 161 (1985); S.S., Docket No. 08-2386 (issued June 5, 2008). 

16 F.H., Docket No. 14-0268 (issued July 2, 2014); A.D., 58 ECAB 149 (2006). 

17 P.K., Docket No. 08-2551 (issued June 2, 2009). 

18 Alva L. Brothers, Jr., 32 ECAB 812 (1981). 

19 See Ramon K. Farrin, Jr., 39 ECAB 736 (1988). 

20 Id.
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ORDER 

IT IS HEREBY ORDERED THAT the May 1, 2014 decision of the Office of Workers’ 

Compensation Programs is set aside. The case is remanded for further proceedings consistent 

with this opinion. 

Issued: October 7, 2015 

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