United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

V.B., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

San Antonio, TX, Employer 

__________________________________________ 

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Docket No. 14-8 

Issued: March 6, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On October 7, 2013 appellant filed a timely appeal from an August 2, 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 appellant sustained more than a 92 percent binaural hearing loss, for 

which she received a schedule award. 

FACTUAL HISTORY 

On January 16, 2013 appellant, then a 51-year-old customs and border protection officer, 

filed an occupational disease claim (Form CA-2) alleging hearing loss as a result of high levels 

 1

 5 U.S.C. § 8101 et seq. 
2

of noise exposure while working at a commercial truck importation lot from diesel truck traffic 

and from gunfire. She became aware of her condition and of its relationship to her employment 

on November 26, 2012. Appellant notified her supervisor on January 16, 2013. 

Appellant responded to OWCP’s standard questionnaire regarding hearing loss on 

January 22, 2013. She noted that she had worked for the employing establishment since 

August 1999 in passenger processing. While working in this area, appellant was exposed to high 

levels of noise from hundreds of gasoline and diesel fuel engines, air brakes of passenger buses 

and pedestrian traffic, for 8 to 16 hours per day. She was provided with foam earplugs, but these 

were rarely used due to protocols regarding officer safety and awareness of surroundings. 

Appellant also worked at seaports, airports and railway stations, where she was exposed to loud 

noises from airplanes, the engine rooms of large cargo vessels, locomotive horns and rail cars 

striking each other, for up to four hours at a time depending on the size of the vessel to be 

inspected. Hearing protection was not provided for these assignments. Appellant engaged in 

quarterly firearms qualifications at the employing establishment, in which she was exposed to up 

to two hours of gunfire from various types of weapons. Hearing protection was provided for 

these events. Appellant noted that she was still exposed to hazardous noise at work, as she was 

currently assigned to the commercial truck importation lot, which had constant diesel truck 

traffic. She stated that she had first noticed her hearing loss in January 2009 as a ringing in her 

ears and that she realized that her hearing loss was work related at the same time. Prior to her 

employment with the employing establishment, appellant had no hearing problems. She asserted 

that her hearing problems were disruptive to her normal daily life, making it difficult to watch 

television or talk on the telephone. Appellant’s hobbies involving exposure to loud noise 

included fishing and deer hunting, but she wore hearing protection while hunting and noted that 

the exposure to noise while fishing was minimal. 

Appellant submitted audiogram results from examinations performed on November 26 

and December 3, 2012 from a person with an illegible signature. Audiometric testing obtained 

on November 26, 2012 at the frequency levels of 500, 1,000, 2,000 and 3,000 hertz (Hz) revealed 

the following: left ear-88, 100, 88 and 95 decibels (dBs); right ear-88, 95, 100 and 100 dBs. 

Audiometric testing obtained on December 3, 2012 revealed the following: left ear-100, 85, 90 

and 95 dBs; right ear-100, 100, 95 and 100 dBs. 

By letter dated January 25, 2013, OWCP requested additional factual evidence from 

appellant. It afforded her 30 days to submit additional evidence. OWCP also requested that 

appellant’s employing establishment respond to its inquiries regarding duties of her employment. 

Appellant resubmitted her earlier statement, which contained responses to all of OWCP’s 

inquiries. 

By letters dated February 19 and 25, 2013, OWCP referred appellant to Dr. Gregory S. 

Rowin, a Board-certified otolaryngologist and osteopath, for measurements of her current 

hearing acuity to be taken on April 2, 2013. It included a statement of accepted facts regarding 

her federal employment history. 

Appellant attended an examination on March 12, 2013 with Dr. James J. Sorce, a Boardcertified otolaryngologist, who occupied the same office as Dr. Rowin. In a record of a 

telephone conversation dated April 1, 2013, OWCP informed her that it could not accept this 
3

report and that she needed to see Dr. Rowin on April 2, 2013 as originally scheduled. Appellant 

reported to OWCP that she had attended this appointment. By letter dated April 23, 2013, 

however, OWCP scheduled another appointment with Dr. Rowin on April 23, 2013. 

In a report dated April 2, 2013, Dr. Rowin reviewed appellant’s history of occupational 

exposure to hazardous noise and performed an otologic evaluation. Audiometric testing obtained 

by Charles Butler, M.A., on April 23, 2013 at the frequency levels of 500, 1,000, 2,000 and 

3,000 Hz revealed the following: left ear-85, 80, 85 and 90 dBs; right ear-85, 70, 85 and 90 dBs. 

He noted that the testing occurred at 2:00 p.m. and that the time of appellant’s last exposure to 

loud noise was at least 16 hours before the examination. The audiological equipment had been 

last calibrated on October 11, 2012. Dr. Rowin determined that appellant sustained severe to 

profound mixed bilateral hearing loss with a mild conductive component present. He found that 

her hearing loss was due to noise exposure in her federal employment, writing that the pattern of 

appellant’s audiogram was consistent with noise exposure. Dr. Rowin also stated that hearing 

aids were recommended. In calculating appellant’s binaural hearing impairment, he added five 

percent to appellant’s percentage of impairment for tinnitus impacting her ability to perform 

activities of daily living (ADLs). 

By decision dated May 15, 2013, OWCP accepted appellant’s claim for bilateral hearing 

loss due to noise exposure. 

On May 16, 2013 Dr. Ronald H. Blum, a district medical adviser, calculated that, under 

the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides), appellant had a 91.9 percent ratable binaural hearing loss: 86.9 

percent binaural loss and 5 percent for tinnitus. He concluded that noise exposure in the course 

of her federal employment was sufficient to implicate it as a contributing factor to her hearing 

loss. Hearing aids were authorized. 

On May 22, 2013 appellant filed a claim for a schedule award. 

By decision dated August 2, 2013, OWCP granted appellant a schedule award for 92 

percent binaural hearing loss. The award ran for 184 weeks from April 23, 2013 through 

October 31, 2016. 

LEGAL PRECEDENT 

The schedule award provision of FECA2

 and its implementing regulations3 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 to all claimants, good administrative practice 

necessitates the use of a single set of tables so that there may be uniform standards applicable to 

 2

 5 U.S.C. § 8107. 

3

 20 C.F.R. § 10.404. 
4

all claimants.4 The A.M.A., Guides have been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.5

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

A.M.A., Guides.

6

 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each 

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

A.M.A., Guides point out, losses below 25 dBs result in no impairment in the ability to hear 

everyday speech under everyday 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. The Board has concurred in OWCP’s adoption of this standard for 

evaluating hearing loss.7

It is well established that the period covered by a schedule award commences on the date 

that the employee reaches maximum medical improvement from the residuals of the accepted 

employment injury. The Board has explained that maximum medical improvement means that 

the physical condition of the injured member of the body has stabilized and will not improve 

further. The determination of whether maximum medical improvement has been reached is 

based on the probative medical evidence of record and is usually considered to be the date-of-the 

evaluation by the attending physician which is accepted as definitive by OWCP.8

Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a 

symptom that may be the result of disease or injury.9 The A.M.A., Guides state that, if tinnitus 

interferes with ADLs, 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.10

ANALYSIS 

The Board finds that appellant has a 92 percent binaural hearing loss. 

Appellant’s claim of occupational hearing loss was accepted by OWCP based on the 

reports of Dr. Rowin and Dr. Blum, a district medical adviser. OWCP’s standardized procedures 

 4 See D.K., Docket No. 10-174 (issued July 2, 2010); Michael S. Mina, 57 ECAB 379, 385 (2006). 

5 Supra note 3; see F.D., Docket No. 09-1346 (issued July 19, 2010). 

6 See A.M.A., Guides 250 (6th ed., 2009). 

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

8 Mark A. Holloway, 55 ECAB 321, 325 (2004). 

9 See A.M.A., Guides 249 (6th ed. 2009). 

10 Id. See also R.O., Docket No. 13-1036 (issued August 28, 2013); R.H., Docket No. 10-2139 (issued July 13, 

2011); Robert E. Cullison, 55 ECAB 570, 573 (2004). 
5

were applied to Dr. Rowin’s April 2, 2013 report. Test results at the frequency levels of 500, 

1,000, 2,000 and 3,000 Hz on the left revealed decibel losses of 85, 80, 85 and 90 dBs 

respectively, for a total of 340 dBs. This figure, divided by four, results in an average hearing 

loss of 85 dBs. The average of 85 dBs, when reduced by the 25 dB fence and multiplied by 1.5, 

results in a 90 percent monaural hearing loss of the left ear. Testing for the right ear at the 

frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed dB losses of 85, 70, 85 and 90 dBs 

respectively, for a total loss of 330 dBs. Three hundred-thirty dBs divided by four results in an 

average of 82.5 dBs, which when reduced by the 25 dB fence and multiplied by 1.5, results in an 

86.25 percent monaural hearing loss of the right ear. Multiplying the lesser loss of 86.25 by 5 

arrives at a product of 431.25. Adding this figure to the 90 percent hearing loss of the left ear 

obtains a total of 521.25. Dividing this total by six in order to calculate a binaural hearing loss 

yields an 86.875 percent binaural impairment. Adding 5 percent to appellant’s impairment due 

to tinnitus, as recommended by Dr. Rowin, results in a final figure of 91.875 percent binaural 

hearing loss.11 Rounding up from 91.875 to 92 percent, as provided in OWCP’s procedures, 

arrives at appellant’s 92 percentage of impairment for schedule award purposes.12

There is no other medical evidence of record establishing greater loss under OWCP 

procedures. The records of audiometric tests performed on November 26 and December 3, 2012 

do not meet the requirements of evidence to be used in evaluating occupational hearing loss 

claims as defined in the Federal (FECA) Procedure Manual, because the reports merely provide 

the results of each test.13

On appeal, appellant argues that the compensation rate of 66 and 2/3 percent of her 

weekly pay should be increased to 92 percent, her percentage of impairment. The Board finds 

that OWCP used the proper compensation rate to determine her schedule award, as there is no 

evidence of record establishing that she has eligible dependents and would be entitled to the 

 11 The maximum number of weeks of compensation for hearing loss in one ear is 52 weeks. 5 U.S.C. 

§ 8107(c)(13)(a). Appellant’s monaural hearing loss of the left ear is 90 percent. Ninety percent of 52 weeks equals 

46.8 weeks of compensation. The right ear’s ratable loss of 86.25 percent equals 44.85 weeks of compensation. 

Because the calculations for binaural hearing loss result in greater compensation than calculations for monaural 

hearing loss, OWCP properly used the binaural hearing loss calculation. See W.Z., Docket No. 11-1371 (issued 

January 6, 2012); Reynaldo R. Lichtenberger, 52 ECAB 462, 464 (2001). 

12 The Board notes that OWCP’s procedures provide that in computing binaural hearing loss, percentages should 

not be rounded until the final percent for award purposes is obtained and fractions should be rounded down from .49 

or up from .50. Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4.b(2)(b) 

(January 2010). 

13 The requirements of the evidence to be used in evaluating occupational hearing loss claims are defined by the 

Federal (FECA) Procedure Manual, which provides: that the employee should undergo audiological evaluation and 

otological examination; that the audiological testing precede the otologic examination; that the audiological 

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

of the findings; that the clinical audiologist and otolaryngologist be certified; that all audiological equipment 

authorized for testing meet the calibration protocol contained in the accreditation manual of the American 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; and that the otolaryngologist’s report 

include the date and hour of examination; date and hour of the employee’s last exposure to loud noise; and a 

rationalized medical opinion regarding the relationship. Supra note 12 at Chapter 3.600, Requirements for Medical 

Reports, Exhibit No. 4 (September 1996). 
6

augmented rate of 75 percent of her base weekly pay. The basic compensation rate for a 

schedule award is 66 and 2/3 percent, the rate used in this case.14

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. 

CONCLUSION 

The Board finds that appellant has 92 percent binaural hearing loss. 

ORDER 

IT IS HEREBY ORDERED THAT the August 2, 2013 merit decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 6, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award Payments, Chapter 2.808.7.f 

(February 2013).