United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.M., Appellant 

and 

DEPARTMENT OF THE ARMY, JOINT 

MUNITIONS & LETHALITY COMMAND, 

McAlester, OK, Employer 

__________________________________________ 

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Docket No. 15-1812 

Issued: April 12, 2016 

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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 1, 2015 appellant filed a timely appeal from a July 31, 2015 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 met his burden of proof to establish binaural hearing loss 

in the performance of duty, causally related to factors of his federal employment. 

On appeal, appellant contends that when he went to work at the employing establishment 

in 2003 his hearing was in good shape, it worsened from 2004 to 2007, and in 2010 he was told 

that he needed to change jobs because his hearing loss was more severe than before. 

 1

 5 U.S.C. § 8101 et seq. 
2 

FACTUAL HISTORY 

On August 18, 2013 appellant, a 66-year-old explosives worker, filed an occupational 

disease claim (Form CA-2) alleging that he sustained additional hearing loss due to noise 

exposure in the course of his federal employment. On the claim form, the employing 

establishment indicated that he was reassigned to a light-duty position in storage on 

January 11, 2011. A statement of accepted facts confirmed that appellant was employed as an 

explosives worker from 2003 to 2011, that he was a participant in the hearing conservation 

program, and had a previously accepted claim for binaural hearing loss under OWCP File No. 

xxxxxx108. 

In a September 3, 2013 letter, OWCP notified appellant of the deficiencies of his claim 

and afforded him 30 days to submit additional evidence and respond to its inquiries. Appellant 

did not respond. 

By decision dated November 26, 2013, OWCP denied appellant’s claim as the evidence 

was insufficient to establish that the claimed work events occurred as alleged. 

On January 14, 2014 appellant requested reconsideration and submitted audiograms dated 

January 15, 2004 through February 13, 2013 from the employing establishment’s hearing 

conservation program. 

By decision dated February 25, 2014, OWCP denied modification of its prior decision. 

On August 25, 2014 appellant again requested reconsideration and submitted an 

August 15, 2014 narrative statement and memoranda from the employing establishment dated 

October 20, 2010, September 8, 2011, and May 2, 2012 regarding noise exposure in the 

workplace and the availability of hearing protection. He also resubmitted audiograms dated 

January 15, 2004 through December 4, 2013 from the employing establishment’s hearing 

conservation program. 

OWCP referred appellant to The Scholl Center for diagnostic testing to evaluate his 

hearing. An audiological evaluation dated July 6, 2015 demonstrated mild-to-moderate-severe 

sensorineural hearing loss in the right ear and mild-to-severe sensorineural hearing loss in the left 

ear. The July 6, 2015 audiogram exhibited the following decibel (dB) losses at 500, 1,000, 

2,000, and 3,000 Hertz (Hz): 35, 35, 35, and 45 for the right ear and 30, 30, 35, and 45 for the 

left ear. 

OWCP referred appellant to Dr. Charles Heinberg, a Board-certified otolaryngologist, for 

a second opinion evaluation to determine the nature and extent of appellant’s employmentrelated hearing loss. In his July 6, 2015 report, Dr. Heinberg reviewed a statement of accepted 

facts, appellant’s medical records and history, and conducted a physical examination. He 

diagnosed bilateral sensorineural hearing loss based on the July 6, 2015 audiogram performed on 

his behalf. Dr. Heinberg reported appellant’s percent of hearing loss according to the formula 

derived by the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides),2

 as 19 percent monaural hearing loss in the right ear, 2

 A.M.A., Guides (6th ed. 2009). 
3 

15 percent monaural hearing loss in the left ear, and 16 percent hearing loss binaurally. He noted 

that appellant had a long history of hearing loss since 2004. Dr. Heinberg concluded, however, 

that appellant’s pattern of hearing loss was “more consistent with presbycusis than noise trauma” 

and opined that it was not due to noise exposure encountered during the course of his federal 

employment. In response to OWCP’s question, “Was the workplace exposure, as described in 

the material provided, sufficient as to intensity and duration to have caused the loss in 

question?,” Dr. Heinberg replied “Yes.” However, he also opined that, “The sensorineural 

hearing loss seen is, in part or all, in my opinion NOT DUE to noise exposure encountered in this 

claimant’s [f]ederal civilian employment.” (Emphasis in the original.) Dr. Heinberg determined 

that the date of maximum medical improvement was July 6, 2015 and recommended hearing 

aids. 

On July 28 2015 Dr. H. Mobley, an OWCP medical adviser, reviewed Dr. Heinberg’s 

report and audiometric test of July 6, 2015. He concurred with Dr. Heinberg’s findings and 

calculations under the sixth edition of the A.M.A., Guides and concluded that appellant had 16 

percent binaural hearing loss. Dr. Mobley concurred with Dr. Heinberg that appellant’s hearing 

loss was compatible with presbycusis and, therefore, it was not causally related to his federal 

employment. He further opined that hearing aids should not be authorized as appellant’s hearing 

loss was not employment related. Dr. Mobley determined that the date of maximum medical 

improvement was July 6, 2015. 

By decision dated July 31, 2015, OWCP denied appellant’s claim as the medical 

evidence of record failed to establish a causal relationship between his hearing loss and factors of 

his federal employment. 

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 timely filed within the applicable time 

limitation period of FECA, and that an injury3 was sustained in the performance of duty. These 

are the essential elements of each compensation claim, regardless of whether the claim is 

predicated upon a traumatic injury or an occupational disease.4

 

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

occupational disease claim, an employee must submit the following: (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 

 3

 OWCP regulations define an occupational disease or illness as a condition produced by the work environment 

over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q). 

4 See J.C., Docket No. 09-1630 (issued April 14, 2010). See also Ellen L. Noble, 55 ECAB 530 (2004). 
4 

evidence establishing that the diagnosed condition is causally related to the employment factors 

identified by the employee.5 

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.6 

ANALYSIS 

The Board finds that this case is not in posture for decision due to inconsistencies in 

Dr. Heinberg’s second opinion report. 

OWCP referred appellant to Dr. Heinberg for a second opinion evaluation to determine 

the nature and extent of appellant’s employment-related hearing loss. In his July 6, 2015 report, 

Dr. Heinberg diagnosed bilateral sensorineural hearing loss and noted that appellant had a long 

history of hearing loss since 2004. In response to OWCP’s question, “Was the workplace 

exposure, as described in the material provided, sufficient as to intensity and duration to have 

caused the loss in question?,” Dr. Heinberg replied “Yes.” However, he also opined that, “The 

sensorineural hearing loss seen is, in part or all, in my opinion NOT DUE to noise exposure 

encountered in this claimant’s [f]ederal civilian employment.” (Emphasis in the original.) 

Dr. Heinberg indicated that appellant’s pattern of hearing loss was “more consistent with 

presbycusis than noise trauma” and opined that it was not due to noise exposure encountered 

during the course of his federal employment. 

The Board finds that OWCP’s referral physician, Dr. Heinberg, provided contradictory 

findings regarding the cause of appellant’s hearing loss by opining that appellant’s hearing loss 

was not work related yet also opining that workplace noise exposure was sufficient to have 

caused appellant’s hearing loss. The Board has held that once OWCP undertakes development 

of the record, it must do a complete job in procuring medical evidence that will resolve the 

relevant issues in the case.7

 Accordingly, the Board will set aside OWCP’s July 31, 2015 

decision and remand the case to OWCP to resolve the issue. 

The Board further finds that OWCP previously accepted appellant’s claim for binaural 

hearing loss as an explosives worker from 2003 to 2011 under OWCP File No. xxxxxx108. 

Upon return of the case, OWCP should combine the current case record with File No. 

 5 Id. See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994). 

6 See I.J., 59 ECAB 408 (2008). See also Victor J. Woodhams, 41 ECAB 345 (1989). 

7 See Richard F. Williams, 55 ECAB 343, 346 (2004). 
5 

xxxxxx544.8

 Following any necessary further development, OWCP should issue a de novo 

decision. 

CONCLUSION 

The Board finds that this case is not in posture for decision. Further development of the 

evidence is warranted. 

ORDER 

IT IS HEREBY ORDERED THAT the July 31, 2015 decision of the Office of 

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

consistent with this decision of the Board. 

Issued: April 12, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 8 See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 

2.400.8(c)(1) (February 2000) (cases should be doubled when a new injury case is reported for an employee who 

previously filed an injury claim for a similar condition or the same part of the body).