United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.M., Appellant 

and 

DEPARTMENT OF THE NAVY, FLEET 

FORCES COMMAND, Norfolk, VA, Employer 

__________________________________________ 

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Docket No. 15-1639 

Issued: November 4, 2015 

Appearances: Case Submitted on the Record

David G. Jennings, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 28, 2015 appellant, through counsel, filed a timely appeal from a July 2, 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 OWCP properly denied appellant’s claim for a schedule award due 

to hearing loss. 

FACTUAL HISTORY 

On August 28, 2013 appellant, then a retired 64-year-old materials handler inspector, 

filed an occupational disease claim (Form CA-2) alleging that he sustained hearing loss due to 

exposure to hazardous noise at work. He indicated that on August 1, 2006 he first became aware 

 1

 5 U.S.C. § 8101 et seq. 
2

of his claimed condition and first realized that it was caused or aggravated by his employment. 

On the same form, appellant’s immediate supervisor indicated that he retired effective 

December 31, 2011. 

In an August 29, 2013 letter, OWCP requested that appellant submit additional factual 

and medical evidence. It also requested that the employing establishment submit information. 

Appellant submitted a detailed statement describing his federal and nonfederal 

employment over the years, including the type of noise exposure he experienced in each job. He 

indicated that in some of his federal jobs he was exposed to noise from pneumatic tools, trucks, 

trains, and heavy equipment. Appellant submitted a January 10, 2012 audiogram that showed 

mild hearing loss, but the audiogram report was not signed. 

On September 10, 2013 appellant filed a claim for a schedule award (Form CA-1). 

OWCP referred appellant for evaluation of his claimed hearing loss to Dr. William R. 

Lomax, a Board-certified otolaryngologist. In a November 6, 2013 report, Dr. Lomax reported 

findings of November 4, 2013 audiometric testing. He found that appellant had sensorineural 

hearing loss which was caused by presbycusis and acoustic trauma, but he checked a box 

indicating that the audiometic testing results were invalid and unrepresentative of appellant’s 

hearing sensitivity.2

In a November 14, 2013 report, Dr. Eric Puestow, a Board-certified internist and an 

OWCP medical adviser, noted that a schedule award could not be calculated because Dr. Lomax 

had indicated that the November 4, 2013 audiometric testing results were not valid. 

OWCP sent appellant to another OWCP referral physician to evaluate his claimed 

hearing loss. In a May 21, 2014 report, Dr. Kristen Bish, a Board-certified otolaryngologist, 

reported findings of audiometric testing she obtained on that date. She noted that the testing 

showed poor morphology and that the results were “inconclusive.” 

OWCP then referred appellant for additional evaluation of his claimed hearing loss. In a 

March 30, 2015 report, Dr. Rocco Cassone, a Board-certified otolaryngologist serving as an 

OWCP referral physician, reported findings of audiometric testing he obtained on that date. 

Dr. Cassone noted that the audiometric testing showed a moderate-to-severe sensorineural 

hearing loss with excellent speech discrimination of 92 percent and 96 percent in the right and 

left ear, respectfully. He noted that appellant was “somewhat inconsistent” comparing his pure 

tones to his speech scores and noted, “I do believe the pure tones were fairly reliable and are 

consistent testing to reach the charted numbers.” In the “impression/recommendation” portion of 

the report, Dr. Cassone noted that appellant appeared to have a sensorineural hearing loss that 

was at least in part related to federal employment although there was a little inconsistency in his 

testing and “this had been similar over his previous testing.” Appellant’s pure tones were 

slightly worse on the present audiometric evaluation than on his earlier evaluations. Dr. Cassone 

 2

 In his November 6, 2013 report and a supplemental report dated June 9, 2014, Dr. Lomax noted that the 

January 10, 2012 audiogram of record was a better indicator of appellant’s hearing loss than the audiogram he 

obtained on November 4, 2013. 
3

noted, “It is my feeling that he should be considered to have some possible relation to his noise 

exposure at work.” He noted there also was a component of presbycusis to appellant’s hearing 

loss and that amplification should be used. 

On April 29, 2015 Dr. Puestow, an OWCP medical adviser, noted that calculation of a 

schedule award was not possible. He indicated that Dr. Cassone noted that sensorineural hearing 

loss was possible due to appellant’s employment, but that the audiometric testing results were 

invalid. 

In a July 2, 2015 decision, OWCP accepted appellant’s claim for “a hearing loss” due to 

his employment-related noise exposure, but found, “After three evaluations however tests were 

deemed invalid and did not establish a ratable hearing loss. Therefore, you are not entitled to a 

schedule award of compensation under [FECA].” 

LEGAL PRECEDENT 

The schedule award provision of FECA3

 and its implementing regulations4 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 

all claimants. The American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides) has 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 cycles per second, the 

losses at each frequency are added up and averaged.7 Then, the “fence” of 25 decibels is 

deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no 

impairment in the ability to hear everyday speech under everyday conditions.8 The remaining 

amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 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 

 3

 5 U.S.C. § 8107. 

4

 20 C.F.R. § 10.404. 

5 Id. 

6

 A.M.A., Guides 250-51 (6th ed. 2009). 

7 Id.

8 Id. 

9 Id. 
4

six to arrive at the amount of the binaural hearing loss.10 The Board has concurred in OWCP’s 

adoption of this standard for evaluating hearing loss.11

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 

responsibility in the development of the evidence.12

ANALYSIS 

On August 28, 2013 appellant filed a claim alleging that he sustained hearing loss due to 

exposure to hazardous noise at work. He later filed a claim for a schedule award. OWCP 

developed the record by referring appellant for audiometric testing and evaluation of his claimed 

hearing loss. After it determined that two OWCP referral physicians obtained test findings that 

were unreliable, OWCP referred appellant for additional evaluation of his claimed hearing loss to 

Dr. Cassone, a Board-certified otolaryngologist. 

Dr. Cassone submitted a March 30, 2015 report of his March 30, 2015 audiometric 

testing. Thereafter, Dr. Puestow, a Board-certified internist serving as an OWCP medical 

adviser, noted on April 29, 2015 that calculation of a schedule award was not possible. He 

indicated that Dr. Cassone had noted that sensorineural hearing loss was possible due to 

appellant’s employment, but that the audiometric test results were invalid. 

In a July 2, 2015 decision, OWCP accepted appellant’s claim for “a hearing loss” due to 

his employment-related noise exposure and noted, “After three evaluations however tests were 

deemed invalid and did not establish a ratable hearing loss. Therefore, you are not entitled to a 

schedule award of compensation under [FECA].” 

The Board notes that Dr. Cassone’s March 30, 2015 report requires clarification as he did 

not explicitly indicate whether the testing results he obtained were invalid. Dr. Cassone noted 

that appellant was “somewhat inconsistent” comparing his pure tones to his speech scores and 

noted, “I do believe the pure tones were fairly reliable and are consistent testing to reach the 

charted numbers.” In the “impression/recommendation” portion of the report, he noted that 

appellant appeared to have a sensorineural hearing loss that was at least in part related to federal 

employment although there was a little inconsistency in his testing and “this had been similar 

over his previous testing.” Therefore, Dr. Cassone’s opinion on the validity of the testing is 

vague and in need of clarification. 

For these reasons, the case shall be remanded to OWCP in order to obtain a supplemental 

report from Dr. Cassone clarifying his opinion on the validity of the test results he obtained on 

March 30, 2015. After carrying out this development, it shall issue a de novo decision regarding 

appellant’s claim for schedule award compensation. 

 10 Id. 

11 Donald Stockstad, 53 ECAB 301 (2002); petition for recon. granted (modifying prior decision), Docket No. 01-

1570 (issued August 13, 2002). 

12 Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983). 
5

CONCLUSION 

The Board finds that the case is not in posture for decision regarding whether OWCP 

properly denied appellant’s claim for a schedule award due to hearing loss. 

ORDER 

IT IS HEREBY ORDERED THAT the July 2, 2015 decision of the Office of Workers’ 

Compensation Programs is set aside and the case remanded to OWCP for proceedings consistent 

with this decision of the Board. 

Issued: November 4, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board