United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.M., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL AIR 

WARFARE CENTER AIRCRAFT DIVISION, 

Lakehurst, NJ, Employer 

__________________________________________ 

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Docket No. 14-1668 

Issued: May 1, 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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 28, 2014 appellant filed a timely appeal from a January 29, 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 has more than an eight percent binaural hearing loss, for 

which he received a schedule award. 

On appeal, appellant contends that he was entitled to a greater award as he had submitted 

evidence of a greater hearing loss and evidence of tinnitus. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On October 25, 2007 appellant, then a general engineer, filed an occupational disease 

claim alleging that he suffered from hearing loss as a result of his federal employment. He noted 

that he worked for over 41 years in noisy industrial environments where he was exposed to 

excessive and painful noise from low flying aircraft and industrial departments. Appellant noted 

that his jobs required him to be in the shop areas for approximately six hours daily. He retired on 

October 31, 2007. 

On May 1, 2008 OWCP accepted appellant’s claim for binaural hearing loss. 

OWCP referred appellant for a second opinion. In a March 24, 2010 medical opinion, 

Dr. Sean Smullen, a Board-certified otolaryngologist, opined that appellant’s noise exposure 

during his federal employment and not his age was responsible for his hearing loss. He reviewed 

the results of an audiogram conducted in his office on that date and diagnosed sensorineural 

hearing loss due to appellant’s federal employment. Dr. Smullen noted that he applied the 

standards provided by the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment2 (A.M.A., Guides) and calculated a 13.1 percent left-sided 

hearing loss and 16.9 percent right-sided hearing loss, for a binaural hearing loss of 13.1 percent. 

The audiogram reflected the following decibel (dB) air losses at 500, 1,000, 2,000, and 3,000 

hertz (Hz) for the right ear of 30, 35, 30, and 50 dB respectively, and for the left ear 30, 25, 30, 

and 30 Hz respectively. Dr. Smullen recommended bilateral hearing aids. 

On June 7, 2010 an OWCP medical adviser reviewed Dr. Smullen’s otologic examination 

and did not agree with the calculation for the left ear or binaural impairment. He made his 

calculations with regard to hearing impairment pursuant to the sixth edition of the A.M.A., 

Guides, as follows: using Dr. Smullen’s test results for 500, 1,000, 2,000, 3,000 Hz of monaural 

hearing loss in the left ear of 30, 25, 30, and 30 dB respectively, the medical adviser added these 

totals together to equal 115.0 and divided this by 4 which resulted in an average hearing loss of 

28.75. He then subtracted the fence of 25 dB to equal 3.75 and multiplied this by 1.5 resulting in 

a 5.625 monaural hearing loss to the left ear. The medical adviser then noted that there was no 

added rating for tinnitus, and, after rounding the figure up, concluded that appellant had a 

monaural hearing loss in his left ear of 5.63 percent. 

With regard to the right ear, he noted test results for 500, 1,000, 2,000, and 3,000 Hz, of 

30, 35, 30, and 50 dB. The medical adviser added these figures together which equaled 145.00 

and then divided by 4 to determine that the average threshold for the 4 frequencies was 36.25 dB. 

He then reduced this amount by the threshold fence of 25 dB which resulted in 11.25, and then 

multiplied this by 1.5 to find the percent of monaural loss for the right ear was 16.875. The 

medical adviser added 0 for tinnitus and rounded the figure up to determine that appellant had a 

monaural hearing loss in his right ear of 16.88 percent. He then multiplied the lesser 5.63 

hearing loss by 5 which equaled 28.15, added this figure to 16.88 loss for the right ear which 

resulted in a subtotal of 45.03. After dividing this figure by 6, the medical adviser determined 

that appellant’s binaural hearing loss was 7.5 percent. He also recommended hearing aids. 

 2

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

On August 15, 2011 a second OWCP medical adviser, using the same figures and 

calculations as the first OWCP medical adviser, came to the same result of 5.625 monaural 

hearing loss in the left ear, a 16.875 monaural hearing loss in the right ear, for a binaural hearing 

loss of 7.5 percent. 

By decision dated September 27, 2011, OWCP awarded a 7.5 binaural hearing loss. For 

payment purposes, it rounded this schedule award up to eight percent. 

On September 24, 2012 appellant, through counsel, requested reconsideration. 

In a decision dated December 14, 2012, OWCP denied modification of its prior decision. 

On November 23, 2013 appellant again requested reconsideration. Appellant noted that 

he was submitting a report from Dr. James A. Boozan, a Board-certified otolaryngologist, who 

had calculated a higher level of hearing loss and noted tinnitus and a report from Dr. William L. 

Medford, Jr., also a Board-certified otolaryngologist, with regard to his tinnitus. Appellant 

alleged that the issue of tinnitus was originally overlooked. 

Dr. Medford’s October 18, 2013 report noted that appellant was experiencing tinnitus in 

both ears which was constant. He noted that on a scale of 1 to10, appellant’s left ear tinnitus is 

about a 4 to 5 and his right ear tinnitus is about a 6. Dr. Medford noted that the tinnitus was 

annoying and occasionally interfered with appellant’s sleep. He noted that, pursuant to the 

A.M.A., Guides, it is appropriate to add up to five percent for tinnitus to increase an impairment 

rating. Dr. Medford opined that as appellant’s binaural hearing impairment is 7.5 percent, with 

the additional 4 percent for tinnitus handicap, his binaural hearing rating became 11.5 percent. 

He also noted that, according to the sixth edition of the A.M.A., Guides, this will allow a whole 

person impairment of four percent. 

Appellant also submitted a facsimile (fax) transmittal slip dated September 24, 2012 from 

the offices of Dr. Boozan which indicated that, due to Dr. Boozan’s unexpected time away from 

the office, his report would not be completed until the following week when he returned. 

In a decision dated January 29, 2014, OWCP denied modification. It determined that 

Dr. Medford only gave an impairment rating for tinnitus based on the whole person and OWCP 

does not approve schedule awards for whole body impairments. 

LEGAL PRECEDENT 

The schedule award provision of FECA3

 and its implementing regulations 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. FECA, however, does not 

specify the manner in which the percentage of loss of a member shall be determined. The 

method used in making such determination is a matter which rests in the sound discretion of 

OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a 

single set of tables so that there may be uniform standards applicable to all claimants. The 

 3

 5 U.S.C. §§ 8101-8193. 
4

A.M.A., Guides (6th ed. 2009), has been adopted by OWCP for evaluating schedule loss and the 

Board has concurred in such adoption.4

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

A.M.A., Guides. 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. 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.5 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 and then added to the greater loss and the total is divided by six 

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

adoption of this standard for evaluating hearing loss.6 The Board has also noted OWCP’s policy 

to round the calculated percentage of impairment to the nearest whole number.7

If tinnitus interferes with activities of daily living, 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.8

ANALYSIS 

OWCP accepted appellant’s claim for binaural hearing loss. It referred appellant to 

Dr. Smullen for a second opinion evaluation and a determination of the amount of appellant’s 

hearing loss. Dr. Smullen, in his March 24, 2010 opinion, applied the formula set forth in the 

sixth edition of the A.M.A., Guides and that appellant had a 13.1 percent left-sided hearing loss, 

a 16.9 percent right-sided hearing loss, and a binaural hearing loss of 13.1 percent. He did not 

provide his calculations with regard to how he arrived at these figures. 

OWCP then forwarded Dr. Smullen’s report to an OWCP medical adviser. The medical 

adviser evaluated appellant’s claim and provided calculations in support of the conclusion. The 

medical adviser utilized the results of the audiogram conducted for Dr. Smullen. The medical 

adviser concluded that Dr. Smullen had not appropriately calculated the hearing impairment in 

appellant’s left ear. Using Dr. Smullen’s test results for 500, 1,000, 2,000, and 3,000 Hz for 

monaural hearing loss in the left ear of 30, 25, 30, and 30 dB respectively, these totals were 

added together to equal 115.0 and divided this by 4 which resulted in an average hearing loss of 

28.75. The fence of 25 dB was subtracted to equal 3.75. This was multiplied by 1.5 resulting in 

 4 R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404. 

5 See A.M.A., Guides 250. 

6 E.S., 59 ECAB 249 (2007); Reynaldo R. Lichetenberger, 52 ECAB 462 (2001). 

7 J.H., Docket No. 08-2432 (issued June 15, 2009); Robert E. Cullison, 55 ECAB 570 (2004). See Federal 

(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b) (September 2010). 

8

 A.M.A., Guides 249. 
5

a 5.625 monaural hearing loss to the left ear. The medical adviser found monaural hearing loss 

in his left ear of 5.63 percent. 

With regard to the right ear, using the test results for 500, 1,000, 2,000, and 3,000 Hz, of 

30, 35, 30, and 50 dB, these figures were added together to equal 145.00 and then divided by 4 to 

determine that the average threshold for the 4 frequencies was 36.25 dB. This amount was then 

reduced by the threshold fence of 25 dB which resulted in 11.25, and then multiplied this by 1.5 

to find the percent of monaural loss for the right ear was 16.875. No percentage was added for 

tinnitus. The figure was rounded up to determine that appellant had a monaural hearing loss in 

his right ear of 16.88 percent. The medical adviser then multiplied the lesser 5.63 hearing loss 

by 5 which equaled 28.15, added this figure to 16.88 loss for the right ear which resulted in a 

subtotal of 45.03. After dividing this figure by 6, appellant’s binaural hearing loss was 

determined to be 7.5 percent. A second medical adviser concurred with these results. 

The Board finds that Dr. Smullen properly explained how he calculated hearing 

impairment. The medical advisers utilized those findings and properly applied the A.M.A., 

Guides to arrive at the 7.5 percent binaural hearing loss. The Board finds that their reports were 

thorough, detailed and properly applied the A.M.A., Guides.

9

 Although appellant contends that 

Dr. Boozan found a greater decibel hearing loss, he failed to provide a medical opinion to 

support this assertion. 

Subsequent to the review of this case by the medical advisers, appellant submitted a 

report wherein Dr. Medford opined that appellant was entitled to four percent added to his 

impairment rating for binaural hearing loss due to tinnitus. Although Dr. Medford did address 

appellant’s whole person impairment, he also clearly indicated that appellant had an 11.5 percent 

binaural hearing impairment, after adding 4 percent for tinnitus. The Board notes that regarding 

tinnitus, the A.M.A., Guides provides that tinnitus in the presence of unilateral or bilateral 

hearing impairment may impair speech discrimination. Therefore, up to five percent may be 

added for tinnitus in the presence of measurable hearing loss if the tinnitus impacts the ability to 

perform activities of daily living.10

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

arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP 

shares responsibility in the development of the evidence to see that justice is done.11 The Board 

finds that the case is not in posture for decision regarding the award or extent of tinnitus. 

Consequently, while the medical evidence from Dr. Medford in his October 18, 2013 report is 

insufficiently rationalized to meet his burden of proof to establish that he is entitled to an 

 9

 FECA procedures relating to the evaluation of schedule awards state that the file should be routed to OWCP’s 

medical adviser for an opinion concerning the nature and percent of impairment. FECA Procedure Manual, Part 2 -- 

Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.e (February 2013). 

10 See D.W., Docket No.14-931 (issued August 11, 2014). 

11 Phillip L. Barnes, 55 ECAB 426 (2004). 
6

increased schedule award due to tinnitus, it is sufficient to require further development by 

OWCP.12

Accordingly, the Board will remand the case to OWCP. On remand, it should further 

develop the medical record to determine whether appellant is entitled to an increased schedule 

award due to tinnitus. Following this and such further development as OWCP deems necessary, 

it shall issue a de novo decision. 

CONCLUSION 

The Board finds that this case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated January 29, 2014 is set aside and the case remanded for further 

development consistent with the above opinion. 

Issued: May 1, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 12 E.J., Docket No. 09-1481 (issued February 19, 2010).