United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.R., Appellant 

and 

DEPARTMENT OF JUSTICE, DRUG 

ENFORCEMENT ADMINISTRATION, 

Laredo, TX, Employer 

__________________________________________ 

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Docket No. 15-1607 

Issued: November 9, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 21, 2015 appellant filed a timely appeal from a February 20, 2015 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).1

 Pursuant to the Federal 

Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of the case.3

 1

 The Board notes that, during the pendency of this appeal, OWCP issued a September 17, 2015 decision denying 

appellant’s claim for a schedule award. This decision, however, is null and void as the Board and OWCP may not 

simultaneously have jurisdiction over the same issue. See 20 C.F.R. § 501.2(c)(3); see also Terry L. Smith, 51 

ECAB 182 (1999); Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E.

Billings, 41 ECAB 880 (1990). 

2

 5 U.S.C. § 8101 et seq. 

3

 Appellant submitted new evidence on appeal. However, the Board cannot consider evidence that was not before 

OWCP at the time of its final decision. See 20 C.F.R. § 501.2(c)(1). 
2

ISSUE 

The issue is whether appellant has met his burden of proof to establish that he is entitled 

to a schedule award for his employment-related hearing loss. 

FACTUAL HISTORY 

On April 23, 2014 appellant, then a 54-year-old supervisory special agent/resident in 

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

due to exposure to noise at work and that he first became aware of his condition and realized that 

it was caused or aggravated by his employment beginning May 21, 2004. The employing 

establishment noted that he last had exposure to conditions alleged to have caused his condition 

on March 28, 2014. 

By letter dated May 1, 2014, OWCP informed appellant of the type of evidence needed to 

support his claim and requested that he submit such evidence within 30 days. 

OWCP then received a May 14, 2014 statement from appellant in which he described his 

employment history as a drug enforcement agent, his training with side arms and law 

enforcement training. Appellant indicated that this entailed exposure to the noise of several 

thousands of rounds of weapons fire. He indicated that despite wearing the required double 

protection hearing devices he felt that his hearing loss was caused by his prolonged noise 

exposure during his mandatory shooting qualifications with his issued firearm. 

OWCP also received records pertaining to noise exposure and annual audiograms 

obtained through an employing establishment hearing conservation program. 

On December 22, 2014 OWCP referred appellant, together with a statement of accepted 

facts to Dr. William Carl Smith, a Board-certified otolaryngologist, for a second opinion 

evaluation regarding the nature, extent and relationship of appellant’s hearing loss to his federal 

employment. 

In a January 21, 2015 report, Dr. Smith noted that the purpose of his examination was to 

determine if appellant had hearing loss secondary to noise exposure during his federal 

employment. He noted reviewing available medical records and examined appellant. Dr. Smith 

advised that the external canals of the ears were open and normal, bilaterally; the tympanic 

membranes were intact and normal, bilaterally; and the mastoids were normal, bilaterally. He 

noted that audiometric testing was performed on his behalf on that date. Dr. Smith advised that 

tympanograms and reflexes were normal and in excess of what would be normally predicated on 

the basis of presbycusis. He determined that the workplace exposure was of sufficient intensity 

and duration to have caused the bilateral sensorineural hearing loss. Dr. Smith diagnosed 

bilateral high-frequency sensorineural hearing loss which was due to appellant’s noise exposure 

in the course of his federal employment. He recommended a trial of hearing aids. Dr. Smith 
3

attached a copy of the January 21, 2015 audiogram and a certificate of acoustic 

impedance/admittance meter calibration.4

 

On February 12, 2015 an OWCP medical adviser reviewed the otologic and audiologic 

testing performed on appellant by Dr. Smith and applied OWCP’s standardized procedures to his 

evaluation. He determined that maximum medical improvement was achieved on 

January 21, 2015. The medical adviser noted the pure tone audiometry of January 21, 2015 was 

used as it was the most recent and met all of OWCP’s standards. He explained that the noise 

exposure on the job was deemed sufficient to implicate it as a contributing factor to appellant’s 

hearing loss. The medical adviser utilized the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides) and determined that 

appellant had zero percent hearing loss. He also recommended authorizing hearing aids. 

By decision dated February 20, 2015, OWCP accepted appellant’s claim for hearing loss 

due to his employment-related hearing exposure. However, it determined that his hearing loss 

was not severe enough to be considered ratable and determined that he was not entitled to 

schedule award compensation for hearing loss. OWCP further determined that the medical 

evidence established that appellant was entitled to medical benefits for the effects of his injury 

and that he would benefit from hearing aids, if recommended by his physician. 

LEGAL PRECEDENT 

The schedule award provision of FECA5 and its implementing regulations6 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 A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.7 

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 cps 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.8 The remaining amount is multiplied by a 

factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is 

 4

 Testing for the right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second (cps) revealed 

decibel losses of 15, 15, 15, and 50 respectively. Testing for the left ear at the frequency levels of 500, 1,000, 2,000, 

and 3,000 cps revealed decibel losses of 20, 15, 15, and 45 respectively. 

5

 5 U.S.C. § 8107. 

6

 20 C.F.R. § 10.404. 

7 Id 

8 See A.M.A., Guides 250. 
4

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.9

 

ANALYSIS 

The Board finds that the evidence of record is insufficient to establish that appellant is 

entitled to a schedule award for his employment-related hearing loss. 

On February 12, 2015 an OWCP medical adviser reviewed the otologic and audiologic 

testing performed on appellant by Dr. Smith, a Board-certified otolaryngologist, and properly 

applied OWCP’s standardized procedures to this evaluation. Testing for the right ear at the 

frequency levels of 500, 1,000, 2,000, and 3,000 cps revealed decibel losses of 15, 15, 15, and 50 

respectively. These decibel losses were totaled at 95 decibels and were divided by 4 to obtain 

the average hearing loss of 23.75 decibels. This average loss was then reduced by 25 decibels 

(25 decibels being discounted as discussed above) to equal a negative figure. Testing for the left 

ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cps revealed decibel losses of 20, 15, 

15, and 45 respectively. These decibel losses total 95 decibels and when divided by 4 result in 

an average hearing loss of 23.75 decibels. This average loss when reduced by 25 decibels (25 

decibels being discounted as discussed above) equals a negative figure. The medical adviser 

properly concluded that the calculations showed that appellant did not have a ratable hearing loss 

under the relevant standards of the A.M.A., Guides. 

Because these averages are below the fence of 25 decibels, appellant is deemed to have 

no impairment in his ability to hear everyday sounds under everyday listening conditions.10 This 

does not mean that he has no hearing loss. It means that the extent or degree of loss is not 

sufficient to show a practical impairment in hearing according to the A.M.A., Guides. The 

A.M.A., Guides set a threshold for impairment and appellant’s occupational hearing loss did not 

cross that threshold. Thus the OWCP medical adviser applied the proper standards to the 

January 21, 2015 audiogram. Appellant’s hearing loss was not ratable. For this reason, the 

Board finds that OWCP properly denied a schedule award for his nonratable hearing loss. 

The Board finds that there is no current medical evidence of record supporting that 

appellant has a ratable hearing loss under OWCP’s standardized procedures for rating hearing 

impairment. 

Appellant may request a 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. 

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

10 See L.F., Docket No. 10-2115 (issued June 3, 2011). 
5

CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish that he is 

entitled to a schedule award for his employment-related hearing loss. 

ORDER 

IT IS HEREBY ORDERED THAT the February 20, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 9, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board