United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.W., Appellant 

and 

DEPARTMENT OF LABOR, MINE SAFETY & 

HEALTH ADMINISTRATION, Indiana, PA, 

Employer 

__________________________________________ 

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Docket No. 16-1036 

Issued: August 10, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On April 20, 2016 appellant timely appealed a March 31, 2016 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 the claim. 

ISSUE 

The issue is whether appellant has met his burden of proof to establish a ratable hearing 

loss. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

 Appellant, a 63-year-old retired supervisory mine safety and health inspector, has an 

accepted claim for bilateral sensorineural hearing loss which arose on or about July 23, 2004.2

 In 

its March 25, 2016 acceptance of the claim, OWCP advised appellant to file for a schedule award 

(Form CA-7) noting that the “medical evidence ... establishes that you have permanent partial 

impairment as a result of your employment-related hearing loss.” Appellant thereafter filed a 

claim for a schedule award (Form CA-7) on April 7, 2016. 

Dr. Allison Ford Harbart, a Board-certified otolaryngologist and OWCP-referral 

physician, examined appellant on March 14, 2016 and diagnosed bilateral sensorineural hearing 

loss, which she attributed, at least in part, to his federal occupational exposure. Her evaluation 

included a March 14, 2016 audiogram, which noted losses at the frequencies of 500, 1,000, 

2,000, and 3,000 cycles per second. The right ear losses were recorded as 10, 5, 15, and 25 

decibels (dB). The left ear losses were recorded as 15, 10, 20, and 35 dB.3

OWCP referred the case record, including Dr. Harbart’s recent examination findings, to 

its district medical adviser (DMA) to determine the extent of any permanent functional loss of 

hearing, if any. In a report dated March 30, 2016, the district medical adviser, Dr. Jeffrey M. 

Israel, a Board-certified otolaryngologist, noted that appellant was exposed to hazardous noise 

from his work-related activities. He reviewed a series of employing establishment audiograms 

that showed a successive yearly progressive high frequency loss. Dr. Israel indicated that the 

most recent audiogram of March 14, 2016 showed normal hearing in both ears up to 4 kilohertz 

(KHz), the right ear showing an angled drop to the 50 dB level at 8 KHz and the left ear a bit 

worse and asymmetric dropping to 65 dB at 8 KHz. Utilizing the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) he found both 

right and left monaural loses at 0 and the binaural loss at 0.4 

By decision dated March 31, 2016, OWCP denied appellant’s claim for a schedule award. 

It found that the medical evidence of record failed to establish a ratable hearing loss under the 

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

LEGAL PRECEDENT 

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions and organs of the body.5

 FECA, 

 2

 Appellant voluntarily retired effective December 31, 2015. 

3

 Dr. Harbart also reviewed the reported results of a series of employer-administered audiograms dating back to 

1990. She noted that appellant had a mild hearing loss in his left ear when he started work in the early 1990s, and 

since then, his bilateral hearing gradually declined over the course of his almost 25-year tenure with the employing 

establishment. 

4

 The DMA noted that the bulk of appellant’s hearing impairment was located in the frequencies (4,000 to 8,000 

Hz) not compensated for under FECA. 

5

 For complete loss of hearing of one ear, an employee shall receive 52 weeks’ compensation. 5 U.S.C. 

§ 8107(c)(13). For complete loss of hearing of both ears, an employee shall receive 200 weeks’ compensation. Id.
3

however, does not specify the manner by which the percentage loss of a member, function or 

organ shall be determined. To ensure consistent results and equal justice under the law, good 

administrative practice requires the use of uniform standards applicable to all claimants. The 

implementing regulations have adopted the A.M.A., Guides as the appropriate standard for 

evaluating schedule losses.6

 Effective May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).7

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

frequency are added up and averaged.8

 Then, the “fence” of 25 dBs is deducted because, as the 

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

everyday speech under everyday conditions.9 The remaining amount is multiplied by a factor of 

1.5 to arrive at the percentage of monaural hearing loss.10 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.11

ANALYSIS 

The Board finds that appellant has not met his burden of proof to establish a ratable 

hearing loss. Based on the March 14, 2016 audiogram interpreted by Dr. Harbart, appellant’s 

right ear hearing losses at 500, 1,000, 2,000, and 3,000 Hz were 10, 5, 15, and 25 dBs, which 

totaled 55 dBs. His left ear losses were 15, 10, 20, and 35 dBs, which totaled 80 dBs. The right 

ear hearing loss resulted in an average loss of 13.75 (55 ÷ 4) dBs, and the left ear loss averaged 

20 (80 ÷ 4) dBs. After subtracting the 25 dB fence, both the right ear and left ear losses were 

reduced to a negative number (-11.25 and -5, respectively). When multiplied by 1.5, the 

resulting monaural loss in each ear was 0 percent. The March 14, 2016 audiogram results also 

showed zero percent binaural hearing loss. The above-noted calculations are consistent with 

Dr. Israel, the DMA’s March 30, 2016 findings. Accordingly, OWCP properly determined that 

appellant did not have a ratable hearing loss under the A.M.A., Guides (6th ed. 2009).12 

 6

 20 C.F.R. § 10.404 (2014). 

7 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, 

Chapter 2.808.6a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010). 

8 See Section 11.2, Hearing and Tinnitus, A.M.A., Guides 248-51 (6th ed. 2009). 

9 Id. at 250. 

10 Id. at 250-51. 

11 Id. at 251. 

12 OWCP’s March 25, 2016 statement to the contrary is not supported by the record, and it predated the DMA’s 

review of appellant’s most recent audiogram. 
4

CONCLUSION 

Appellant has not met his burden of proof to establish a ratable hearing loss. 

ORDER 

IT IS HEREBY ORDERED THAT the March 31, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 10, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board