United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.Y., Appellant 

and 

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer 

__________________________________________ 

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Docket No. 16-0767 

Issued: July 25, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 7, 2016 appellant filed a timely appeal from a February 22, 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 this case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish hearing loss in the 

performance of duty. 

FACTUAL HISTORY 

On May 15, 2015 appellant, then a 59-year-old small craft operator leader, filed an 

occupational disease claim (Form CA-2) alleging bilateral hearing loss occurred in the 

 1

 5 U.S.C. § 8101 et seq.
2

performance of duty on or before September 1, 2013. He explained that he first became aware of 

his hearing loss during a September 1, 2013 audiometric evaluation as part of an employing 

establishment hearing conservation program. Appellant retired from the employing 

establishment on July 1, 2015. 

Appellant submitted annual employing establishment audiograms from June 1984 

through June 24, 2015. These audiograms show a progressive, bilateral, nonratable hearing loss. 

A June 24, 2015 audiogram showed decibel losses at the frequency levels of 500, 1,000, 2,000, 

and 3,000 hertz (Hz) in the right ear of 15, 5, 15, and 20, respectively. Testing at the same 

frequency levels for the left ear revealed decibel losses of 20, 10, 30, and 20 respectively.2

 

On September 8, 2015 OWCP requested that appellant provide a detailed history of his 

federal and nonfederal employment, sources of hazardous noise, duration of exposure, and the 

use of hearing protection. It also requested that the employing establishment provide a history of 

appellant’s hazardous noise exposure. 

Appellant provided a May 15, 2015 employment history and September 14, 2015 letter, 

noting that prior to working at the employing establishment he was exposed to shop noise in 

1974 as a tire mechanic. From 1979 to 1999, he worked at the employing establishment as a 

rigger, with exposure to “chainfalls, grinders, shipping guns, needle guns, diesel engines, pumps, 

cranes, and forklifts.” Appellant wore hearing protection provided by the employing 

establishment. From 1999 through his retirement on June 30, 2015, he worked as a long bronc 

operator at the employing establishment, with exposure to boat engine noise for eight hours a 

day. Appellant asserted that the employing establishment did not provide hearing protection. 

In a May 27, 2015 letter, appellant’s supervisor affirmed that from 1999 to 2015 

appellant was exposed to noise from engines, chippers, sanders, and the shipyard environment. 

Hearing protection was available. In a September 17, 2015 letter, the supervisor noted that the 

information appellant provided on his Form CA-2 was correct. An employing establishment 

safety official noted on September 21, 2015 that a 2011 industrial hygiene survey listed noise 

dosimetry results from February 6, 2009 for five individuals on “log broncs” or light tug vessels. 

The eight-hour time-weighted averages ranged from 79.5 to 84.9 decibels. 

On January 26, 2016 OWCP obtained a second opinion from Dr. Gerald G. Randolph, a 

Board-certified otolaryngologist. Dr. Randolph reviewed the medical record and a statement of 

accepted facts. He obtained an audiogram showing decibel losses at the frequency levels of 500, 

1,000, 2,000, and 3,000 Hz in the right ear of 20, 10, 20, and 25, respectively. Testing at the 

same frequency levels for the left ear revealed decibel losses of 20, 10, 35, and 35 respectively. 

Tympanometry was within normal limits bilaterally. Dr. Randolph diagnosed a bilateral 

sensorineural hearing loss. He opined that appellant’s occupational noise exposure prior to 1999 

was not of sufficient intensity or duration to cause a hearing loss as he utilized hearing 

protection. Dr. Randolph found that since 1999, “it appeared [appellant] has been employed in 

areas where noise exposure has not been a significant hazard” because “noise dosimetry studies 

failed to reveal time-weighted averages above 85 decibels.” He opined that the “sloping-type 

nature of [appellant’s] hearing loss suggest[ed] that the hearing loss is largely due to a 

 2

 Appellant also submitted a May 15, 2015 audiometric evaluation performed by a private hearing aid clinic. 
3

combination of his diabetes mellitus with hypertension and possibly to some extent the aging 

process.” Dr. Randolph therefore concluded that appellant’s hearing loss was not due to 

occupational noise exposure, as it developed after he “was removed from areas of significant 

noise exposure” in 1999. He recommended bilateral hearing aids. Dr. Randolph noted that the 

“need for hearing aids, [was] likely due to causes other than his industrial noise exposure.” 

By decision dated February 22, 2016, OWCP denied the claim, finding that causal 

relationship had not been established, based on Dr. Randolph’s report as the weight of the 

medical evidence. It accepted appellant’s account of noise exposure as factual. OWCP found, 

however, that Dr. Randolph’s report was sufficient to establish that appellant’s occupational 

noise exposure was not employment related. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of proof to establish 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 filed within the applicable 

time limitation, that an injury was sustained while in the performance of duty as alleged, and that 

any disability or specific condition for which compensation is claimed is causally related to the 

employment injury.3 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or an occupational disease.4 

In cases of injury on or after September 7, 1974, section 8122(a) of FECA provides that 

an original claim for compensation for disability or death must be filed within three years after 

the injury or death. Compensation for disability may not be allowed if a claim is not filed within 

that time unless: (1) the immediate superior had actual knowledge of the injury or death within 

30 days. The knowledge must be such as to put the immediate superior reasonably on notice of 

an on-the-job injury or death; or (2) written notice of injury or death as specified in section 8119 

was given within 30 days.5 

Appellant has the burden of establishing by the weight of the reliable, probative, and 

substantial evidence that his hearing loss condition was causally related to noise exposure in his 

federal employment.6 Neither the condition becoming apparent during a period of employment, 

nor the belief of the employee that the hearing loss was causally related to noise exposure in 

federal employment, is sufficient to establish causal relationship.7 

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

 3 Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989). 

4 Michael E. Smith, 50 ECAB 313 (1999). 

5

 5 U.S.C. § 8122(a). 

6 Stanley K. Takahaski, 35 ECAB 1065 (1984). 

7 See John W. Butler, 39 ECAB 852, 858 (1988). 
4

presence or existence of the disease or condition for which compensation is claimed;8 (2) a 

factual statement identifying employment factors alleged to have caused or contributed to the 

presence or occurrence of the disease or condition;9

 and (3) medical evidence establishing the 

employment factors identified by the claimant were the proximate cause of the condition for 

which compensation is claimed or, stated differently, medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the claimant.10 

The medical evidence required to establish causal relationship generally is rationalized medical 

opinion evidence. The opinion of the physician must be based on a complete factual and medical 

background of the employee, must be one of reasonable certainty, and must be supported by 

medial rationale explaining the nature of the relationship between the diagnosed condition and 

the specific employment factors identified by the employee.11

Once OWCP undertakes development of the record, it must do a complete job in 

procuring medical evidence that will resolve the relevant issues presented in the case.12 

ANALYSIS 

OWCP accepted that appellant was exposed to hazardous noise at the employing 

establishment from 1979 until his retirement on June 30, 2015. The primary issue in this case is 

whether appellant met his burden of proof to establish an employment-related hearing loss. 

In development of this claim OWCP obtained a second opinion from Dr. Randolph. 

Dr. Randolph was provided with a copy of the medical records and a statement of accepted facts. 

He obtained an audiogram which showed decibel losses at the frequency levels of 500, 1,000, 

2,000, and 3,000 Hz in the right ear of 20, 10, 20, and 25, respectively. Testing at the same 

frequencies in the left ear revealed decibel losses of 20, 10, 35, and 35. Tympanometry was 

within normal limits bilaterally. In response to questions submitted with the referral, 

Dr. Randolph noted that there was not a significant variation of the history of noise exposure 

from that included in the statement of accepted facts. He further noted that the audiogram he 

performed revealed a sloping bilateral sensorineural hearing loss compatible with hearing loss 

due to a combination of presbycusis and his diabetes mellitus with hypertension. Dr. Randolph 

opined that the accepted workplace exposure was of sufficient intensity and duration prior to 

1999 to have caused and/or aggravated loss of hearing. He added that since 1999 appellant was 

employed in areas where noise exposure had not been a significant hazard. Dr. Randolph also 

opined that appellant’s diabetes with hypertension was likely an aggravating factor to his hearing 

loss. He concluded by finding that appellant’s sensorineural hearing loss was not causally 

related to the accepted noise exposure from his federal employment and that although he is a 

candidate for hearing aids they are needed for causes other than his accepted work exposures. 

 8 Michael R. Shaffer, 55 ECAB 386 (2004). 

9 Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001). 

10 Beverly A. Spencer, 55 ECAB 501 (2004). 

11 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005). 

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

The Board finds that the January 26, 2016 report of Dr. Randolph is insufficient on the 

issue of causal relationship as his opinion is not well reasoned and is inconsistent. Dr. Randolph 

acknowledged appellant’s occupational noise exposures, but concluded that appellant’s hearing 

loss was not employment related because it was “largely” due to diabetes, hypertension, and 

presbycusis.13 However, he also provided a contradictory opinion that the accepted workplace 

noise exposure was of sufficient intensity and duration prior to 1999 to have caused and/or 

aggravated hearing loss. Dr. Randolph failed to provide any rationale or explanation for these 

disparate findings on the issue of causal relationship. The inconsistent and equivocal nature of 

his opinion reduces its probative value.14 

It is well established that proceedings under FECA are not adversarial in nature and while 

the claimant has the burden of proof to establish entitlement to compensation, OWCP shares the 

responsibility in the development of the evidence.15 The Board finds that this case is not in 

posture for decision and shall be remanded for further development. On remand, OWCP should 

obtain a supplemental opinion regarding the issue of whether the accepted workplace exposure 

was sufficient in intensity and duration to be a cause or contributing factor to the hearing loss 

identified, as well as the need for hearing aids.16 After such further development as it deems 

necessary, OWCP shall issue a de novo decision. 

On appeal, appellant contends that his hearing loss was caused, in part, by continuous 

exposure to hazardous noise at the employing establishment for 36 years. He asserts that he was 

exposed to continuous noise at work as a small craft operator from 1999 through 2015. 

Appellant notes that the employing establishment did not conduct noise surveys until 2011, after 

four-stroke engines were in use. He explains that before 2011, the craft used two-stroke diesel 

engines which were significantly louder. As set forth above, the case will be remanded for 

additional development. 

CONCLUSION 

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

 13 There is no appointment under FECA. See C.J., Docket No. 15-1295 (issued November 24, 2015). Beth P. 

Chaput, 37 ECAB 158 (1985) (it is not necessary to show a significant contribution of employment factors to a 

diagnosed condition to establish causal relationship). 

14 D.D., 57 ECAB 734 (2006). 

15 P.K., Docket No. 08-2551 (issued June 2, 2009). 

16 See Glenn C. Chasteen, 42 ECAB 493 (1991); Beth P. Chaput, supra note 13 (where the medical evidence 

reveals that factors of employment contributed in any way to the disabling condition, such condition is considered 

employment related for the purpose of compensation under FECA). 
6

ORDER 

IT IS HEREBY ORDERED THAT the February 22, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case remanded for additional 

development consistent with this opinion. 

Issued: July 25, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board