United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.H., Appellant 

and 

TENNESSEE VALLEY AUTHORITY, CSB 

MOD SVS, Chattanooga, TN, Employer 

__________________________________________ 

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Docket No. 16-0228 

Issued: June 8, 2016 

Appearances: Case Submitted on the Record

Ronald K. Bruce, 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 January 24, 2014 appellant, through counsel, filed a timely appeal from a 

December 16, 2013 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 causally 

related to factors of his federal employment. 

FACTUAL HISTORY 

On November 15, 2012 appellant, then a 61-year-old boilermaker/welder, filed an 

occupational disease claim (Form CA-2) alleging that he sustained hearing loss as a result of 

employment-related noise exposure. He first became aware of his condition on January 1, 1991 

 1

 5 U.S.C. § 8101 et seq.
2

and of its relationship to his employment on October 11, 2012. Appellant worked at the 

employing establishment intermittently until March 9, 1991 and retired from nonfederal 

employment in 2006. 

By letter dated December 6, 2012, OWCP requested additional factual information from 

both appellant and the employing establishment. Appellant was requested to provide 

information regarding his employment history, when he related his hearing loss to conditions of 

employment, and all nonoccupational exposure to noise. OWCP also requested that he provide 

medical documentation pertaining to any prior treatment he received for ear or hearing problems. 

It requested that the employing establishment provide noise survey reports for each site where 

appellant worked, the sources and period of noise exposure for each location, and copies of all 

medical examinations pertaining to hearing or ear problems. 

An official employing establishment employment history was submitted which showed 

appellant’s intermittent employment from October 5, 1977 through September 19, 1983 as a 

boilermaker/welder. An employing establishment job history summary also revealed 

intermittent employment as a boilermaker/welder from September 17, 1984 through 

March 9, 1991. 

In an undated narrative statement, appellant responded to OWCP development letter 

stating that he began his employment with the employing establishment in 1977 where he 

worked as a boilermaker/welder at the Paradise and Shawnee power plants. He was exposed to 

loud noises produced by gouging, beating on steel, pneumatic chisels, jack hammers, large fans, 

large pumps, grinders, and units popping off. Appellant noted that at first he did not wear ear 

protection. He worked over eight hours a day, five days per week and was exposed to noise on a 

daily basis. Appellant reported that he also worked in nonfederal employment as a boilermaker 

at Blacksmith Union from 1977 to 2006 when he retired. During this time, he worked for the 

employing establishment as well as nonfederal contractors. Appellant reported no other hobbies 

involving loud noises or history of hearing loss. He stated that he first became aware of his 

hearing loss in 1991 as it gradually worsened. Appellant first realized his hearing loss was work 

related on October 11, 2012 after seeking treatment with an otolaryngologist. 

In a September 18, 2012 medical report, Dr. Uday Dave, a Board-certified 

otolaryngologist, reported that appellant complained of hearing difficulty and noticed a gradual 

worsening of his hearing for the past 20 years. He noted that appellant worked for 

approximately 30 years in an employing establishment plant, and had been around significant 

noise as a result of this. An audiogram was performed that same date which revealed the 

following decibel (dB) losses at 500, 1,000, 2,000, and 3,000 hertz (Hz): 15, 15, 20, and 40 for 

the right ear and 5, 0, 55, and 65 for the left ear. Speech reception thresholds were 15 dB on the 

right and 10 dB on the left and speech discrimination scores were 88 percent on the right and 80 

percent on the left. Dr. Dave diagnosed bilateral sensorineural hearing loss with a history of 

exposure to noises, chronic not controlled. He noted that appellant could benefit from hearing 

aids. In an October 18, 2012 addendum, Dr. Dave reported that appellant initially informed him 

that he worked at the employing establishment for 30 years. He noted that this was incorrect as 

appellant worked for 30 years as a boilermaker, with several of these years being in employing 

establishment plants. 
3

By letter dated February 4, 2013, the employing establishment controverted the claim 

arguing that appellant did not timely file his hearing loss claim. It further stated that he worked 

there intermittently, totaling only four years, and was last exposed to factors to which he 

attributed his hearing loss to in 1991. The employing establishment noted that appellant had 

only three hearing tests performed while employed there and the audiograms documented no 

hearing loss or shift in hearing to signify evidence of injury. 

The employing establishment submitted audiograms dated October 5, 1977, October 17, 

1980, and February 18, 1988. Appellant’s October 5, 1977 audiogram revealed the following dB 

losses at 500, 1,000, 2,000, and 3,000 Hz: 5, 0, 0, and 0 for the right ear and 0, 0, 0, and 15 for 

the left ear. The February 18, 1988 audiogram revealed the following dB losses at 500, 1,000, 

2,000, and 3,000 Hz: 5, 0, 0, and 0 for the right ear and 5, 0, 0, and 15 for the left ear. 

In a February 5, 2013 statement of accepted facts (SOAF), OWCP provided a summary 

of appellant’s federal and nonfederal employment, stating that he began his federal employment 

on October 5, 1977 and was last exposed to noise in 2006 when he retired from his nonfederal 

employment. Appellant first became aware of his hearing loss in January 1991 when he realized 

he had difficulty understanding speech. He was exposed to noise in his federal employment at 

the employing establishment as a boilermaker/welder intermittently from October 5, 1977 

through March 9, 1991. Appellant was exposed to noise from gouging, beating on steel, 

pneumatic chisels, jack hammers, large fans, large pumps, grinders, and the units popping off. 

Earplugs were worn later in employment, up to 93 dB, and he was exposed to loud noise for 

eight hours per day, five days per week.2

 Appellant was also exposed to noise at his nonfederal 

employment. From 1977 to 2006, he worked as a boilermaker/welder at Blacksmith Union for 

eight hours per day, five days per week. Appellant was exposed to noise from gouging, beating 

on steel, pneumatic chisels, jack hammers, large fans, large pumps, grinders, and the units 

popping off. Earplugs were worn. 

OWCP referred appellant, the SOAF, and the case record to Dr. Andrew S. Mickler, a 

Board-certified otolaryngologist, for a second opinion evaluation on February 8, 2013. 

Audiometric testing performed that same date revealed the following dB losses at 500, 1,000, 

2,000, and 3,000 Hz: 25, 25, 25, and 40 for the right ear and 20, 25, 55, and 55 for the left ear. 

Speech reception thresholds were 25 dB on the right and 30 dB on the left while auditory 

discrimination scores were 96 percent bilaterally. Dr. Mickler noted that no prior audiograms 

were provided for review from the beginning of appellant’s federal employment. He stated that 

the workplace noise exposure was sufficient as to intensity and duration to have caused the loss 

in question. Dr. Mickler diagnosed bilateral sensorineural hearing loss and reported that it was 

impossible to determine the cause as there were no audiograms from the beginning or end of 

appellant’s federal civilian employment. He noted that appellant also had other nonfederal 

employment which consisted of noisy environments. Dr. Mickler explained that it would be 

impossible to determine which of his jobs contributed to his hearing loss and to what extent. 

 2

 The SOAF noted the intermittent months appellant was employed by the employing establishment: 2 months in 

1977; 2 months in 1978; 5 months in 1980; 2 months in 1981; 3.5 months in 1982; 3 months in 1983; 3 months in 

1984; 8 months in 1985; 9 months in 1986; 3 months in 1988; 3.5 months in 1989; 7 months in 1990; and 2 months 

in 1991. 
4

On March 7, 2013 OWCP routed Dr. Mickler’s report to Dr. Eric Puestow, an OWCP 

district medical adviser (DMA) for an opinion pertaining to a schedule award. Dr. Puestow 

reviewed Dr. Mickler’s report and noted that his second opinion audiogram performed 22 years 

after appellant left federal employment may not reflect noise damage encountered during this 

employment. He requested employment audiograms as close to the onset and cessation of his 

federal civilian employment. 

OWCP routed the October 5, 1977 and February 18, 1988 audiograms to Dr. Mickler and 

the DMA for review. 

In a supplemental March 12, 2013 report, the DMA reported that he reviewed 

audiograms dated October 5, 1977 and February 18, 1988, which demonstrated that appellant 

had normal, excellent hearing. He concluded that, as of February 18, 1988, appellant did not 

have sensorineural hearing loss and a schedule award was not appropriate in this case. 

In a March 19, 2013 report, Dr. Mickler reported that appellant’s hearing was essentially 

normal at the beginning of his employment. He noted that comparison of the October 5, 1977 

and February 18, 1988 audiograms showed no standard threshold shift in either ear. When asked 

if the workplace noise exposure was sufficient as to intensity and duration to have caused the 

loss in question, Dr. Mickler reported that, when comparing the October 5, 1977 and 

February 18, 1988 audiograms, there was no evidence of noise-induced hearing loss. He opined 

that appellant’s bilateral hearing loss was not due to noise exposure from his federal 

employment. 

By decision dated May 30, 2013, OWCP denied appellant’s hearing loss claim, finding 

that he failed to establish fact of injury because the evidence did not support that the injury 

and/or events occurred. 

On June 11, 2013 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

At the October 21, 2013 hearing, appellant described the employment-related noise he 

was exposed to while working for the employing establishment beginning in 1977. He reported 

that his last audiogram was completed on February 18, 1988 and there was no exit audiogram 

completed in 1991 when he left his federal employment. Appellant retired from nonfederal 

employment in 2006. Counsel argued that appellant was exposed to noise from his federal 

employment for 15 months following his last February 18, 1988 audiogram to when he left in 

1991, which caused his hearing loss. He stated that appellant’s most recent 2013 audiogram 

revealed that he had work-related hearing loss because he would be entitled to an impairment 

rating when compared to the October 1977 and February 1988 audiograms. Counsel further 

argued that appellant’s employment at the employing establishment did not have to be the sole 

cause of his hearing loss, but that it had contributed to his condition. 

By letter dated November 19, 2013, the employing establishment reviewed the hearing 

transcript and provided comments for consideration. It noted that appellant worked for the 

employing establishment for brief and intermittent periods from October 1977 until March 1991. 

During this period, appellant was fitted for and provided mandatory hearing protection. 
5

Audiograms were performed which showed he had no standard threshold shift in either ear. The 

employing establishment argued that no evidence was submitted that established a noise-induced 

hearing loss as a result of appellant’s federal employment. It noted that only a small portion of 

his career was spent as a boilermaker for the employing establishment. Appellant failed to 

produce any audiogram or definitive medical opinion to establish that he had a hearing loss for 

the period February 18, 1988 through March 9, 1991, and no audiograms were provided for the 

periods of his nonfederal employment. It further explained that an exit audiogram was not 

performed in 1991 because he was employed for very brief periods, consisting mainly of a few 

days, or weeks. 

By letter dated December 3, 2013, counsel for appellant asserted that appellant’s total 

time at the employing establishment added up to four and one-third years. He argued that four 

years of exposure to loud noises was sufficient to contribute to a work-related hearing loss. 

Counsel further disagreed with the employing establishment’s statements on hearing protection 

noting that there was no mandatory use of hearing protection. 

By letter dated December 10, 2013, the employing establishment stated that it’s Hearing 

Conservation Program and Hearing Protection Standard required the use of mandatory hearing 

protection. 

By decision dated December 16, 2013, the OWCP hearing representative affirmed the 

May 30, 2013 decision finding that appellant failed to establish fact of injury. 

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

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.5

 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.6

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

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

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

6 See John W. Butler, 39 ECAB 852, 858 (1988). 
6

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 

presence or existence of the disease or condition for which compensation is claimed;7 (2) a 

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

presence or occurrence of the disease or condition;8 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.9

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.10

ANALYSIS 

The Board finds that appellant failed to meet his burden of proof to establish that he 

developed bilateral hearing loss due to factors of his employment as a boilermaker/welder.11

Appellant must establish all of the elements of his claim in order to prevail. In its 

May 30 and December 16, 2013 decisions, OWCP found that he had not established fact of 

injury. The Board finds that appellant has alleged that he was exposed to employment-related 

noise while working for the employing establishment as detailed in the SOAF and his narrative 

statements. The record also establishes a firm medical diagnosis of bilateral sensorineural 

hearing loss provided by both Dr. Dave and Dr. Mickler, as well as Dr. Puestow, the DMA. The 

question remains whether appellant’s alleged federal employment noise exposure caused his 

bilateral sensorineural hearing loss.12 

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

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

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

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

11 In a case of an occupational disease, the time for filing a claim begins to run when the employee first becomes 

aware, or reasonably should have been aware, of a possible relationship between the condition and his employment. 

By factors of federal employment, the time limitation begins to run on the date of the last exposure to the implicated 

factors. See Larry E. Young, 52 ECAB 264 (2001). OWCP has accepted that the claim was timely filed. The Board 

has held that a program of annual audiometric examinations conducted by an employing establishment in 

conjunction with an employee testing program for hazardous noise exposure is sufficient to constructively establish 

actual knowledge of a hearing loss, such as to put the immediate supervisor on notice of an on-the-job injury. See 

W.P., Docket No. 15-0597 (issued January 27, 2016). 

12 See Leon Thomas, 52 ECAB 202 (2001). 
7

The Board finds that the medical evidence of record does not establish that appellant 

sustained hearing loss causally related to his federal employment as a boilermaker/welder at the 

employing establishment.13

In support of his claim, appellant submitted a September 18, 2012 report from Dr. Dave 

who diagnosed bilateral sensorineural hearing loss. Dr. Dave provided no opinion regarding the 

cause of appellant’s hearing loss and simply noted a history of exposure to noise. The Board has 

held that medical evidence that does not offer any opinion regarding the cause of an employee’s 

condition is of limited probative value.14 

Following Dr. Dave’s report, OWCP referred appellant to Dr. Mickler for a second 

opinion examination. While Dr. Mickler diagnosed bilateral sensorineural hearing loss, he 

opined that the hearing loss was not due to noise exposure from his federal employment. He 

explained that appellant’s hearing was essentially normal at the beginning of his employment 

and comparison of the October 5, 1977 and February 18, 1988 audiograms showed no standard 

threshold shift in either ear and no evidence of occupational noise-induced hearing loss from the 

employing establishment. An OWCP DMA reviewed the case record and agreed that the 

October 5, 1977 and February 18, 1988 audiograms demonstrated that appellant had normal, 

excellent hearing. 

The Board has recognized that a claimant may be entitled to a schedule award for hearing 

loss, even after exposure to hazardous noise has ceased, if causal relationship is supported by the 

medical evidence of record.15 The Board also notes that there is no requirement that the federal 

employment be the only cause of appellant’s hearing loss. If work-related exposures caused, 

aggravated, or accelerated his condition, he is entitled to compensation.16 In this case, there is no 

medical evidence before OWCP at the time of its December 16, 2013 decision containing an 

opinion that appellant’s hearing loss was work related. Appellant failed to submit any auditory 

testing around 1991, the time he left his federal employment, which showed a decrease in 

hearing. Moreover, he continued to be exposed to employment-related noise working as a 

boilermaker in his nonfederal employment for an additional 15 years following his retirement 

from federal employment in 2006. 

The only medical evidence containing a definitive opinion as to the relation of appellant’s 

hearing loss and factors of his federal employment is the March 19, 2013 report of Dr. Mickler, 

which found that his hearing loss was not related to industrial noise exposure with the employing 

establishment. The Board finds that appellant has not submitted any medical evidence 

supportive of a causal relationship between his federal employment and his hearing loss, and 

thus has not met his burden to establish such a causal relationship.17

 13 W.C., Docket No. 15-668 (issued June 1, 2015). 

14 C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

15 See J.R., 59 ECAB 710, 713 (2008). 

16 See Beth P. Chaput, 37 ECAB 158, 161 (1985); S.S., Docket No. 08-2386 (issued June 5, 2008). 

17 See R.S., Docket No. 14-1995 (issued February 25, 2015). 
8

An award of compensation may not be based on surmise, conjecture, speculation, or on 

the employee’s own belief of causal relation.18 In the instant case, the record is without 

rationalized medical evidence establishing causal relationship between appellant’s occupational 

noise exposure and his bilateral hearing loss. Thus, appellant has failed to meet his burden of 

proof. 

Appellant may submit additional evidence, together with a written request for 

reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. 

§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607. 

CONCLUSION 

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

sustained hearing loss causally related to factors of his federal employment. 

ORDER 

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ 

decision dated December 16, 2013 is affirmed. 

Issued: June 8, 2016 

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 

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