United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.S., Appellant 

and 

DEPARTMENT OF THE ARMY, ARMY 

NATIONAL GUARD, Montgomery, AL, 

Employer 

__________________________________________ 

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Docket No. 16-1034 

Issued: October 4, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 20, 2016 appellant filed a timely appeal from an April 7, 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 has established more than two percent permanent 

impairment for binaural tinnitus, for which he received a schedule award. 

On appeal, appellant argues that he has greater than two percent impairment from tinnitus 

affecting activities of daily living, and that OWCP miscalculated his award of compensation. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On July 24, 2014 appellant, then a 53-year-old human resources officer, filed an 

occupational disease claim (Form CA-2) alleging hearing loss as a result of high levels of noise 

exposure from military and civilian equipment. He became aware of his condition and of its 

relationship to his employment on September 10, 2008. In a letter of the same date, appellant 

explained that his claim was based on additional hearing loss incurred since September of 2008 

due to hazardous noise conditions related to his employment.2

OWCP referred appellant to Dr. Dennis G. Pappas, a Board-certified otolaryngologist, for 

a second opinion evaluation. In a December 4, 2014 report, Dr. Pappas diagnosed appellant with 

sensorineural hearing loss. He opined that appellant’s hearing loss was due in part to noise 

exposure encountered in appellant’s civilian employment. Audiometric testing at the frequency 

levels of 500, 1,000, 2,000, and 3,000 cycles per second revealed the following: left ear 55, 45, 

50, and 55 decibels; right ear 50, 40, 30, and 50 decibels. Dr. Pappas recommended that 

appellant continue to wear a hearing aid. 

OWCP forwarded Dr. Pappas’ report to a district medical adviser (DMA) for review on 

January 12, 2015. In a January 13, 2015 report, the DMA calculated that appellant had a 

binaural hearing loss of 28 percent. He authorized hearing aids. 

By decision dated January 15, 2015, OWCP accepted appellant’s claim for bilateral 

sensorineural hearing loss. 

On January 23, 2015 appellant filed a claim for a schedule award (Form CA-7). 

By letter dated January 23, 2015, OWCP noted that it had not received sufficient 

evidence to expand appellant’s claim to include tinnitus. It requested that appellant submit 

additional evidence. 

In a report dated March 5, 2015, Dr. Pappas related that appellant had a history of noise 

exposure from his work and has filed previous hearing loss claims in 2001 and 2007 and in 2014. 

He also noted that despite hearing aid use, appellant’s tinnitus continued in both ears. 

Dr. Pappas specifically related that “the tinnitus is bothersome as it can interfere sometimes with 

sleep or routine daily activities. [Appellant] also reports difficulty concentrating and even 

reading because of the tinnitus symptoms. He has difficulty relaxing in this regard.... In my 

opinion, according to [appellant’s] history, hearing test findings, [appellant’s] hearing loss and 

tinnitus are due to noise exposure encountered with [appellant’s] federal civilian employment.” 

 2

 Appellant had previously received schedule awards for hearing loss under OWCP file numbers xxxxxx259 and 

xxxxxx128. In a decision dated May 17, 2001, under OWCP file number xxxxxx259, OWCP issued a schedule 

award for 15 percent binaural hearing impairment. In a decision dated December 22, 2008, under claim number 

xxxxxx128, it issued a schedule award for an additional 5 percent binaural hearing impairment, noting that 

appellant’s total binaural impairment was 20 percent. 
3

On March 12, 2015 OWCP requested more information from appellant’s treating 

physician on the issue of appellant’s tinnitus and whether it was related to duties of his federal 

employment. 

By decision dated April 14, 2015, OWCP issued a schedule award for an additional 8 

percent binaural hearing impairment, noting that appellant’s total impairment was 28 percent. 

On July 8, 2015 Dr. Pappas responded to OWCP’s March 12, 2015 letter, diagnosing 

appellant with hearing loss and explaining that tinnitus can be a symptom of hearing loss 

regardless of etiology. 

By decision dated August 27, 2015, OWCP expanded appellant’s claim to accept bilateral 

tinnitus. 

By letter dated November 5, 2015, appellant requested an additional schedule award 

based on his hearing loss due to tinnitus. 

On December 9, 2015 OWCP replied that appellant needed to exercise his appeal rights 

from the decision of April 14, 2015 in order to claim additional impairment related to his 

tinnitus. 

By letter dated December 23, 2015, appellant requested reconsideration of OWCP’s 

April 14, 2015 decision. In an attached letter, he noted that Dr. Pappas had opined that his 

tinnitus impacted activities of daily living. 

On March 23, 2016 OWCP forwarded the case file and a statement of accepted facts to a 

district medical adviser for calculation of appellant’s percentage of hearing impairment. In a 

report dated March 31, 2016, the DMA noted: 

“In the March 5, 2015 report, Dr. Pappas indicated that [appellant’s] tinnitus 

affects the ability to concentrate and read. He states that tinnitus ‘can interfere 

sometimes with sleep and routine daily activities’ but did not say this was 

happening with [appellant]. Based upon this I assigned an additional two percent 

for [appellant’s] tinnitus bringing the final binaural hearing impairment of 30.4 

percent.... [Appellant] has tinnitus in presence of binaural hearing impairment. 

The tinnitus impacts the following activities of daily living (ADLs): 

Concentration when Reading. Based upon this I recommend an additional 2 

percent impairment for the tinnitus.” 

By decision dated April 6, 2016, OWCP vacated its decision of April 14, 2014. On 

April 7, 2016 it issued a schedule award for an additional 2 percent impairment due to tinnitus, 

for a total of 30 percent binaural impairment. The weekly pay listed in this schedule award was 

$2,855.13, which, multiplied by the 75 percent compensation rate, resulted in $2,141.35. The 

number of weeks of compensation was listed as four weeks, and the total payment was listed as 

$7,622.44. 
4

LEGAL PRECEDENT 

The schedule award provision of FECA3 and its implementing regulations4 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.5

 The A.M.A., Guides have been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.6

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

A.M.A., Guides.

7

 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, 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 point out, losses below 25 decibels result in no impairment in the ability to hear 

everyday speech under everyday conditions. 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, then added to the greater loss and the total is divided by six to arrive at the amount of 

binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for 

evaluating hearing loss.8

Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a 

symptom that may be the result of disease or injury.9 The A.M.A., Guides state that, if tinnitus 

interferes with ADLs, 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.10

ANALYSIS 

The Board finds that this case is not in posture for decision because the DMA’s report 

upon which OWCP relied in granting appellant an additional two percent schedule award for 

tinnitus was not well rationalized. 

 3

 5 U.S.C. § 8107. 

4

 20 C.F.R. § 10.404. 

5 See D.K., Docket No. 10-174 (issued July 2, 2010); Michael S. Mina, 57 ECAB 379, 385 (2006). 

6

 20 C.F.R. § 10.404; see F.D., Docket No. 09-1346 (issued July 19, 2010). 

7 See A.M.A., Guides 250 (6th ed. 2009). 

8 J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009). 

9 See A.M.A., Guides 249 (6th ed. 2009). 

10 Id. See also R.O., Docket No. 13-1036 (issued August 28, 2013); R.H., Docket No. 10-2139 (issued July 13, 

2011); Robert E. Cullison, 55 ECAB 570, 573 (2004). 
5

In a report dated March 31, 2016, the DMA noted: 

“In the March 5, 2015 report, Dr. Pappas indicated that [appellant’s] tinnitus 

affects the ability to concentrate and read. He states that tinnitus ‘can interfere 

sometimes with sleep and routine daily activities’ but did not say this was 

happening with [appellant]. Based upon this I assigned an additional 2 percent for 

[appellant’s] tinnitus bringing the final binaural hearing impairment of 30.4 

percent.... [Appellant] has tinnitus in presence of binaural hearing impairment. 

The tinnitus impacts the following ADLs: Concentration when Reading. Based 

upon this I recommend an additional two percent impairment for the tinnitus.” 

In Dr. Pappas’ report dated March 5, 2015, he noted: 

“Despite the hearing aid use, the patient’s tinnitus continues in either ear. The 

tinnitus is bothersome as it can interfere sometimes with sleep or routine daily 

activities. [Appellant] also reports difficulty concentrating and even reading 

because of the tinnitus symptoms. He has difficulty relaxing in this regard.... In 

my opinion, according to [appellant’s] history, hearing test findings, [appellant’s] 

hearing loss and tinnitus are due to noise exposure encountered with [appellant’s] 

federal civilian employment.” 

The Board notes that the DMA mischaracterized Dr. Pappas’ report. The DMA claimed 

that Dr. Pappas did not say that tinnitus interfered with appellant’s sleep and routine daily 

activities. The DMA claimed that Dr. Pappas instead only addressed tinnitus’ effect on sleep and 

daily routines generally. However, Dr. Pappas’ report is clearly referencing the effect 

appellant’s tinnitus has on activities of appellant’s daily life, specifically, and not the effects of 

tinnitus generally. Moreover, the DMA’s report ignores Dr. Pappas’ stated effects of appellant’s 

tinnitus on his sleep, his general level of concentration, his ability to relax, and his routine daily 

activities in general. Because the DMA’s report is not well-rationalized based on its incorrect 

interpretation of the medical case record, it cannot serve as a basis for appellant’s increased 

schedule award for tinnitus.11

The Board further notes that it is unclear as to whether OWCP miscalculated appellant’s 

total payment in its April 7, 2016 schedule award decision. In its April 7, 2016 schedule award 

decision, OWCP noted that appellant was entitled to four weeks of compensation at a weekly pay 

rate of $2,855.13 at a compensation rate of 75 percent, resulting in weekly compensation of 

$2,141.35. However, OWCP calculated his total award to be only $7,622.44, which would 

equate to weekly compensation of only $1,905.61. There are no deductions or cost-of-living 

adjustments contained in OWCP’s calculations that would explain this difference. As such, it is 

unclear how OWCP calculated appellant’s total schedule award. In deciding matters pertaining 

to a given claimant’s entitlement to compensation benefits, OWCP is required by statute and 

regulation to make findings of fact.12 As this case is not in posture for decision due to 

 11 See generally Daniel E. Shown, Docket No. 05-0610 (issued June 16, 2005). In addressing questions regarding 

hearing loss, the opinion of the DMA must be well rationalized. 

12 See F.M., Docket No. 16-0198 (issued July 6, 2016). 
6

insufficient medical evidence, this issue regarding calculation of the schedule award should be 

resolved upon the issuance of a de novo schedule award decision after appropriate medical 

development. 

The Board will set aside OWCP’s April 7, 2016 schedule award decision and remand to 

OWCP for a second opinion evaluation as to whether appellant is entitled to an additional 

impairment from tinnitus. After this and any other development OWCP deems appropriate, 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 April 7, 2016 decision of the Office of 

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

consistent with the Board’s decision. 

Issued: October 4, 2016 

Washington, DC 

 

 Christopher J. Godfrey, 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