United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.R., Appellant 

and 

U.S. POSTAL SERVICE, BULK MAIL 

CENTER, Philadelphia, PA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1022 

Issued: October 6, 2016 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant1

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 April 18, 2016 appellant, through counsel, filed a timely appeal from a December 16, 

2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). 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 this case. 

ISSUE 

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

and tinnitus of the right ear causally related to factors of his federal employment. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.3 The facts and circumstances as 

presented in the prior appeal are incorporated herein by reference. The relevant facts are as 

follows. 

On August 23, 2013 appellant, then a 58-year-old retired distribution machine operator, 

filed an occupational disease claim (Form CA-2) alleging that he developed bilateral hearing loss 

and tinnitus as a result of exposure to noise until his retirement on January 20, 2013. He stated 

that he had become aware of his condition and of its relationship to his employment on 

January 20, 2013. 

In a report dated February 18, 2013, Dr. Natasha Pollak, a Board-certified 

otolaryngologist, diagnosed mild-to-moderate high frequency sensorineural hearing loss of the 

left ear. She noted that appellant’s right ear was deaf with no word recognition, but that its 

etiology was uncertain. Dr. Pollak noted that appellant’s deaf right ear could represent end-stage 

Ménière’s disease, but that other etiologies were possible. She noted that appellant was 

diagnosed with right ear Ménière’s disease 20 years ago, along with right-sided tinnitus, and has 

had no hearing in his right ear for approximately 20 years. 

OWCP referred appellant, along with a statement of accepted facts, to Dr. Emil Liebman, 

a Board-certified otolaryngologist, for a second opinion evaluation. In a February 19, 2014 

report, Dr. Liebman diagnosed bilateral sensorineural hearing loss, with profound loss on the 

right. He opined that appellant’s left-sided hearing loss was due to noise exposure in appellant’s 

federal civilian employment, but that his right-sided hearing loss was not due to work-related 

noise exposure. Rather, it was due to long-term Ménière’s disease. 

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

The DMA noted, “Based upon noise exposure during federal employment, a [schedule award] is 

indicated for the left ear only. The right ear hearing loss is due to Ménière’s disease and is not 

due to loud noise injury.” 

By decision dated April 30, 2014, OWCP accepted appellant’s claim for left-sided noise 

induced hearing loss. By letter dated June 6, 2014, it explained that his claim had been accepted 

only for left-sided hearing loss because appellant had preexisting Ménière’s disease of the right 

ear. By decision dated August 14, 2014, OWCP issued a schedule award for two percent 

monaural hearing loss of appellant’s left ear. 

On August 18, 2014 counsel appealed to the Board, arguing that OWCP was required to 

issue a final decision with appeal rights as to denial of appellant’s right-sided hearing loss. By 

decision dated November 20, 2015, the Board found that appellant had not established more than 

two percent left monaural hearing loss, noting that it did not have jurisdiction over denial of 

appellant’s right-sided hearing loss, because a final adverse decision had not been issued. 

However, the Board noted that OWCP should issue a final decision as to appellant’s right-sided 

hearing loss, with findings of fact and appropriate appeal rights. 

 3

 Docket No. 14-1856 (issued November 20, 2015). 
3

By letter dated November 24, 2015, counsel again requested that OWCP issue a final 

decision as to the issue of appellant’s right-sided hearing loss, noting that the Board had found 

that it lacked jurisdiction over the issue of right-sided hearing loss without a final adverse 

decision from OWCP. He argued that appellant’s right-sided hearing loss had worsened over 

time due to noise exposure compared to earlier testing. 

By decision dated December 16, 2015, OWCP issued a final adverse decision denying 

appellant’s claim for right ear hearing loss and right ear tinnitus. It explained that the medical 

evidence from appellant’s physicians, from the second opinion examiner, and from the district 

medical adviser indicated that appellant’s right-sided hearing loss was due to Ménière’s disease 

and that appellant had no hearing in his right ear and occasional tinnitus since 1993. OWCP 

determined that appellant had not provided sufficient evidence to establish that his right-sided 

hearing loss was related to factors of his federal employment. 

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.4 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or an occupational disease.5

 

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; (2) a factual 

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

or occurrence of the disease or condition; and (3) medical evidence establishing that 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. 

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

 4 Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

5 Michael E. Smith, 50 ECAB 313, 315 (1999). 

6 See D.Y., Docket No. 16-0767 (issued July 25, 2016). 

7 Id. 
4

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.8

 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s reasoned opinion on whether 

there is a causal relationship between the claimant’s diagnosed condition and the compensable 

employment factors. The opinion of the physician must be based on a complete factual and 

medical background of the claimant, must be one of reasonable medical certainty, and must be 

supported by medical rationale explaining the nature of the relationship between the diagnosed 

condition and the specific employment factors identified by the claimant.9 The weight of 

medical evidence is determined by its reliability, its probative value, its convincing quality, the 

care of analysis manifested and the medical rationale expressed in support of the physician’s 

opinion.10

ANALYSIS 

 The Board finds that appellant has not established that his monaural hearing loss of the 

right ear and tinnitus of the right ear are causally related to factors of his federal employment. 

In a report dated February 18, 2013, Dr. Natasha Pollak, a Board-certified 

otolaryngologist, diagnosed mild-to-moderate high frequency sensorineural hearing loss of the 

left ear. She noted that appellant’s right ear was deaf with no word recognition, but that its 

etiology was uncertain. Dr. Pollak noted that his deaf right ear could represent end-stage 

Ménière’s disease, but that other etiologies were possible. She noted that appellant was 

diagnosed with right ear Ménière’s disease 20 years ago, along with right-sided tinnitus, and has 

had no hearing in his right ear for approximately 20 years. 

In a February 19, 2014 report, Dr. Liebman diagnosed bilateral sensorineural hearing 

loss, with profound loss on the right. He opined that appellant’s left-sided hearing loss was due 

to noise exposure in appellant’s federal civilian employment, but that his right-sided hearing loss 

was not due to work-related noise exposure. Instead, Dr. Liebman noted that it was due to longterm Ménière’s disease. OWCP then forwarded Dr. Liebman’s report to a DMA for review. The 

DMA noted, “Based upon noise exposure during federal employment, a [schedule award] is 

indicated for the left ear only. The right ear hearing loss is due to Ménière’s disease and is not 

due to loud noise injury.” 

There was no medical evidence before OWCP at the time of its December 16, 2015 

decision indicating that appellant’s right-sided hearing loss and right-sided tinnitus were work 

related. The only medical evidence containing definitive opinions regarding appellant’s rightsided hearing loss and right-sided tinnitus clearly notes that appellant’s condition was due to 

Ménière’s disease, and that it was unrelated to factors of his federal employment. 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 of proof to establish such a 

 8 Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005). 

9 Leslie C. Moore, 52 ECAB 132, 134 (2000). 

10Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959). 
5

causal relationship. While counsel points to audiometric testing indicating that appellant’s 

hearing loss worsened, there are no medical reports or medical opinions of record from 

physicians interpreting appellant’s audiometric testing of the right ear as indicating work-related 

hearing loss due to aggravation of his preexisting condition. As previously noted, 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.11

As such, the Board finds that the medical evidence of record does not establish that 

appellant sustained right-sided hearing loss and right-sided tinnitus causally related to his 

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

speculation. Neither the fact that appellant’s condition became apparent during a period of 

employment nor the belief that his condition was caused, precipitated, or aggravated by his 

employment, is sufficient to establish causal relationship.12 Causal relationship must be 

established by rationalized medical opinion evidence.13 As found, the medical evidence is 

insufficient to establish appellant’s claim. Consequently, OWCP properly found that appellant 

did not meet his burden of proof in establishing his claim. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

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

monaural hearing loss of the right ear and tinnitus of the right ear were causally related to factors 

of his federal employment. 

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

12 See Dennis M. Mascarenas, 49 ECAB 215 (1997). 

13 Supra note 9. 
6

ORDER 

IT IS HEREBY ORDERED THAT the December 16, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 6, 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