United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.O., Appellant 

and 

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA, Employer 

__________________________________________ 

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Docket No. 15-0194 

Issued: September 19, 2016 

Appearances: Case Submitted on the Record

David G. Jennings, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 5, 2014 appellant, through counsel, filed a timely appeal of an October 9, 

2014 Office of Workers’ Compensation Programs’ (OWCP) merit decision. Pursuant to the 

Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction to consider the merits of the case. 

ISSUE 

The issue is whether appellant has more than six percent binaural hearing loss for which 

he received a schedule award. 

 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

On appeal counsel argued that he should have received a schedule award for his bilateral 

tinnitus. 

FACTUAL HISTORY 

On May 29, 2014 appellant, then a 58-year-old crane and rigging operator, filed an 

occupational disease claim alleging that he developed bilateral hearing loss. He attributed his 

hearing loss to noise at work. Appellant stated that he first became aware of his condition and 

attributed it to his federal employment on October 3, 2002. In a letter dated June 3, 2014, 

OWCP requested that appellant provide additional factual and medical evidence in support of his 

claim. 

Appellant submitted employing establishment audiograms. He indicated that he worked 

at the employing establishment from 1977 as a rigger, nuclear inspector and quality assurance 

specialist. Appellant stated that he was exposed to noise from pneumatic tools, chipping, 

grinding, sandblasting, machinery, cranes and sirens. He utilized earplugs at work. Appellant 

stated that he was last exposed to noise on January 3, 2014. 

OWCP referred appellant and a statement of accepted facts for a second opinion 

evaluation with Dr. Jeffrey Powell, a Board-certified otolaryngologist. Dr. Powell completed a 

report on July 22, 2014 and indicated that appellant demonstrated a progressive high frequency 

bilateral sensorineural hearing loss. He opined that the workplace exposure was sufficient to 

cause the hearing loss. Dr. Powell indicated that appellant had tinnitus secondary to his hearing 

loss. Appellant’s audiogram demonstrated in the right ear at the frequencies of 500, 1,000, 2,000 

and 3,000 cycles per second (cps) 15, 35, 25, and 40 decibel losses, respectively and on the left 

20, 25, 30 and 50 decibel losses, respectively. Dr. Powell applied a formula, totaling the losses, 

subtracting 25 and multiplying by 1.5 to reach monaural losses of 9.375 on the left and 5.625 on 

the right. He also found one percent impairment for tinnitus bilaterally. To reach appellant’s 

binaural loss, he multiplied the percentage of the better ear, including the 1 percent for tinnitus in 

both ears, by 5 and added the other ear and then divided by 6 to reach 7.25 binaural loss of 

hearing. 

An OWCP medical adviser reviewed Dr. Powell’s report on July 31, 2014 and agreed 

with his findings regarding impairments without tinnitus. He applied the formulas and 

concluded that appellant had 6.25 or 6 percent loss of hearing. 

By decision dated August 5, 2014, OWCP accepted appellant’s claim for bilateral 

sensorineural hearing loss and bilateral tinnitus. Appellant filed a claim for a schedule award on 

August 28, 2014 and by decision dated October 9, 2014 OWCP granted him a schedule award 

for six percent bilateral hearing loss. 

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 

 3 Id. 

4

 20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides) (6th ed. 2009). 
3

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

appropriate standard for evaluating schedule losses.5

 

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

A.M.A., Guides.

6

 Using the frequencies of 500, 1,000, 2,000, and 3,000 cps, the losses at each 

frequency are added up and averaged.7

 Then, the fence of 25 decibels is deducted. The 

remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing 

loss.8

 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 the binaural hearing loss.9

 The Board has concurred in 

OWCP’s adoption of this standard for evaluating hearing loss. 

ANALYSIS 

 OWCP accepted that appellant sustained binaural hearing loss due to noise. It developed 

the claim by referring him to Dr. Powell. On July 22, 2014 Dr. Powell examined appellant and 

an audiogram was obtained. She found, using OWCP’s standard procedures, that appellant’s 

noise exposure in his federal employment was sufficient to cause binaural hearing loss. The 

July 22, 2014 tested decibel losses at the frequencies of 500, 1,000, 2,000 and 3,000 cps were 

added and averaged and the “fence of 25 decibels was deducted.10 The remaining amount was 

multiplied by 1.5 to arrive at the percentage of monaural hearing loss. For a binaural hearing 

loss, the loss in each ear is calculated using the above formula. The lesser loss is then multiplied 

by five and added to the greater loss. This amount is then divided by six to arrive at the total 

binaural hearing loss. For levels recorded in the left ear of 20, 25, 30, and 50, the above formula 

derives 9.375 percent monaural loss and for levels recorded in the right ear of 15, 35, 25, and 40, 

the above formula derives 5.625 percent monaural loss. According to the accepted formula these 

combine to reach a 6.25 percent binaural loss of hearing. 

 An OWCP medical adviser concurred in the finding of 6.25 percent binaural hearing loss 

based on the audiogram results, which OWCP rounded to grant appellant a schedule award for 

six percent binaural hearing loss. OWCP’s procedures provide that in computing hearing loss, 

 5 Id.

6

 Federal (FECA) Procedure Manual, Part 3 -- Schedule Awards, Special Determinations, Chapter 3.700.4.b 

(January 2010). 

7 Id.

8 Id.

9 Id.

10 The A.M.A., Guides points out that the loss below an average of 25 decibels is deducted as it does not result in 

impairment in the ability to hear everyday sounds under everyday listening conditions. 
4

percentages should not be rounded until the final percent for award purposes is obtained and 

fractions should be rounded down from .49 or up from .50.11 

 The medical adviser, however, did not credit Dr. Powell’s finding of an additional one 

percent bilateral hearing loss due to tinnitus. On appeal, appellant’s counsel argues that the 

medical adviser erred by failing to include Dr. Powell’s rating of impairment for tinnitus. The 

Board notes that the A.M.A., Guides at section 11.2b, page 24912 states that, if the tinnitus 

interferes with daily living activities such as sleep, reading, enjoyment of quiet recreation, and 

emotional well-being, up to five percent may be added to a measurable binaural hearing 

impairment. 

The Board finds this case not in posture for a decision as clarification is required from 

Dr. Powell as to why he added one percent impairment for tinnitus. Regarding tinnitus, the 

A.M.A., Guides states, tinnitus in the presence of unilateral or bilateral hearing impairment may 

impair speech discrimination. Therefore, up to five percent may be added for tinnitus in the 

presence of measurable hearing loss if the tinnitus impacts the ability to perform activities of 

daily living (ADLs).13 Although Dr. Powell included one percent impairment for tinnitus in 

appellant’s monaural impairment determinations, he did not address how this impacted him in 

his ADLs.14 

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter. While the claimant has the burden to establish entitlement to 

compensation, OWCP shares the responsibility in the development of the evidence to see that 

justice is done. As OWCP undertook development of the evidence by referring appellant to 

Dr. Powell, it has the duty to secure an appropriate report addressing the relevant issues.15 

Because Dr. Powell did not explain why he included a rating for tinnitus in his determination of 

appellant’s hearing loss, the case will be remanded to OWCP to request Dr. Powell to provide a 

supplemental report explaining his rationale for giving a one percent impairment rating for 

tinnitus. Following this and any necessary further development, OWCP shall issue a de novo

decision relative to the extent and degree of appellant’s hearing impairment. 

CONCLUSION 

The Board finds that this case is not in posture for a decision as to whether appellant has 

more than six percent binaural hearing loss, for which he received a schedule award. 

 11 See supra note 4; see e.g., V.B., Docket No. 14-8 (issued March 6, 2014). 

12 A.M.A., Guides 249. 

13 David W. Ferrall, 56 ECAB 362 (2005). 

14 R.G., Docket No. 11-19 (issued August 3, 2011); J.P., Docket No. 09-1520 (issued March 1, 2010). 

15 Peter C. Belkind, 56 ECAB 580 (2005). 
5

ORDER 

IT IS HEREBY ORDERED THAT the October 9, 2014 decision of the Office of 

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

consistent with this decision of the Board.16

Issued: September 19, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 16 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.