United States Department of Labor 

Employees’ Compensation Appeals Board 

_________________________________________ 

M.F., Appellant 

and 

NATIONAL AERONAUTICS & SPACE 

ADMINISTRATION, NASA LANGLEY 

RESEARCH CENTER, Hampton, VA, Employer 

__________________________________________ 

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Docket No. 16-1296 

Issued: December 15, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 June 3, 2016 appellant, through counsel, filed a timely appeal from an April 12, 2016 

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 has established ratable binaural hearing loss for schedule 

award purposes. 

 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 contends that OWCP’s decision is contrary to fact and law. 

FACTUAL HISTORY 

On May 29, 2014 appellant, then a 61-year-old supervisory fabrication specialist, filed an 

occupational disease claim (Form CA-2) alleging that on November 29, 2012 he first became 

aware of his hearing loss and ringing in both ears. He noted that he had severe hearing loss in 

his right ear and moderate hearing loss in his left ear. Appellant claimed that on December 3, 

2013 he first realized that his conditions were caused or aggravated by his exposure to high noise 

levels from the work he performed and equipment at the employing establishment. 

In an undated narrative statement, appellant described the development of his claimed 

hearing loss. He worked in a noisy environment, mostly in the machine shop, at the employing 

establishment for 41 years. Appellant retired on January 3, 2014. He wore hearing protection at 

work and beginning in 1984, he underwent an annual hearing test. Appellant claimed that his 

hearing test results showed that his hearing loss had gradually worsened over the years. He 

reiterated that his hearing loss was more severe in the right ear rather than the left ear. 

In an undated narrative statement, Carl Voglewede, appellant’s coworker, indicated that 

the employing establishment required employees to undergo a hearing test and it conducted a 

workplace survey of noise levels on an annual basis. 

A December 3, 2013 medical report from an employing establishment physician with an 

unknown signature noted the results of audiograms that appellant underwent from January 18, 

1984 to November 17, 2010. The report noted that he had progressive moderate-to-severe 

hearing loss. 

In a February 4, 2014 report, Devon Spencer, a licensed hearing instrument specialist, 

noted that appellant underwent an otoscopic examination on that date, which revealed clear ear 

canals and only visible tympanic membranes. He performed an audiogram on January 13, 2014 

which revealed bilateral sensorineural hearing loss in the high frequencies only. Mr. Spencer 

related that this structure of loss made soft sounds of speech hard to hear, especially in groups, or 

noise. After additional speech testing to establish the most comfortable level, loudness 

discomfort level, and preferred frequency response, he recommended that appellant be fitted with 

binaural hearing instruments. The audiometric testing completed on January 13, 2014 revealed 

hearing levels of 15, 15, 30, and 40 decibels (dBs) in the right ear and 10, 10, 30, and 50 dBs in 

the left ear at frequency levels of 500, 1,000, 2,000, and 3,000 hertz (Hz), respectively. 

By letter dated June 2, 2014, OWCP advised appellant of the type of evidence needed to 

establish his claim. 

In a June 27, 2014 letter, appellant reiterated the history of his alleged employmentrelated bilateral hearing loss. He noted that he was exposed to workplace noise 8 hours a day, 

5 to 7 days a week for 41 years. 

In a June 26, 2014 memorandum, the employing establishment noted that appellant was 

exposed to noise in the machine shop and related equipment 8 hours a day, 5 days a week and 

during over-time work over the past 41 years. Appellant wore hearing protection provided by a 

facility safety head. The employing establishment noted that he retired on January 3, 2014. 
3

OWCP received audiograms performed by the employing establishment as part of a 

hearing conservation program dated January 18, 1984 through December 3, 2013, which 

revealed that appellant had moderate-to-severe bilateral sensorineural hearing loss. It also 

received employment records, which included noise survey data dated September 9, 1987 

through December 8, 2006. 

On September 12, 2014 appellant filed a claim for a schedule award (Form CA-7). 

By letter dated February 26, 2015, OWCP referred appellant, together with a statement 

of accepted facts and the medical record, to Dr. Jeffrey P. Powell, a Board-certified 

otolaryngologist, for an otologic examination and an audiological evaluation. In a March 17, 

2015 report, Dr. Powell noted that he examined appellant on that date and referenced appellant’s 

exposure to workplace noise. He reviewed the employing establishment’s audiometric data and 

advised that appellant had bilateral high frequency neurosensory noise-induced hearing loss 

secondary to his federal employment and bilateral tinnitus secondary to this noise exposure. 

Dr. Powell reported that his examination of appellant’s ear, nose, and throat was normal. 

The ear canals were clear and free of cerumen. Appellant’s tympanic membranes were intact 

and mobile to pneumotoscopy. The rest of his complete head, neck, ear, nose, and throat 

examination was normal. Dr. Powell noted that the sensorineural hearing loss was in part, or all, 

due to noise exposure in appellant’s federal civil employment. He also noted that appellant 

would reach maximum medical improvement (MMI) when appellant was fitted for appropriate 

hearing aid amplification for both ears. Dr. Powell recommended an annual audiogram and ear, 

nose, and throat checkup, and an evaluation by an otolaryngologist and audiologist if any urgent 

problems arose such as onset of acute vertigo and sudden hearing loss. 

Audiometric testing was performed for Dr. Powell on the date of his examination. 

Testing for the right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed dB 

losses of 20, 15, 20, and 45, respectively. These dBs were totaled at 100 and were divided by 

4 to obtain an average hearing loss at those cycles of 25 dBs. The average of 25 dBs was then 

reduced by the fence of 25 dBs to equal zero, which was multiplied by the established factor of 

1.5 to compute a zero percent hearing loss for the right ear. Testing for the left ear at the 

frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed dBs losses of 20, 15, 20, and 45 

respectively. These dBs were totaled at 100 and were divided by 4 to obtain the average hearing 

loss at those cycles of 25 dBs. The average of 25 dBs was then reduced by 25 dBs to zero, 

which was multiplied by the established factor of 1.5 to compute a zero percent hearing loss for 

the left ear. Dr. Powell reported that appellant had a binaural impairment rating of zero percent. 

He concluded that appellant did not have ratable hearing loss in either ear. 

On April 17, 2015 an OWCP district medical adviser (DMA) reviewed Dr. Powell’s 

report and the March 17, 2015 audiometric test. He agreed that appellant had noise-induced 

bilateral sensorineural hearing loss. The DMA applied the audiometric data to OWCP’s standard 

for evaluating hearing loss under the sixth edition of the American Medical Association, Guides 

to the Evaluation of Permanent Impairment,

3

 (A.M.A., Guides), and following the same analysis 

determined that appellant had zero percent monaural hearing loss in the right ear, zero percent 

monaural hearing loss in the left ear, and zero percent binaural hearing loss. He, therefore, 

 3

 A.M.A., Guides (6th ed. 2009). 
4

concluded that the medical evidence did not support OWCP’s authorization of hearing aids to 

treat his condition. The DMA further concluded that appellant had reached MMI on March 17, 

2015, the date of Dr. Powell’s examination. 

On May 6, 2015 OWCP accepted appellant’s claim for bilateral hearing loss due to noise 

and bilateral subjective tinnitus. 

In a decision dated May 8, 2015, OWCP found that, although appellant’s hearing loss 

was employment related, it was not severe enough to be considered ratable for purposes of a 

schedule award based on the medical opinions of Dr. Powell and its DMA. It also denied 

authorization for hearing aids and additional medical benefits. 

On June 4, 2015 appellant requested an oral hearing before an OWCP hearing 

representative. 

Appellant submitted a January 13, 2016 audiogram performed by D. Hannah, a hearing 

care professional. Testing at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed 

15, 10, 25, and 40 dBs for the right ear and 10, 15, 25, and 45 dBs for the left ear, respectively. 

The audiogram revealed that appellant had 2.5 percent binaural hearing loss. 

An audiogram performed on March 7, 2016 at the frequency levels of 500, 1,000, 2,000, 

and 3,000 Hz revealed the following: right ear 20, 15, 30, and 45 dBs; left ear 15, 15, 30, and 55 

dBs. Appellant submitted a certificate of calibration dated April 22, 2015 regarding this 

audiogram. 

In an April 12, 2016 decision, an OWCP hearing representative affirmed the May 8, 2015 

decision. He found that the medical evidence submitted was insufficient to outweigh the weight 

accorded to Dr. Powell’s opinion that appellant had no measurable hearing loss. 

LEGAL PRECEDENT 

The schedule award provision of FECA4

 and its implementing regulations5 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. The A.M.A., Guides has 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 cycles per second, the 

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404. 

6 Id. See also Jacqueline S. Harris, 54 ECAB 139 (2002). 

7

 A.M.A., Guides 250 (6th ed. 2009). 
5

losses at each frequency are added up and averaged.8

 Then, the fence of 25 dBs is deducted 

because, as the A.M.A., Guides points out, losses below 25 dBs result in no impairment in the 

ability to hear everyday speech under everyday conditions.9 The remaining amount is multiplied 

by a factor of 1.5 to arrive at the percentage of monaural hearing loss.10 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.11 The Board has concurred in OWCP’s adoption of this 

standard for evaluating hearing loss.12

OWCP procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to OWCP’s DMA for an opinion concerning the nature and percentage in 

accordance with the A.M.A., Guides with the DMA providing rationale for the percentage of 

impairment specified.13

ANALYSIS 

The Board finds that appellant has not established ratable hearing loss based on his 

accepted bilateral hearing loss and tinnitus. 

OWCP referred appellant to Dr. Powell, a second opinion physician, regarding his 

hearing loss. Dr. Powell’s March 17, 2015 examination found that appellant’s bilateral high 

frequency sensorineural hearing loss and tinnitus were due to his workplace noise exposure. The 

audiogram performed on that date revealed dB losses of 20, 15, 20, and 45 at 500, 1,000, 2,000, 

and 3,000 Hz, respectively, for the right ear, which were averaged to total 100. The average of 

100 dBs, reduced by 25 dBs (the first 25 dBs were discounted as discussed above), equals 0 dBs, 

which multiplied by the established factor of 1.5 results in a zero percent hearing loss for the 

right ear. Testing of the left ear revealed dB losses of 20, 15, 20, and 45 at 500, 1,000, 2,000, 

and 3,000 Hz, respectively, which were averaged to total 100. The average of 100 dBs, reduced 

by 25 dBs, equaled 0 dBs. Based on this test, Dr. Powell determined that appellant did not 

sustain a ratable binaural hearing loss.14 The Board finds that he properly applied the A.M.A., 

Guides to the March 17, 2015 audiogram to determine that appellant did not sustain a ratable 

hearing loss for schedule award purposes.15

 8 Id. 

9 Id. 

10 Id. 

11 Id. 

12 Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No. 

01-1570 (issued August 13, 2002); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001). 

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, 

Chapter 2.808.6(f) (February 2013). 

14 A.M.A., Guides 249-51. 

15 See S.G., 58 ECAB 383 (2007). 
6

Consistent with its procedures, OWCP properly referred the file to its DMA for a rating 

of permanent impairment in accordance with the sixth edition of the A.M.A., Guides. 

On April 17, 2015 OWCP’s DMA reviewed Dr. Powell’s report and the March 17, 2015 

audiogram. He properly applied the applicable standards of the sixth edition of the A.M.A., 

Guides to determine that appellant did not have ratable, work related, binaural hearing loss. 

Consequently, the Board finds that the weight of the medical evidence establishes that appellant 

has no ratable loss of hearing pursuant to the A.M.A., Guides. While OWCP accepted bilateral 

tinnitus as a condition under appellant’s claim, tinnitus may not be added to an impairment rating 

for hearing loss under the sixth edition of the A.M.A., Guides unless such hearing loss is 

ratable.16

Although appellant submitted results from the employing establishment’s annual 

audiometric testing from January 18, 1984 to December 3, 2013; a January 13, 2014 audiogram 

performed by Mr. Spencer, a licensed hearing instrument specialist; a January 13, 2016 

audiogram performed by D. Hannah, a hearing care professional who found that appellant had 

2.5 percent binaural hearing loss; and a March 7, 2016 audiogram, these audiograms are 

insufficient to establish his burden of proof as they do not comply with the requirements set forth 

by OWCP. They lack proper certification of calibration, speech testing, and bone conduction 

scores and were not prepared or certified as accurate by a physician as defined by FECA.17 The 

Board also notes that neither a licensed hearing instrument specialist nor a hearing care 

professional is included among the health care professionals considered physicians under 

FECA.18 It is appellant’s burden of proof to submit a properly prepared and certified audiogram 

to OWCP.19 OWCP was not required to rely on this evidence in determining the degree of his 

hearing loss as it failed to constitute competent medical evidence.20

On appeal, counsel contends that OWCP’s decision is contrary to fact and law. For the 

reasons stated above, the Board finds that the weight of the medical evidence of record does not 

establish that appellant sustained a ratable binaural hearing loss for schedule award purposes. 

 16 See Juan A. Trevino, 54 ECAB 358, 360 (2003). 

17 The Board notes that while the January 13, 2016 audiogram provided speech test results and the record contains 

an April 22, 2015 certificate of calibration for the March 7, 2016 audiogram, neither audiogram complied with the 

remaining requirements set forth by OWCP. 

18 5 U.S.C. § 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. See also B.B., Docket No. 09-1858 (issued April 16, 2010); J.M., 58 ECAB 303 (2007); Roy L. 

Humphrey, 57 ECAB 238 (2005). 

19 See R.B., Docket No. 10-1512 (issued March 24, 2011); Robert E. Cullison, 55 ECAB 570 (2004); Vincent 

Holmes, 53 ECAB 468 (2002) (OWCP does not have to review audiograms not certified by a physician and it is the 

claimant’s burden to submit a properly certified audiogram for review if he objects to the audiogram selected by 

OWCP for determining the degree of hearing loss). 

20 Id. See also H.M., Docket No. 13-1061 (issued July 29, 2013); M.T., Docket No. 12-1294 (issued 

December 6, 2012). 
7

Appellant may request a schedule award at any time based on evidence of a new 

exposure or medical evidence showing progression of an employment-related condition resulting 

in permanent impairment or increased impairment. 

CONCLUSION 

The Board finds that appellant has failed to meet his burden to proof to establish a ratable 

binaural hearing loss warranting him a schedule award. 

ORDER 

IT IS HEREBY ORDERED THAT the April 12, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 15, 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