United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.A., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL LAW ENFORCEMENT TRAINING 

CAMP, Glynco, GA, Employer 

__________________________________________ 

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Docket No. 16-1218 

Issued: November 10, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 18, 2016 appellant filed a timely appeal from a December 18, 2015 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 hearing loss based on additional 

occupational exposure to noise in the course of his federal employment. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.2 The facts and circumstances as set forth 

in the prior decision are incorporated herein by reference. The facts relevant to this appeal will 

be set forth. 

On February 10, 2012 appellant, then a 67-year-old retired mobile equipment servicer, 

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

related to factors of his federal employment. He retired in 2010. OWCP assigned the claim file 

number xxxxxx941. 

The employing establishment related that appellant was exposed to hazardous noise 

repairing and maintaining vehicles from 1997 to 2010. It submitted audiograms obtained dating 

from February 9, 2001 to October 20, 2010 and accompanying hearing test notifications. 

An April 11, 2000 statement of accepted facts (SOAF) noted that appellant had 

previously filed an occupational disease claim for hearing loss on or about April 1, 1998, 

assigned file number xxxxxx426. 

OWCP, by letter dated October 15, 2012, referred appellant to Dr. R. Michael Loper, a 

Board-certified otolaryngologist, for a second opinion evaluation to determine whether the 

hearing loss was as a result of his employment. The SOAF established that he had worked for 

the employing establishment from 1997 to 2010 and had a history of prior noise exposure in 

federal employment from October 1985 to July 1986 and from January 1995 to January 1996. 

On November 1, 2012 Dr. Loper interpreted an October 2007 audiogram as showing 

mild-to-severe hearing loss in the right ear and moderate-to-severe hearing loss in the left ear. 

He advised the change in appellant’s hearing loss subsequent to 2007 was minimal. Dr. Loper 

found that the hearing loss in his left ear, which resulted in no speech discrimination, was 

probably related to another issue, possibly a retrocochlear lesion. He concluded that appellant’s 

additional hearing loss was no more than would be expected with presbycusis. Dr. Loper 

diagnosed sensorineural hearing loss unrelated to noise exposure in the course of his federal 

employment. He concluded, “[Appellant] had existing hearing loss [in] October 11, 2007. 

Hearing has changed only slightly and can be attributed to presbycusis.”3

 

OWCP, in a decision dated January 15, 2013, denied appellant’s claim for hearing loss. 

It determined that Dr. Loper’s opinion constituted the weight of the evidence and established that 

he had not sustained hearing loss due to noise exposure in the course of his federal employment. 

On February 12, 2013 appellant requested a review of the written record by an OWCP 

hearing representative. Following a preliminary review, on April 4, 2013 an OWCP hearing 

representative vacated the January 15, 2013 decision and noted that OWCP had previously 

 2

 Docket No. 14-1828 (issued February 25, 2015). 

3

 Dr. Loper referred appellant for a magnetic resonance imaging (MRI) scan study to rule out a cochlear lesion. A 

December 11, 2012 MRI scan study of the auditory canals was unremarkable. 
3

accepted bilateral hearing loss (under file number xxxxxx426) and granted him a schedule award 

on February 28, 2002 for 36 percent permanent impairment of the left ear. This was not listed on 

the SOAF. The hearing representative further noted that the physician discussed appellant’s 

hearing loss only from 2007 onward rather than considering audiograms from 2002 through 

2010. She instructed OWCP to amend the SOAF to reflect that he had received a prior schedule 

award for left ear hearing loss, refer the case to an OWCP medical adviser for review, and, if 

necessary, obtain clarification from Dr. Loper regarding whether appellant is entitled to a 

schedule award for hearing loss. 

On April 5, 2013 OWCP prepared an updated SOAF indicating that it had accepted a 

claim for left hearing loss due to noise exposure and bilateral sensorineural hearing loss under 

file number xxxxxx426. 

In a report dated April 5, 2013, an OWCP medical adviser noted that Dr. Loper 

considered only audiograms in 2007 and 2012 in finding that appellant’s hearing loss was 

unrelated to noise exposure. He recommended that OWCP provide the physician with 

audiograms from 2001 to 2012 and instruct him to discuss whether any demonstrated hearing 

loss was employment related. 

On April 16, 2013 OWCP requested that Dr. Loper review audiograms dated 2001 

through 2010 and address whether appellant sustained noise exposure due to his federal 

employment. In an April 18, 2013 response, Dr. Loper compared the results of audiograms 

taken on February 9, 2001 and October 20, 2010. He advised that appellant’s hearing loss was 

“no more than would be expected on the basis of presbycusis.” 

An OWCP medical adviser reviewed Dr. Loper’s report on April 30, 2013 and, based on 

this report opined that appellant was not entitled to an additional schedule award. 

In a decision dated May 7, 2013, OWCP denied appellant’s claim for hearing loss. It 

found that the medical evidence failed to establish additional hearing loss causally related to his 

accepted work exposure. 

Appellant on January 28, 2014 requested reconsideration. He attributed his hearing loss 

to his employment beginning April 1, 1998. Appellant advised that OWCP had already accepted 

his claim for bilateral hearing loss in 2004. He contended that Dr. Loper did not know of his 

previously accepted employment-related hearing loss. 

In a decision dated March 13, 2014, OWCP denied modification of its prior decision. It 

indicated that appellant had previously received a schedule award for 36 percent left hearing loss 

under file number xxxxxx426 and that it had authorized hearing aids. 

Appellant appealed to the Board. In a decision dated February 25, 2015, the Board set 

aside the March 13, 2014 decision.4

 It noted that OWCP had accepted a prior claim for hearing 

loss, assigned file number xxxxxx426, and that an OWCP hearing representative, in an April 4, 

2013 decision, remanded the case for OWCP to provide Dr. Loper with the information about his 

 4 See supra note 2. 
4

prior claim and schedule award. OWCP did not, however, provide the information about the 

prior schedule award to the physician. The Board instructed OWCP, on remand, to double the 

case records for both hearing loss claims and determine whether appellant had sustained 

additional hearing loss due to his federal employment. 

OWCP prepared a new SOAF clarifying that it had accepted left ear hearing loss due to 

noise exposure and bilateral sensorineural hearing loss under file number xxxxxx426 and that it 

had awarded 36 percent permanent impairment in the left ear. It also combined the current case 

record with file number xxxxxx426. The schedule award covered the period January 25 to 

June 5, 2002. 

OWCP requested that Dr. Loper review the updated SOAF and the audiograms from 

2001 to 2010. It asked that the physician address whether appellant had sustained additional 

hearing loss due to noise exposure while working at the employing establishment from 2001 to 

2010. 

Dr. Loper, in a response dated May 14, 2015, noted that appellant had a prior accepted 

hearing loss claim and schedule award. He again reviewed the audiograms from 2001 to 2010 

and related, “It is my opinion that hearing loss seen is not due to noise exposure on the job 

between 2001 and 2010.” 

By decision dated May 29, 2015, OWCP denied appellant’s claim for hearing loss due to 

noise exposure from 2001 to 2010. It found that Dr. Loper’s opinion represented the weight of 

the evidence and established that he had not sustained employment-related hearing loss during 

this period. 

Appellant on June 25, 2015 requested a review of the written record. 

In a decision dated December 18, 2015, an OWCP hearing representative affirmed the 

May 29, 2015 decision. She found that Dr. Loper had relied upon an accurate factual and 

medical history and established that appellant did not have any additional employment-related 

hearing loss. 

On appeal appellant contends that he submitted sufficient evidence to establish that he 

sustained an injury due to his employment on April 1, 1998. 

LEGAL PRECEDENT 

A claimant seeking benefits under FECA5

 has the burden of proof to establish the 

essential elements of his claim by the weight of the reliable, probative, and substantial evidence, 

including that any specific condition or disability for work for which he claims compensation is 

causally related to the employment injury.6 

 5

 5 U.S.C. § 8101 et seq. 

6 See Jacquelyn L. Oliver, 48 ECAB 232 (1996). 
5

In an occupational disease claim, to establish that an injury was sustained in the 

performance of duty, 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 that 

the diagnosed condition is causally related to the employment factors identified by the claimant.9 

A claim for an increased schedule award may be based on new employment exposure; 

however, additional occupational exposure is not a prerequisite. A claim for an increased 

schedule award based on additional exposure constitutes a new claim.10 Absent additional 

employment exposure, an increased schedule award may also be based on evidence 

demonstrating that the progression of an employment-related condition has resulted in a greater 

permanent impairment than previously calculated.11

ANALYSIS 

On July 26, 2000 and February 11, 2004 OWCP accepted appellant’s April 1998 claim 

for bilateral sensorineural hearing loss under file number xxxxxx426. On February 28, 2002 it 

awarded 36 percent permanent loss of hearing on the left side under file number xxxxxx426. 

Appellant subsequently filed an occupational disease claim on February 10, 2012 alleging 

additional hearing loss due to noise exposure while working for the employing establishment. 

As he sustained a period of additional exposure, OWCP properly considered it as a new claim.12

The employing establishment obtained audiograms from February 9, 2001 to 

October 20, 2010. The audiograms, however, were not accompanied by a physician’s report 

addressing how noise-related exposure caused or aggravated his hearing loss.13 

OWCP referred appellant to Dr. Loper for a second opinion examination. In a report 

dated October 15, 2012, Dr. Loper reviewed an October 2007 audiogram showing mild-to-severe 

hearing loss on the right side and moderate-to-severe hearing loss on the left side. He opined 

that appellant’s left hearing loss was likely due to an unrelated issue. Dr. Loper found that any 

additional hearing loss since 2007 was unrelated to noise exposure and was not more than 

 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 See James R. Hentz, 56 ECAB 573 (2005); Paul Fierstein, 51 ECAB 381 (2000). 

11 Linda T. Brown, 51 ECAB 115 (1999). 

12 See James R. Hentz supra note 10; additionally, OWCP’s procedures provide that a claim for an additional 

schedule award based on an additional period of exposure to the same work factors, such as often occurs in hearing 

loss cases, should be adjudicated as a new claim. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule 

Awards and Permanent Disability Claims, Chapter 2.808.9(c) (February 2013). 

13 See G.O., Docket No. 15-0561 (issued May 8, 2015). 
6

expected with presbycusis. In a supplemental report dated April 18, 2013, he reviewed 

audiograms dated February 9, 2001 to October 20, 2010. Dr. Loper compared the results from 

the February 9, 2001 audiogram with the results from the October 20, 2010 audiogram. He again 

found that the results showed hearing loss consistent with age. 

Following remand by the Board, OWCP advised Dr. Loper that it had previously 

accepted bilateral hearing loss and granted a schedule award for 36 percent of the left ear. It 

asked that the physician provide an opinion regarding whether he sustained any additional 

employment-related hearing loss. On May 14, 2015 Dr. Loper found that his hearing loss was 

unrelated to his noise exposure between 2001 and 2010 at work. The Board finds that 

Dr. Loper’s opinion is based on a review of the evidence and supported by medical rationale 

explaining that any increase in hearing loss was not more than would be expected with 

presbycusis. His opinion is thus sufficient to establish that appellant has not shown an increase 

in his bilateral hearing loss due to additional workplace noise exposure.14

On appeal appellant argues that he sustained an injury due to his employment on 

April 1, 1998. His April 1998 hearing loss claim, however, remains accepted for bilateral 

sensorineural hearing loss under file number xxxxxx426, now doubled with the current file 

number.15 

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 and 

20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

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

additional occupational noise exposure in the course of his federal employment. 

 14 See J.B., Docket No. 15-1474 (issued March 4, 2016). 

15 See James R. Hentz, supra note 10. 
7

ORDER 

IT IS HEREBY ORDERED THAT the December 18, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 10, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board