United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.F., Appellant 

and 

DEPARTMENT OF THE NAVY, FLEET 

FORCES COMMAND, SHIPYARDS FLEET 

HRO NORFOLK NAVAL SHIPYARD, 

Portsmouth, VA, Employer 

__________________________________________ 

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Docket No. 16-1565 

Issued: March 15, 2017 

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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 26, 2016 appellant, through counsel, filed a timely appeal from a June 2, 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. 

 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

ISSUE 

The issue is whether appellant sustained more than 3.75 percent binaural hearing loss for 

which he received a schedule award. 

FACTUAL HISTORY 

On October 27, 2015 appellant, then a 57-year-old insulator leader, filed an occupational 

disease claim (Form CA-2) alleging that he developed binaural hearing loss as a result of high 

levels of employment-related noise exposure. He was employed as an insulator leader from 

1981 to 2014 where he was exposed to noise six to eight hours per day from various pneumatic 

tools, chipping, grinding, needle guns, deck crawlers, steam driven machinery, relief valves, 

pumps, fans, and blowers. 

OWCP referred appellant, together with a statement of accepted facts, to Dr. Jeffrey 

Powell, a Board-certified otolaryngologist, for a second opinion evaluation on February 9, 2016. 

An audiogram was completed that same date which revealed the following decibel (dB) losses at 

500, 1,000, 2,000, and 3,000 hertz (Hz): 20, 20, 25, and 45 for the right ear and 30, 15, 20, and 

45 for the left ear. Dr. Powell reported that appellant had problems localizing sound and 

understanding words in a group conversation, especially with background noise. He first noticed 

his hearing loss 10 years ago which had significantly worsened over the years. Appellant further 

complained of tinnitus in both ears that was high pitched and constant which disturbed him both 

while he was awake and also when trying to sleep. 

Dr. Powell diagnosed binaural noise-induced high frequency neurosensory hearing loss 

and binaural tinnitus as a result of his occupational noise exposure in his federal employment. 

He noted that appellant’s audiogram at the beginning of his employment in 1985 revealed normal 

thresholds and his most recent audiograms showed a significant threshold shift, revealing a 

severe high frequency noise-induced neurosensory hearing loss. Dr. Powell further stated that 

appellant’s workplace noise exposure was sufficient as to intensity and duration to have caused 

the loss in question and the hearing loss was well in excess of what would normally be 

predicated on the basis of presbycusis. He indicated that appellant had reached maximum 

medical improvement (MMI) and recommended hearing aids. 

Applying the standard provided by the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment3

 (A.M.A., Guides) to the 

February 9, 2016 audiometric data, Dr. Powell calculated that appellant sustained 10.63 percent 

monaural hearing impairment in the right ear (5.63 percent4

 + 5 percent for tinnitus) and 8.75 

percent monaural hearing impairment in the left ear (3.75 percent + 5 percent for tinnitus). He 

calculated a binaural hearing impairment of 9.06 percent. 

 3

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

4

 The Board notes that Dr. Powell noted 25 dB at 500 Hz when calculating the right ear monaural hearing loss. 

The February 9, 2016 audiogram reveals that the dB level at 500 Hz was actually 20 dB. 
3

By decision dated February 25, 2016, OWCP accepted appellant’s claim for binaural 

hearing loss and binaural tinnitus. It further noted that the record established that he would 

benefit from hearing aids. 

On August 5, 2016 OWCP referred the case file to Dr. Jeffrey M. Israel, an OWCP 

district medical adviser (DMA) and Board-certified otolaryngologist, to determine the extent of 

appellant’s hearing loss and permanent impairment due to his employment-related noise 

exposure. 

On April 8, 2016 Dr. Israel reviewed Dr. Powell’s February 9, 2016 otologic examination 

report and agreed that appellant’s binaural high frequency sensorineural hearing loss was due to 

occupational noise exposure. He applied the audiometric data to OWCP’s standard for 

evaluating hearing loss under the sixth edition of the A.M.A., Guides and determined that 

appellant sustained 3.75 percent monaural hearing impairment in the right ear, 3.75 percent 

monaural hearing impairment in the left ear, and a binaural hearing impairment of 3.75 percent.5

 

Dr. Israel averaged appellant’s right ear hearing levels of 20, 20, 25, and 45 dB at 500, 

1,000, 2,000, and 3,000 Hz, which totaled 27.5. After subtracting out a 25 dB fence, he 

multiplied the remaining 2.5 balance by 1.5 to calculate a 3.75 percent right ear monaural 

hearing loss.6

 Dr. Israel then averaged appellant’s left ear hearing levels of 30, 15, 20, and 45 dB 

at 500, 1,000, 2,000, and 3,000 Hz, which totaled 27.5. After subtracting out a 25 dB fence, he 

multiplied the remaining 2.5 balance by 1.5 to calculate a 3.75 percent left ear monaural hearing 

loss. Dr. Israel then calculated 3.75 percent binaural hearing loss by multiplying the right ear 

loss of 3.75 percent by 5, adding the 3.75 percent left ear loss, and dividing this sum by 6. He 

added no percentage for tinnitus. Dr. Israel acknowledged that appellant had tinnitus and that 

Dr. Powell added five percent tinnitus loss to each ear. He deferred to Dr. Powell’s tinnitus 

rating stating that there was no Tinnitus Handicap Inventory available for him to review. 

Dr. Israel concluded that hearing aids were authorized and noted the date of MMI as 

February 9, 2016. 

On April 27, 2016 appellant filed a claim for a schedule award (Form CA-7). 

By decision dated June 2, 2016, OWCP granted appellant a schedule award for 3.75 

percent binaural hearing loss. The date of MMI was determined to be February 9, 2016. The 

award covered a period of eight weeks from February 9, 2016 to April 4, 2016. 

LEGAL PRECEDENT 

The schedule award provision of FECA7

 and its implementing regulations 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. FECA, however, does not 

 5 Supra note 3 at 249. 

6

 Dr. Israel noted that his values were different from Dr. Powell’s as the physician misread the right ear dB level 

at 500 Hz. 

7 Supra note 2. 
4

specify the manner in which the percentage loss of a member shall be determined. The method 

used in making such determination is a matter which rests in the sound discretion of OWCP. For 

consistent results and to ensure equal justice, the Board has authorized the use of a single set of 

tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides

(6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and the Board has 

concurred in such adoption.8

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

A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, 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 points out, losses below 25 decibels 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. 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. The Board has concurred in OWCP’s adoption 

of this standard for evaluating hearing loss.10

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.11 The A.M.A., Guides state that if tinnitus 

interferes with [Activities of Daily Living (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.12

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

should be routed to OWCP’s medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser 

providing rationale for the percentage of impairment specified.13 OWCP may follow the advice 

of its medical adviser or consultant where he or she has properly utilized the A.M.A., Guides.

14

 8 See R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000). 

9 See A.M.A., Guides 250. 

10 See E.S., 59 ECAB 249 (2007); Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying 

prior decision), Docket No. 01-1570 (issued August 13, 2002). 

11 See A.M.A., Guides 249. 

12 Id. See also Robert E. Cullison, 55 ECAB 570 (2004); R.H., Docket No. 10-2139 (issued July 13, 2011). 

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

Chapter 2.808.6(f) (February 2013); Hildred I. Lloyd, 42 ECAB 944 (1991). 

14 See Ronald J. Pavlik, 33 ECAB 1596 (1982). 
5

ANALYSIS 

OWCP accepted appellant’s claim for binaural noise-induced hearing loss and binaural 

tinnitus. The issue is whether appellant has more than a 3.75 percent binaural hearing loss for 

which he received a schedule award. The Board finds that the evidence of record establishes that 

appellant has a 8.75 percent binaural hearing loss.15

OWCP referred appellant, together with a statement of accepted facts, to Dr. Powell, a 

Board-certified otolaryngologist, for a second opinion evaluation. An audiogram was completed 

on February 9, 2016 which revealed the following dB losses at 500, 1,000, 2,000, and 3,000 Hz: 

20, 20, 25, and 45 for the right ear and 30, 15, 20, and 45 for the left ear. Dr. Powell diagnosed 

binaural noise-induced high frequency neurosensory hearing loss and binaural tinnitus as a result 

of his federal occupational noise exposure. 

The Board finds that Dr. Powell, the second opinion physician, properly evaluated 

appellant’s left ear hearing loss. Using the February 9, 2016 audiogram, Dr. Powell averaged 

appellant’s left ear hearing levels of 30, 15, 20, and 45 dB at 500, 1,000, 2,000, and 3,000 Hz, 

which totaled 27.5. He then subtracted a 25-dB fence and multiplied the balance of 2.5 by 1.5 to 

find 3.75 percent left ear monaural hearing loss. 

With respect to appellant’s right ear hearing loss, Dr. Powell mistakenly calculated 

appellant’s right ear monaural loss using 25 dB at 500 Hz rather than the 20 dB noted in the 

audiometric test results. Nonetheless, he properly evaluated appellant’s right ear hearing levels 

of 20, 20, 25, and 45 dB at 500, 1,000, 2,000, and 3,000 Hz to average 27.5. Subtracting a 25 dB 

fence and multiplying the balance of 2.5 by 1.5 results in 3.75 percent left ear monaural hearing 

loss. 

Applying the February 9, 2016 audiometric data and using the sixth edition of the 

A.M.A., Guides, Dr. Powell calculated that appellant sustained 3.75 percent monaural hearing 

impairment in the right ear and 3.75 percent monaural hearing impairment in the left ear.16 He 

calculated a binaural hearing impairment rating of 3.75 percent. 

Dr. Powell further diagnosed tinnitus. He described appellant’s symptoms as trouble 

localizing sound and understanding words in a conversation, especially with background noise. 

Dr. Powell further noted that appellant was experiencing constant high pitch ringing which 

disturbed him both while he was awake and also when trying to sleep. 

OWCP then referred the medical evidence to Dr. Israel serving as OWCP’s DMA for a 

rating of permanent impairment in accordance with the A.M.A., Guides. The DMA agreed that 

appellant had a 3.75 percent binaural hearing loss under the sixth edition of the A.M.A., Guides

based on the results of the February 9, 2016 audiogram and Dr. Powell’s second opinion report. 

Though Dr. Israel did not include five percent impairment for tinnitus, he noted that he was 

deferring to Dr. Powell with regards to his tinnitus rating. 

 15 C.W., Docket No. 13-1168 (issued October 23, 2013). 

16 Supra note 11. 
6

The Board finds that Dr. Powell properly added another 5 percent for tinnitus as it 

impacted appellant’s ability to perform activities of daily living, for a total left ear monaural 

hearing loss of 8.75 percent. Accordingly, the Board will grant an additional five percent award 

for tinnitus.17

Thus, the Board finds that appellant sustained 9 percent binaural hearing loss (rounded up 

from 8.75).18 The Board further finds that OWCP properly determined that the date of MMI was 

February 9, 2016, the date of Dr. Powell’s examination.19 

CONCLUSION 

The Board finds that appellant has established that he has nine percent permanent 

binaural hearing loss. 

 17 R.A., Docket No. 15-138 (issued March 13, 2015). 

18 The policy of OWCP is to round the calculated percentage of impairment to the nearest whole point. Results 

should be rounded down for figures less than .5 and up for .5 and over. See FECA Procedure Manual, Part 3 - 

Medical, Schedule Awards, Chapter 3.700.3(b) (January 2010); Carolyn E. Sellers, 50 ECAB 393, 394 (1999). 

19 In assessing eligibility for a schedule award, the medical evidence must show that the impairment has reached a 

permanent and fixed state, which is generally referred to as MMI. See Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5b(1) (February 2013). Assuming MMI 

has been attained, the date of MMI is usually considered to be the date of the evaluation by the attending physician 

that is accepted as definitive by OWCP. Schedule awards begin on the date of MMI, unless circumstances show that 

a later date should be used. A retroactive determination of the date of MMI is not per se erroneous. When the 

medical evidence establishes that the employee did in fact reach maximum improvement by such date, the 

determination is proper. Id. at Chapter 2.808.7b. 
7

ORDER 

IT IS HEREBY ORDERED THAT the June 2, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed, as modified. 

Issued: March 15, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board