United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

TENNESSEE VALLEY AUTHORITY, 

SHAWNEE POWER PLANT, 

West Paducah, KY, Employer 

__________________________________________ 

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Docket No. 15-1813 

Issued: April 18, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 1, 2015 appellant filed a timely appeal of a May 28, 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 OWCP abused its discretion when it denied appellant’s request for 

hearing aids relative to his accepted hearing loss condition. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

This case has previously been before the Board on appeal.2 In an October 21, 2004 

decision, the Board affirmed a February 12, 2004 OWCP decision which found that appellant’s 

request for reconsideration was untimely filed and failed to establish clear evidence of error in 

OWCP’s April 4, 2001 decision. The facts and circumstances set forth in the prior appeal are 

incorporated herein by reference. The relevant facts include the following. 

In an April 4, 2001 decision, OWCP accepted appellant’s claim for hearing loss due to 

his employment-related hearing exposure. However, it determined that because his hearing loss 

was not severe enough to be ratable he was not entitled to schedule award compensation for 

hearing loss. Appellant was advised that his case was open for medical benefits and that he 

could contact OWCP if he was interested in obtaining further information regarding hearing aids. 

More specifically, the decision found that in the opinion of Dr. Shawn C. Jones, a second opinion 

Board-certified otolaryngologist, appellant would benefit from hearing aids and therefore the 

claim was open for medical benefits and if he needed a new set of hearing aids they continued to 

be authorized. 

Following the Board’s October 21, 2004 decision, the claim was dormant until 2011. On 

June 14, 2011 appellant telephoned OWCP regarding obtaining his authorized hearing aids. In a 

June 16, 2011 telephone memorandum, OWCP informed appellant that he remained eligible to 

request hearing aids. Appellant renewed his request for hearing aids in an undated letter received 

by OWCP on June 16, 2011. 

On August 4, 2011 OWCP asked its medical adviser to address whether the requested 

hearing aids were medically necessary. In an August 8, 2011 report, the OWCP medical adviser 

noted that, while a trial of hearing aids was previously authorized, there was no indication that 

the hearing aids “were actually deemed necessary, desired or authorized at that time.” He noted 

that, as hearing loss does not worsen upon removal from noise and because appellant retired on 

May 2, 1999, any worsening of his hearing loss and need for hearing aids after May 1999 was 

not work related.3

 

By decision dated August 9, 2011, OWCP denied appellant’s request to obtain hearing 

aids. It found that any worsening of his hearing and his need for hearing aids were not work 

related. Appellant requested reconsideration on several occasions and these requests were 

denied by OWCP in decisions dated March 12, November 1, and September 18, 2013,4 and 

April 15, 2014.5

 He again requested reconsideration on August 25, 2014. By decision dated 

 2

 Docket No. 04-1784 (issued October 21, 2004). 

3

 The medical adviser later reiterated this opinion in a March 8, 2012 report. 

4

 In a September 16, 2013 report, a different OWCP medical adviser noted that appellant retired in May 1999 and 

that his hearing loss was found to be not ratable in 2001. He concluded that, as noise-induced hearing loss did not 

progress upon removal from noise, any later hearing loss was not due to work factors and hearing aids should be 

denied. This medical adviser reiterated his conclusion on February 13, 2014. He reiterated it again on September 9, 

2014, asserting that because appellant’s hearing loss was not ratable, he was not eligible for hearing aids. 

5

 In decisions dated July 2 and August 8, 2014, OWCP refused to reopen appellant’s case on the merits. 
3

November 21, 2014, OWCP denied modification of the prior decisions denying his request for 

hearing aids. It found that the current medical evidence did not establish a worsening of his 

hearing, which now required hearing aids, which was related to the work-related noise exposure. 

On January 15, 2015 appellant requested reconsideration and submitted additional 

evidence. He argued that his claim was previously approved for hearing aids as his need was 

work related. Appellant related that he had suffered tremendously and spent numerous hours and 

time attempting to receive the hearing aids which were authorized by OWCP and that they later 

went back on the recommendation. Furthermore, he argued that the prior OWCP medical 

advisers did not correctly calculate his percentage of hearing loss. Appellant also argued that he 

had more than 30 years of noise exposure and regardless of the fact that not being exposed to 

continuing noise after leaving the employing establishment he still had work-related, noiseinduced hearing loss and was previously authorized to obtain hearing aids for his work-related 

hearing loss. The additional evidence also included e-mail correspondence, copies of previously 

considered evidence, hearing loss information sheets, and a copy of a November 20, 2014 Board 

decision regarding whether appellant had established an employment-related hearing loss. 

On May 21, 2015 OWCP requested that a medical adviser revisit the issue of hearing aids 

and explain his decision in detail. 

In a report dated May 27, 2015, OWCP’s medical adviser6

 noted that on February 28, 

2001 a previous OWCP medical adviser, diagnosed bilateral sensorineural hearing loss 

consequential to noise exposure, but found that the hearing loss was not severe enough to be 

ratable. He further opined that it was “the practice of this [a]gency to not approve the use of 

hearing aids for hearing loss that is not ratable.” 

By decision dated May 28, 2015, OWCP denied modification of its November 21, 2014 

decision. In support of its finding, it noted that its medical adviser indicated that it was “the 

practice” of OWCP to not approve “hearing aids for hearing loss that is not ratable.” 

LEGAL PRECEDENT 

Following medical evaluation of a claim, if a hearing loss is determined to be not ratable 

for schedule award purposes, other benefits such as hearing aids may still be payable if any 

employment-related hearing loss exists. 

Section 8103 of FECA provides that the United States shall furnish to an employee who 

is injured while in the performance of duty the services, appliances, and supplies prescribed or 

recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce 

the degree of the period of disability, or aid in lessening the amount of monthly compensation.7

 

OWCP must exercise discretion in determining whether the particular service, appliance, or 

 6

 This is the same medical adviser who authored the September 16, 2013, February 13 and September 9, 2014 

reports. See supra note 4. 

7

 5 U.S.C. § 8103. Thomas W. Stevens, 50 ECAB 288 (1999). 
4

supply is likely to affect the purposes specified in FECA. The only limitation on OWCP’s 

authority is that of reasonableness.8 

ANALYSIS 

The Board finds that OWCP abused its discretion in denying appellant’s request for 

hearing aids. 

The Board has held that, following medical evaluation of a claim, if the hearing loss is 

determined to be not ratable for schedule award purposes, other benefits such as hearing aids 

may still be provided if any causally-related hearing loss exists.9 In this case, the record supports 

that OWCP accepted appellant’s claim for hearing loss due to his employment-related hearing 

exposure. While appellant’s hearing loss was not severe enough to be considered ratable, 

appellant was advised that his case was open for medical benefits and consideration of hearing 

aids. Based upon the well-reasoned medical opinion of a second opinion examining physician, 

Dr. Jones, in its April 4, 2001 decision OWCP authorized appellant to obtain hearing aids. The 

Board ultimately affirmed the findings of the April 4, 2001 decision. Although appellant 

thereafter waited to obtain hearing aids, he is not precluded from requesting such devices from 

OWCP who previously notified him that they were authorized. 

Following appellant’s renewed request for the authorized hearing aids, OWCP’s medical 

adviser recommended that OWCP not authorize hearing aids because, while a trial of hearing 

aids was previously authorized, there is no indication that the hearing aids “were actually 

deemed necessary, desired or authorized.” However, the medical adviser is incorrect because 

within the aforementioned April 4, 2001 decision OWCP did expressly authorize hearing aids for 

appellant. The Board previously reviewed and affirmed the February 12, 2004 decision which 

found that OWCP had authorized hearing aids in this case. Thus, as to this matter, the 

authorization for hearing aids is res judicata.

10 OWCP’s medical adviser also determined that 

appellant’s authorization for hearing aids be denied because, he noted, it was OWCP’s practice 

to not approve hearing aids for hearing loss that was not ratable. However, as previously cited, if 

a hearing loss is determined to be not ratable for schedule award purposes, other benefits such as 

hearing aids may still be payable if any employment-related hearing loss exists.11 The medical 

adviser’s opinion as to OWCP claims practices is afforded no weight. As OWCP previously 

authorized hearing aids for appellant’s occupational hearing loss, it acted unreasonably in 

denying hearing aids based only upon the statements and assertions of the medical adviser, made 

approximately ten years later, which are incorrect. 

 8 Daniel J. Perea, 42 ECAB 214 (1990); see also D.M., Docket No. 15-0814 (issued July 16, 2015). 

9 See Raymond VanNett, 44 ECAB 480 (1993). 

10 See Clinton E. Anthony, Jr., 49 ECAB 476 (1998). 

11 Supra note 9. 
5

The Board therefore finds that OWCP abused its discretion in denying appellant’s request 

for hearing aids. OWCP shall furnish hearing aids to appellant based upon its prior authorization 

as outlined in its April 4, 2001 office memorandum. 

The Board does not address as an issue whether appellant has proven an increased 

schedule award. While appellant has made a general argument for an increased schedule award, 

the argument was limited to the basis on which he asserted the right to obtain hearing aids. 

Appellant may request an increased 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 OWCP abused its discretion in denying appellant’s request for 

hearing aids. 

ORDER 

IT IS HEREBY ORDERED THAT the May 28, 2015 decision of the Office of 

Workers’ Compensation Programs is reversed. OWCP shall furnish hearing aids to appellant in 

accordance with this decision. 

Issued: April 18, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board