United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.J., Appellant

and

DEPARTMENT OF THE ARMY, CIVILIAN 

BENEFITS CENTER, Fort Riley, KS, Employer

__________________________________________

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Docket No. 17-1850

Issued: February 14, 2018

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 30, 2017 appellant filed a timely appeal from April 21 and August 8, 2017 

merit decisions 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 met his burden of proof to establish bilateral hearing loss 

causally related to factors 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 of the case 

as set forth in the prior appeal are incorporated herein by reference. The relevant facts are as 

follows.

On May 5, 2015 appellant, then a 55-year-old desk equipment foreman, filed an 

occupational disease claim (Form CA-2) alleging that he developed bilateral hearing loss as a 

result of working around different types of noisy equipment and tools at the employing 

establishment since 1978. He stated that he first became aware of his condition and realized that 

it resulted from factors of his federal employment on April 30, 2015. Appellant included a 

detailed list and description of the positions he had held and the noise he was exposed to during 

his federal employment from 1978 to the present. He indicated that he did not have any 

preexisting hearing problems before he started work. Appellant reported that he still worked as 

the desk equipment foreman and wore double hearing protection when he was in the noisy areas. 

He believed that his hearing loss was due to his federal employment because he had never 

worked anywhere except the employing establishment.

Appellant provided audiogram records from the employing establishment dated from 

August 7, 1978 to December 15, 2014. The records indicated that on August 7, 1978 his hearing 

thresholds at 500, 1,000, 2,000, and 3,000 hertz (Hz) were 80, 70, 70, and 75 decibels for the 

right ear and 10, 10, 5, and 10 decibels for the left ear.

An April 30, 2015 audiogram by M. McCaskill, an audiologist, related that appellant’s 

hearing thresholds at 500, 1,000, 2,000, and 3,000 Hz were 110, 120, 115, and 115 decibels for 

the right ear and 25, 25, 20, and 25 decibels for the left ear.

OWCP referred appellant’s claim, along with the medical record and the statement of 

accepted facts (SOAF), to Dr. Bryan M. Clay, a Board-certified otolaryngologist, for a second 

opinion examination to determine whether appellant sustained employment-related hearing loss. 

Dr. Clay completed an outline for otologic evaluation (Form CA-1332) dated September 2, 2015 

and provided audiometric test results. In the CA-1332 form, he noted that appellant had 

significant right ear hearing loss at the beginning of his employment in 1978. Dr. Clay reported 

that appellant worked in a noisy environment, but he opined that there had not been much 

hearing loss in appellant’s right or left ear in the sense that his right ear had severe hearing loss 

in 1978, such that he never had useful hearing on the right. He also noted that appellant’s left ear 

hearing loss was not any worse through the baseline. On examination Dr. Clay observed clear

and intact ear canals and drum mobility. He diagnosed right ear profound sensorineural hearing 

loss and normal left ear hearing. Dr. Clay reported that appellant had longstanding right ear 

hearing loss and checked a box indicating that appellant’s hearing loss was not due to his civilian 

employment.

An audiogram performed on September 2, 2015 related hearing thresholds at 500, 1,000, 

2,000, and 3,000 Hz were not ratable for the right ear, and were 10, 10, 15, and 20 decibels for 

the left ear.

 

2 Docket No. 16-0714 (issued October 3, 2016).
3

By decision dated September 9, 2015, OWCP denied appellant’s claim finding that the 

medical evidence of record failed to establish that his hearing loss was caused or aggravated by

factors of his federal employment.

On September 25, 2015 OWCP received appellant’s request for reconsideration. 

Appellant stated that he had not worked anywhere else in his career except at the employing 

establishment. He explained that he did not have any problems with his ears or hearing problems 

before he started working for the employing establishment in 1978. Appellant reported that his 

workstation was extremely noisy and that he worked in this area for 20 years. He believed that 

his employment affected his hearing.

By decision dated October 9, 2015, OWCP denied appellant’s request for reconsideration 

of the merits of his case. It determined that no new evidence was submitted with his

reconsideration request.

On February 29, 2016 appellant appealed to the Board. 

By decision dated October 3, 2016, the Board found that the case was not in posture for 

decision as Dr. Clay’s report did not adequately address the issue of causal relationship. The 

Board noted that he had not provided a full explanation of why appellant’s occupational noise 

exposure had no apparent effect on his hearing, and that, as appellant had been referred to a 

second opinion physician, OWCP had the responsibility to obtain a report resolving the issue of 

causal relationship. On remand, the Board ordered referral of appellant, along with an updated 

SOAF and medical record, to Dr. Clay (if available and willing) or another second opinion 

physician for an opinion on causal relationship, to be followed by a de novo decision.3

On November 10, 2016 OWCP referred appellant, along with a SOAF, for a second 

opinion examination with Dr. Clay to resolve the issue of whether appellant’s hearing loss was 

causally related to his federal employment and to determine the extent of any hearing loss, if any. 

In a report dated December 1, 2016, Dr. Clay noted that appellant had significant rightsided hearing loss in a 1978 hearing test, with normal hearing in the left ear. He noted that 

appellant’s left-sided hearing loss was only slightly worse in high pitches than the baseline, but 

not in excess of normal presbycusis Appellant’s right-sided hearing loss was profound, which 

was similar to prior testing, and unrelated to presbycusis. Dr. Clay opined that appellant’s rightsided hearing loss was not related in any way to his federal employment, as it was preexisting, 

while appellant’s left ear’s hearing was basically normal. He further noted that appellant’s 

hearing loss did not fit an explanation of noise exposure.

By decision dated December 13, 2016, OWCP denied appellant’s claim for bilateral 

hearing loss. Relying on Dr. Clay’s December 1, 2016 report, it found that appellant had not 

established that his hearing loss was related to factors of his federal employment.

On February 23, 2017 appellant requested reconsideration of OWCP’s December 13, 

2016 decision. 

 

3

Id.
4

By letter dated January 17, 2017, Debbie Fortenberry, a hearing instrument specialist, 

performed a screening test on appellant. She noted that the hearing test performed on that date 

was inconsistent in that the speech reception threshold in the left ear was 70, while the pure-tone 

average in the left ear was 91.

By letter dated February 23, 2017, appellant stated that his physician had rendered an 

opinion confirming that his hearing loss was due to noise exposure. He submitted an unsigned 

audiogram dated January 12, 2017. 

On a form dated February 1, 2017, Dr. James House III, a Board-certified 

otolaryngologist, diagnosed appellant with right-sided deafness. 

By decision dated April 21, 2017, OWCP reviewed the merits of appellant’s claim and 

denied modification. It found that none of the evidence submitted on reconsideration contained 

an opinion from a qualified physician on the issue of causal relationship.

On May 10, 2017 appellant again requested reconsideration and submitted additional 

evidence. 

In a report dated January 30, 2017, Dr. Alfred Windham, a Board-certified 

otolaryngologist, examined appellant and diagnosed bilateral sensorineural hearing loss. He

noted that appellant may have autoimmune inner ear disease and that Dr. House was treating 

appellant for that condition.

Appellant submitted unsigned audiograms dated January 12, 2017 and April 30, 2015. 

He also submitted the results of a rapid plasma regain test dated January 12, 2017.

In an undated statement, a superintendent at the employing establishment confirmed that 

appellant had been employed there since 1978, and that he had been exposed to noisy work areas 

throughout his employment. 

By decision dated August 8, 2017, OWCP reviewed the merits of appellant’s claim and 

denied modification. It found that none of the evidence submitted on reconsideration contained a 

well-rationalized explanation of how duties of his federal employment were connected to his 

hearing loss.

LEGAL PRECEDENT

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty as alleged, and that any 

disability or specific condition for which compensation is claimed is causally related to the 
5

employment injury.4 These are the essential elements of every compensation claim regardless of 

whether the claim is predicated on a traumatic injury or occupational disease.5

To establish that, an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

presence or existence of the disease or condition for which compensation is claimed; (2) a factual 

statement identifying employment factors alleged to have caused or contributed to the presence

or occurrence of the disease or condition; and (3) medical evidence establishing that the 

employment factors identified by the claimant were the proximate cause of the condition for 

which compensation is claimed or, stated differently, medical evidence establishing that the 

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

Appellant has the burden of proof to establish by the weight of the reliable, probative, 

and substantial evidence that his hearing loss was causally related to noise exposure in his 

federal employment.6 Neither the condition becoming apparent during a period of employment, 

nor the belief of the employee that the hearing loss was causally related to noise exposure in 

federal employment, is sufficient to establish causal relationship.7

Causal relationship is a medical issue and the evidence generally required to establish 

causal relationship is rationalized medical opinion evidence.8 Rationalized medical opinion 

evidence is medical evidence which includes a physician’s reasoned opinion on whether there is 

a causal relationship between the claimant’s diagnosed condition and the compensable 

employment factors. The opinion of the physician must be based on a complete factual and 

medical background of the claimant, must be one of reasonable medical certainty, and must be 

supported by medical rationale explaining the nature of the relationship between the diagnosed 

condition and the specific employment factors identified by the claimant.9 The weight of 

medical evidence is determined by its reliability, its probative value, its convincing quality, the 

care of analysis manifested and the medical rationale expressed in support of the physician’s 

opinion.10

ANALYSIS

Appellant alleges that he sustained bilateral hearing loss as a result of his exposure to 

noisy equipment and tools during his federal employment. OWCP accepted that he was exposed 

 

4 Gary J. Watling, 52 ECAB 278-79 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5 Michael E. Smith, 50 ECAB 313, 315 (1999).

6 T.C., Docket 17-0872 (issued October 5, 2017).

7 Lourdes Harris, 45 ECAB 545, 547 (1994); John W. Butler, 39 ECAB 852 (1988); D.S., Docket No. 16-0903 

(issued September 8, 2016).

8 Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005).

9 Leslie C. Moore, 52 ECAB 132, 134 (2000).

10 Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).
6

to hazardous noise at the employing establishment, but denied his claim finding that the medical 

evidence failed to establish that his bilateral hearing loss was caused or aggravated by his 

employment. The Board finds that appellant has not submitted sufficient evidence to establish 

that his hearing loss was caused or aggravated by factors his federal employment.

Pursuant to the Board’s October 3, 2016 remand of the case for further development of 

the medical evidence, OWCP referred appellant for a second opinion examination to obtain a 

rationalized opinion on causal relationship. On December 1, 2016 Dr. Clay noted that appellant 

had significant right-sided hearing loss in a 1978 hearing test, with normal hearing in the left ear. 

He noted that appellant’s left-sided hearing loss was only slightly worse in high pitches than the 

baseline, but not in excess of normal presbycusis Appellant’s right-sided hearing loss was 

profound, which was similar to prior testing. Dr. Clay noted that he did not believe appellant’s 

right-sided hearing loss was related in any way to his federal employment, as he had significant

preexisting loss. He further explained that appellant’s right-sided hearing loss did not fit an 

explanation of noise exposure. OWCP issued a de novo decision dated December 13, 2016, 

denying appellant’s claim for employment-related hearing loss. Relying on Dr. Clay’s 

December 1, 2016 report, it found that appellant had not established that his hearing loss was 

related to factors of his federal employment. The Board finds that Dr. Clay’s opinion was based 

on a review of the evidence and supported by medical rationale explaining that appellant’s 

hearing loss was not a result of noise exposure during his federal employment. Dr. Clay 

referenced current and previous audiometric test results and explained why appellant’s hearing 

loss was not employment related.

11

 His report therefore provided rationalized medical opinion 

and was of probative medical value. 

On a form dated February 1, 2017, Dr. House diagnosed appellant with right-sided 

deafness. However, he offered no opinion regarding the cause of appellant’s hearing loss. The 

Board has held that medical evidence that does not offer any opinion regarding the cause of an 

employee’s condition is of limited probative value on the issue of causal relationship.12 As such, 

this report is insufficient to meet appellant’s burden of proof.

In a report dated January 30, 2017, Dr. Windham noted that he had examined appellant 

and diagnosed bilateral sensorineural hearing loss. He noted that appellant may have 

autoimmune inner ear disease and that Dr. House was treating appellant for that condition. 

Dr. Windham offered no opinion as to whether appellant’s bilateral sensorineural hearing loss or 

his possible autoimmune inner ear disease were causally related to factors of appellant’s federal 

employment. As previously noted, to be of probative value in establishing causal relationship 

the opinion of the physician must be based on a complete factual and medical background of the 

claimant, must be one of reasonable medical certainty, and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and the 

specific employment factors identified by the claimant. Lacking these elements, Dr. Windham’s 

report is of limited probative value.13

 

11 See T.T., Docket No. 17-0471 (issued August 8, 2017).

12 See C.B., Docket No. 09-2027 (issued May 12, 2010); see also S.E., Docket No. 08-2214 (issued May 6, 2009).

13 Supra note 8. 
7

On reconsideration, appellant also submitted diagnostic tests consisting of audiograms 

and hearing tests from Ms. Fortenberry and unnamed individuals. The Board has held that 

reports of diagnostic tests are of limited probative value as they fail to provide an opinion on the 

causal relationship between his employment duties and the diagnosed conditions. For this 

reason, this evidence is not sufficient to meet appellant’s burden of proof.14

It is appellant’s burden of proof to establish causal relationship between his hearing loss 

and factors of his federal employment.15 As he has not submitted any rationalized medical 

evidence to support his allegation that his claimed conditions were caused by duties of his 

federal employment, he has not met his burden of proof to establish his claim.16

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(a) 

and 20 C.F.R. §§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish bilateral 

hearing loss causally related to factors of his federal employment.

 

14 S.G., Docket No. 17-1054 (issued September 14, 2017). 

15 Supra note 5.

16 Supra note 4. 
8

ORDER

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’

Compensation Programs dated August 8 and April 21, 2017 are affirmed.

Issued: February 14, 2018

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