United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.Q., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

El Paso, TX, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1794 

Issued: January 11, 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 September 1, 2015 appellant filed a timely appeal from a March 30, 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 met his burden of proof to establish a ratable hearing loss 

warranting a schedule award. 

On appeal, appellant contends that previous records indicate increased hearing loss since 

the original filing date. He further contends that his hearing has become progressively worse and 

requests review of his claim. 

                                                             1

 20 C.F.R. § 8101 et seq. 
2

FACTUAL HISTORY 

On August 25, 2014 appellant, a 40-year-old supervisory border patrol agent, filed an 

occupational disease claim (Form CA-2) alleging that he developed significant hearing loss due 

to varying degrees of noise exposure during the course of his federal employment. He did not 

stop work. 

Medical and audiological records accompanied the claim. An August 11, 2014 

audiogram exhibited decibel (dBA) losses at 500, 1,000, 2,000, and 3,000 Hertz (Hz): 15, 20, 

25, and 35 for the right ear and 25, 25, 30, and 35 for the left ear. At the same frequency levels, 

a June 27, 2013 audiogram showed dBA losses of 5, 5, 0, and 0 for the right ear and 20, 15, 10, 

and 5 for the left ear. In a June 27, 2013 Federal Occupational Health form report, Dr. Fred 

Rosenberg, an osteopath specializing in preventive and occupational medicine, advised that 

appellant’s audiogram showed abnormal hearing. He recommended an evaluation by a 

specialist. 

In a September 15, 2014 letter, OWCP notified appellant of the deficiencies of his claim 

and afforded him 30 days to submit additional evidence and respond to its inquiries. 

Appellant provided an employment history and noted his history of noise exposure in the 

military and with the employing establishment. On September 22, 2014 the employing 

establishment provided comments regarding the claim. 

On February 13, 2015 OWCP referred appellant to Dr. Ronald J. Blumenfeld, a Boardcertified otolaryngologist, for a second opinion evaluation. In his March 10, 2015 report, 

Dr. Blumenfeld reviewed a statement of accepted facts and the medical evidence of record, and 

reported the findings of his evaluation. He reviewed the results of an audiogram obtained on 

March 10, 2015 and diagnosed bilateral sensorineural hearing loss and tinnitus. Dr. Blumenfeld 

opined that this hearing loss was due, all or in part, to noise exposure in appellant’s civilian 

federal employment. Audiometric testing at the frequency levels of 500, 1,000, 2,000, and 3,000 

Hz revealed dBA losses in the right ear of 25, 20, 20, and 20 dBAs, respectively; and dBA losses 

in the left ear of 20, 15, 15, and 20 dBAs, respectively. Dr. Blumenfeld advised that the 

audiogram revealed no ratable hearing loss and opined that appellant had five percent permanent 

impairment on the basis that his tinnitus condition impaired his sleep. He did not recommend 

hearing aids at that time, but noted that appellant would need them in the future. 

On March 13, 2015 an OWCP medical adviser, Dr. Ronald H. Blum, a Board-certified 

internist of professional rank, reviewed the medical evidence and audiometric testing. He opined 

that appellant’s workplace noise exposure was a contributing factor to his hearing loss. Using 

Dr. Blumenfeld’s findings, Dr. Blum calculated that under the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment2

 (A.M.A., Guides), 

appellant had zero percent monaural hearing loss in the left ear, zero percent monaural hearing 

loss in the right ear, and zero percent binaural hearing loss.3

 He identified the date of maximum 

                                                             2

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

3 Id. at 252, Table 11-2. 
3

medical improvement as March 10, 2015, the date of Dr. Blumenfeld’s second opinion 

examination. Regarding Dr. Blumenfeld’s five percent permanent impairment rating for tinnitus, 

Dr. Blum explained that as appellant did not have any ratable or measurable binaural hearing 

impairment, no further impairment based on tinnitus was available under the A.M.A., Guides. 

The medical adviser noted that hearing aids were not authorized. 

By decision dated March 16, 2015, OWCP accepted appellant’s claim for bilateral 

hearing loss due to noise exposure. 

On March 24, 2015 appellant filed a claim for a schedule award (Form CA-7). 

By decision dated March 30, 2015, OWCP found that appellant’s hearing loss was 

unratable for schedule award purposes. It also informed him that he was not entitled to hearing 

aids. 

LEGAL PRECEDENT 

The schedule award provision of FECA,4

 and its implementing federal regulations,5 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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.7 

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

A.M.A., Guides.

8

 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each 

frequency are added up and averaged. Then, the fence of 25 dBAs is deducted because, as the 

A.M.A., Guides point out, losses below 25 dBAs result in no impairment in the ability to hear 

everyday speech under everyday conditions. 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 

binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for 

evaluating hearing loss.9

 

                                                             4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404. 

6 Id. at § 10.404(a). 

7

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

Chapter 2.808.5.a (February 2013); see also Part 3 -- Medical , Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010). 

8

 A.M.A., Guides 250. 

9 See J.H., Docket No. 08-2432 (issued June 15, 2009). 
4

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.10 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.11 A schedule award for 

tinnitus is not payable unless the medical evidence establishes that the condition caused or 

contributed to a ratable hearing loss.12 

ANALYSIS 

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

hearing loss warranting a schedule award. 

OWCP referred appellant to Dr. Blumenfeld for a second opinion evaluation. After 

reviewing a statement of accepted facts and the medical evidence of record, conducting a 

thorough physical evaluation, and obtaining an audiogram on March 10, 2015, Dr. Blumenfeld 

diagnosed bilateral work-related sensorineural hearing loss and tinnitus. Dr. Blum, an OWCP 

medical adviser, reviewed Dr. Blumenfeld’s report and concluded that appellant had no ratable 

hearing loss to warrant a schedule award. By decision dated March 30, 2015, OWCP denied 

appellant’s schedule award claim. 

The medical adviser applied OWCP’s standards to the March 10, 2015 audiogram 

performed as part of Dr. Blumenfeld’s second opinion evaluation to arrive at a binaural 

impairment rating of zero percent. Test results for the frequency levels recorded at 500, 1,000, 

2,000, and 3,000 Hz on the right revealed dBA losses of 25, 20, 20, and 20 dBAs respectively, 

for a total of 85 dBAs. This figure, when divided by four, results in an average hearing loss of 

21.25 dBAs. The average of 21.25 dBAs, when reduced by the 25-dBA fence and multiplied by 

1.5, results in a zero percent monaural hearing loss of the right ear. Testing for the left ear at the 

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

dBAs respectively, for a total loss of 70 dBAs; 70 dBAs divided by 4 results in an average of 

17.5 dBAs, which, when reduced by the 25-dBA fence and multiplied by 1.5, results in a zero 

percent monaural hearing loss of the left ear. As the monaural hearing loss rating was zero 

percent for both the left and right ears, the binaural hearing loss was also zero percent. This does 

not mean that appellant has no hearing loss. It means that the extent or degree of loss is 

insufficient to show a practical impairment in hearing according to the A.M.A., Guides.

13 The 

A.M.A., Guides set a threshold for impairment and appellant’s occupational hearing loss did not 

cross that threshold. Dr. Blum applied the proper standards to the March 10, 2015 audiogram. 

Appellant’s hearing loss was not ratable and, thus, a schedule award is not warranted. 

                                                             10 A.M.A., Guides 249. 

11 Id.; see also Robert E. Cullison, 55 ECAB 570 (2004). 

12 See Charles H. Potter, 39 ECAB 645 (1988). 

13 See P.V., Docket No. 13-1870 (issued January 7, 2014). 
5

The Board further finds that a schedule award for tinnitus is not warranted.14 FECA does 

not list tinnitus in the schedule of eligible members, organs, or functions of the body. A claimant 

may not directly receive a schedule award for tinnitus. Hearing loss is a covered function of the 

body, so if tinnitus contributes to a ratable loss of hearing, a claimant’s schedule award will 

reflect that contribution. The A.M.A., Guides provide that if tinnitus interferes with activities of 

daily living, up to five percent may be added to a measurable binaural hearing impairment.15 

The Board has held, however, that there is no basis for paying a schedule award for a condition 

such as tinnitus unless the evidence establishes that the condition caused or contributed to a 

ratable hearing loss.16 Although Dr. Blumenfeld diagnosed tinnitus, appellant’s hearing loss is 

not ratable and, therefore, the Board will affirm OWCP’s March 30, 2015 decision finding that 

he was not entitled to a schedule award. 

On appeal, appellant contends that previous records indicate hearing loss since the 

original filing date. He further contends that his hearing has gotten progressively worse. 

However, the audiogram prepared for Dr. Blumenfeld, as explained, does not show a ratable 

hearing loss. Furthermore, the June 27, 2013 audiogram reviewed by Dr. Rosenberg does not 

show a ratable hearing loss.17 While appellant also provided an August 11, 2014 audiogram, 

prepared by an audiologist, this cannot constitute probative medical evidence as it was not 

certified by a physician as accurate.18 Based on the findings and reasons stated above, the Board 

finds that appellant has not established that he has a ratable hearing loss and, as such, a schedule 

award is not warranted. 

Appellant may request a schedule award or increased schedule award 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 not met his burden of proof to establish a ratable 

hearing loss warranting a schedule award. 

                                                             14 Id. 

15 See A.M.A., Guides 249. 

16 See Juan A. Trevino, 54 ECAB 358 (2003); T.W., Docket No. 13-1967 (issued February 10, 2014); Richard 

Larry Enders, 48 ECAB 184 (1996). 

17 As noted, at the relevant frequencies it showed dBA losses of 5, 5, 0, and 0 for the right ear and 20, 15, 10, and 

5 for the left ear. 

18 See R.B., Docket No. 10-1512 (issued March 24, 2011); Joshua A. Holmes, 42 ECAB 231 (1990) (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). See also 5 U.S.C. § 8101(2) (defines the term “physician”); Charley V.B. Harley, 2 ECAB 208, 211 

(1949) (medical opinion, in general, can only be given by a qualified physician). 
6

ORDER 

IT IS HEREBY ORDERED THAT the March 30, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 11, 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