United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.F., Appellant 

and 

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA, Employer 

__________________________________________ 

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Docket No. 15-0246 

Issued: September 19, 2016 

Appearances: Case Submitted on the Record

David G. Jennings, Esq., for the appellant1

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 November 12, 2014 appellant, through counsel, filed a timely appeal from an 

October 16, 2014 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. 

ISSUE 

The issue is whether appellant has more than 19 percent binaural hearing loss causally 

related to his federal employment, for which he received a schedule award. 

 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

On appeal, counsel notes that a second opinion physician added 1 percent impairment to 

appellant’s hearing loss for tinnitus, thereby totaling 20 percent binaural hearing loss while an 

OWCP medical adviser excluded the 1 percent impairment for tinnitus without explanation. He 

further notes that up to five percent may be added for tinnitus according to the sixth edition of 

the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides). Counsel cites Board precedent and contends that the case should be remanded to 

OWCP to request that the second opinion physician provide a supplemental report explaining her 

rationale for giving one percent impairment for tinnitus. 

FACTUAL HISTORY 

On December 5, 2012 appellant, then a 59-year-old supervisory mechanical project zone 

manager, filed an occupational disease claim (Form CA-2) alleging that on June 25, 1992 he first 

became aware of hearing loss in both ears and first realized that his condition was caused by 

noise at work. He retired from the employing establishment effective January 1, 2011. 

On May 29, 2013 OWCP referred appellant to Dr. Eugenia M. Gray, a Board-certified 

otolaryngologist, for a second opinion impairment evaluation. In a June 27, 2013 report, 

Dr. Gray diagnosed bilateral high frequency sensorineural hearing loss and checked a box 

indicating that appellant’s noise exposure in his federal employment was sufficient to cause 

binaural hearing loss. An audiogram performed on her behalf on the same date reflected testing 

at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps) and revealed the 

following decibel (dB) losses: 10, 15, 60, and 65 for the right ear and 15, 20, 60, and 65 for the 

left ear, respectively. Based on these results and in accordance with the sixth edition of the 

A.M.A., Guides, Dr. Gray determined that appellant had a 20.375 percent binaural hearing loss. 

She advised that he had reached maximum medical improvement on the date of her examination. 

Dr. Gray recommended hearing protection when indicated and hearing aids. On the form report 

she added 1 percent impairment for tinnitus, resulting in a total 19.75 percent monaural hearing 

impairment in the right ear (18.75 percent + 1 percent for tinnitus) and 23.5 percent monaural 

hearing impairment in the left ear (22.5 percent + 1 percent for tinnitus). Dr. Gray calculated a 

binaural hearing impairment of 20.375 percent. 

In a June 27, 2013 decision, OWCP accepted appellant’s claim for bilateral hearing loss. 

On November 15, 2013 appellant filed a Form CA-7 claim for a schedule award. 

In a December 2, 2013 report, Dr. Duane J. Taylor, a Board-certified otolaryngologist 

and OWCP medical adviser, reviewed Dr. Gray’s report and audiometric test results. He 

concurred with her audiometric findings that appellant had 18.75 percent monaural hearing loss 

in the right ear and 22.5 percent monaural hearing loss in the left ear, which yielded a 19.37 

percent binaural hearing loss. Dr. Taylor omitted the rating for tinnitus. He determined that the 

date of maximum medical improvement was June 11, 2013, the date of Dr. Gray’s second 

opinion examination and audiometric test. He recommended authorization for hearing aids and 

protection, and yearly audiograms. 
3

In an October 16, 2014 decision, OWCP granted appellant a schedule award for 19 

percent binaural hearing loss impairment, entitling him to 38 weeks of compensation. The 

period of the award ran from June 11, 2013 to March 3, 2014. 

LEGAL PRECEDENT 

The schedule award provision of FECA3 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 

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.4

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 cps, the losses at each 

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

A.M.A., Guides points out, losses below 25 dB 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 the 

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

evaluating hearing loss.5

ANALYSIS 

On appeal counsel contends that appellant has greater impairment based upon the opinion 

of Dr. Gray. 

OWCP accepted that appellant sustained a bilateral hearing loss due to noise. It 

developed the claim by referring him to Dr. Gray. Dr. Gray diagnosed bilateral sensorineural 

hearing loss. She opined that the hearing loss was due to appellant’s workplace noise exposure 

and recommended hearing protection and hearing aids. Applying the June 27, 2013 audiometric 

data, Dr. Gray calculated that appellant had 18.75 percent monaural hearing impairment in the 

right ear and 22.5 percent hearing impairment in the left ear. On the form report, she added 1 

percent impairment for tinnitus, resulting in a total 19.75 percent monaural hearing impairment 

in the right ear (18.75 percent + 1 percent for tinnitus) and 23.5 percent monaural hearing 

 3 Id.

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

5 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). 
4

impairment in the left ear (22.5 percent + 1 percent for tinnitus). Dr. Gray calculated a binaural 

hearing impairment of 20.375 percent. 

The Board finds this case not in posture for a decision as clarification is required from 

Dr. Gray as to why she added one percent impairment for tinnitus. Regarding tinnitus, the 

A.M.A., Guides states, tinnitus in the presence of unilateral or bilateral hearing impairment may 

impair speech discrimination. Therefore, up to five percent may be added for tinnitus in the 

presence of measurable hearing loss if the tinnitus impacts the ability to perform activities of 

daily living (ADLs).6

 Although Dr. Gray included one percent impairment for tinnitus in 

appellant’s monaural impairment determinations, she did not address how this impacted him in 

his ADLs.7 Further, while she noted +1 tinnitus in her report, Dr. Gray did not include tinnitus 

as a diagnosis. 

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter. While the claimant has the burden to establish entitlement to 

compensation, OWCP shares the responsibility in the development of the evidence to see that 

justice is done. As OWCP undertook development of the evidence by referring appellant to 

Dr. Gray, it has the duty to secure an appropriate report addressing the relevant issues.8

 Because 

Dr. Gray did not explain why she included a rating for tinnitus in her determination of 

appellant’s hearing loss, the case will be remanded to OWCP to request Dr. Gray to provide a 

supplemental report explaining her rationale for giving a one percent impairment rating for 

tinnitus when she did not list it as a diagnosis.9 Following this and any necessary further 

development, OWCP shall issue a de novo decision relative to the extent and degree of 

appellant’s hearing impairment. 

CONCLUSION 

The Board finds that this case is not in posture for a decision as to whether appellant has 

more than 19 percent binaural hearing loss, for which he received a schedule award. 

 6 See R.D., supra note 4; David W. Ferrall, 56 ECAB 362 (2005). 

7 R.G., Docket No. 11-19 (issued August 3, 2011); J.P., Docket No. 09-1520 (issued March 1, 2010). 

8 Peter C. Belkind, 56 ECAB 580 (2005). 

9 D.W., Docket No. 14-931 (issued August 11, 2014); V.D., Docket No. 13-331 (issued August 12, 2013). 
5

ORDER 

IT IS HEREBY ORDERED THAT the October 16, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

consistent with this decision of the Board. 

Issued: September 19, 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