United States Department of Labor

Employees’ Compensation Appeals Board

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J.V., Appellant

and

DEPARTMENT OF THE NAVY, FLEET 

READINESS CENTER, SW, San Diego, CA, 

Employer

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Docket No. 17-0973

Issued: July 19, 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 April 3, 2017 appellant filed a timely appeal from a February 27, 2017 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 has met his burden of proof to establish hearing loss 

causally related to factors of his federal employment. 

FACTUAL HISTORY

On September 1, 2016 appellant, then a 56-year-old pneudraulic systems mechanic, filed 

an occupational disease claim (Form CA-2) alleging that his hearing loss was caused by factors 

of his federal employment. He indicated that he first became aware of his loss of hearing on 

January 23, 2015 and related it to factors of his federal employment on July 26, 2016. Appellant

explained that he noticed a loss of hearing over the two prior years, which was worsening. He 

 

1 5 U.S.C. § 8101 et seq.
2

further explained that he worked around loud machinery and test equipment constantly while 

wearing hearing protection. Appellant further explained that his delay in filing his claim was 

because his supervisor was on vacation and he could not complete the form. He did not stop 

work.

OWCP received a July 26, 2016 audiology report from Susan Fletcher, an audiologist. 

Ms. Fletcher noted that the comprehensive audiometry report showed normal hearing to speech 

for each ear. She explained that pure tones showed a borderline normal-to-mild sensorineural 

hearing loss of 250 to 800 Hertz (Hz) for each ear. Ms. Fletcher explained that word recognition 

was excellent in the left ear and good in the right ear. She also found tympanometry was normal 

for each ear. Additionally, ipsi and contra acoustic reflexes were present at 500, 1,000, and 

2,000 Hz for each ear. Ms. Fletcher determined that appellant was fit for duty and should 

implement consistent use of hearing protection devices both on and off duty to prevent further 

hearing loss. She recommended annual hearing screening to monitor hearing sensitivity. 

Ms. Fletcher determined that appellant had unspecified sensorineural hearing loss.

By development letter dated September 6, 2016, OWCP requested additional information 

from appellant. It explained that the evidence submitted was insufficient to establish that he 

actually experienced the employment factors alleged to have caused the injury. OWCP 

requested that appellant complete a questionnaire listing his employment history, exposure to 

hazardous noise at work, the date he first noticed his hearing loss, and all previous ear or hearing 

programs and hobbies involving exposure to loud noise. It did not request that he provide a 

complete medical history form or submit past medical records. OWCP afforded appellant 30 

days to submit the requested information.

In a separate letter to the employing establishment dated September 6, 2016, OWCP 

requested details to include: the locations of appellant’s job sites where the alleged exposure 

occurred; sources of exposure to noise and machinery; the decibel and frequency level (to 

include a noise survey report for each job site and the period of exposure; and the types of ear 

protection and noise attenuation in decibels if known. It also requested employment data and the 

date of last exposure to hazardous noise, if no longer exposed to noise, and the pay rate in effect 

on that date.

In a September 21, 2016 response to the questionnaire, appellant indicated that he had no 

prior claims for hearing or ear conditions, nor did he have any hobbies which involved exposure 

to loud noise. He explained that he worked for the employing establishment from January 7, 

1985 to present as a pneudraulic mechanic on aircraft components for over 22 years at one site,

and 10 years at another site. Appellant was constantly surrounded by noises on test stands and 

test equipment with other machinery in the pneudraulic shop while always wearing his ear 

protection at all times for 8 to 10 hours a day, 5 to 6 days a week. He explained that they had 

pneumatic tools and loud test equipment, which had loud noises and pitching sounds 

continuously. Furthermore, appellant explained that he worked on cargo plane jet engines, 

aircraft, and test stands that were loud for 16 years in the Air Force reserves. He noted that his 

exposure to loud and noisy aircraft and test stands over a course of 40 years contributed to the 

loss of his hearing, which was worsening as time went on. Appellant also noted that it was 

difficult to listen to people talking and hear music or television. He explained that while he was 

working in a noisy environment he wore hearing protection, but that did not prevent the loud 

noises and constant ringing and humming sounds. Appellant indicated that, on February 15, 
3

2014, he noticed his hearing was worsening and it was harder for him to hear, and he had 

blockage and buzzing sounds. He noted that, on December 23, 2015, he had difficulty listening 

and understanding while communicating with others and his hearing tests were getting worse and 

declining as a result, as his records indicated. Appellant explained that he had hearing tests with 

the employing establishment personnel physicians and that he planned to submit the audiogram

results to OWCP. 

Appellant provided a copy of the July 26, 2016 audiogram from Ms. Fletcher, which was 

illegible. 

OWCP also received an August 16, 2016 e-mail from R.M., a safety and occupational 

health specialist, who noted that he was providing notification that appellant had a shift in his 

hearing. R.M. also noted that appellant could work without restrictions.

On November 14, 2016 OWCP contacted the employing establishment requesting a 

position description, along with any audiograms or medical records from the agency hearing loss 

programs.

In a November 17, 2016 e-mail, D.T., a supervisor, confirmed that appellant was exposed 

to noise in the hydraulic shop and test room. He indicated that appellant was exposed to high-tomoderate decibel frequencies for 8 to 10 hours a day, 6 days a week, for 18 years in the present 

shop. D.T. noted that appellant wore double hearing protection, earplugs, and earmuffs. He also 

provided a position description, but noted no copy of his medical records. 

On November 23, 2016 OWCP referred appellant, together with the medical record and a 

statement of accepted facts (SOAF), to Dr. Theodore Mazer, a Board-certified otolaryngologist, 

for a second opinion evaluation to include audiometric testing. 

In a December 23, 2016 report, Dr. Mazer noted appellant’s history. He indicated that 

appellant’s chief complaints were declining hearing since at least five years ago. Dr. Mazer 

noted that he was seen at Kaiser Permanente four years ago, but no records were received, and 

that appellant participates in a hearing conservation program and that he baseline had been reset 

three to four times, but those records were not sent for review. He requested that, when they 

became available, he would provide a supplemental report. Dr. Mazer also noted that appellant 

complained of occasional ringing in the ears, which was always present. He explained that 

appellant indicated that there was an “occasional ringing in the ears, always present.” When

Dr. Mazer asked appellant to clarify the description, he responded that it was there “on and off

continuously and fluctuating but annoying and not interfering with sleep or activities of daily 

living.” He noted that appellant had vertigo a few years prior, with a negative medical 

evaluation at Permanente Otolaryngology, treated with some pills. Dr. Mazer explained that he 

used dual ear protection in noise and planned to retire in approximately two to three years. He

noted that appellant was also part of the hearing conservation program. 

Dr. Mazer examined appellant’s ears and found that they were unremarkable. He

determined that tuning fork testing was normal, conversational speech understanding in a quiet 

room was normal at normal volumes. Furthermore, there was no objective tinnitus on 

auscultation, nor any bruits or murmurs. Regarding the audiometric evaluation, Dr. Mazer 

advised that the audiogram was calibrated prior to the examination. He determined that internal 
4

inconsistencies (speech discrimination scores were normal reflex levels and disparities compared 

with July 2016 raised concerns about the accuracy responses to the test). Dr. Mazer opined that 

the results showed bilaterally flat hearing loss, with the left greater than the right, through 3,000 

Hz, with a mild down sloping loss above 2,000 Hz and minimal signs of noise notch on the right 

ear at 3,000 Hz. He advised that the speech reception threshold was 20 decibels on the right, 40 

decibels on the left, compared to 25 decibels in each ear only five months earlier. Dr. Mazer 

determined that speech discrimination scores were below projected at only 64 percent on the 

right, and 56 percent on the left, despite normal conversational observation and normal excellent 

speech discrimination scores just five months earlier. He found that impedance and reflex 

testing were within normal limits. Dr. Mazer determined that there was no elevation of reflexes 

in either ear, highlighting possible exaggeration of pure tone responses. He diagnosed bilaterally 

flat hearing loss with the left greater than the right. Dr. Mazer explained that the variation of 

testing over just five months, from nonratable to ratable levels of loss and for symmetric loss to 

left symmetry along with marked and out of proportion drop in speech discrimination scores 

raises concern regarding accuracy of testing. He advised that it was not consistent with the usual 

course of noise-induced loss to “suddenly accelerate after 30 years of reported exposure nor is 

the low frequency loss consistent with noise[-]induced injury.” Dr. Mazer opined that “although 

the current testing if used for ratings purposes would result in a ratable impairment not present 

on testing should not be relied upon the rating purpose. In addition, any current loss would not 

be permanent and stationary as he continues in the same noise exposure environment at work 

with no immediate retirement plans.” He explained that appellant had a history of hearing loss 

and tinnitus at the time of military discharge, absent any records from that time. Dr. Mazer 

further explained that appellant had a history of nonwork-related dizziness, which may be related 

to other ear conditions for which evaluation was done in 2014, for which records were not made 

available for his review. He also explained that even if he accepted the current testing, “the 

pattern of loss did not support occupational noise exposure.”

Dr. Mazer determined that under the current testing, and the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment,

2

(A.M.A., Guides), 

appellant had monaural hearing losses of 11.25 percent on the right and 30 percent on the left, 

for a combined 14.4 percent binaural hearing loss. He reiterated that he did not believe that the 

current testing was an accurate reflection of appellant’s hearing level nor supportive of his 

occupational injury. Additionally, Dr. Mazer determined that the tinnitus was preexistent and 

did not raise a ratable level at this time, constituting a mere annoyance with nonspecific 

descriptions of intensity and persistence. He opined that appellant’s hearing loss was not 

permanent and stationary at this time. Dr. Mazer noted that his prior medical records, including 

all of his hearing conservation testing or other hearing tests at work and from his prior 

employers, should be forwarded for review and a supplemental report. He opined that there were 

no work restrictions aside from usual hearing conservation. Dr. Mazer explained that there were 

no work restrictions, aside from the usual hearing conservation. He recommended a repeat 

hearing test in six months rather than a year in order to determine more accurately his hearing 

status for any progression, especially given the reported changes since July 2016. Dr. Mazer 

explained that, based upon the July 2016 testing, appellant was only a marginal candidate for 

amplification. He noted that he did not recommend amplification at this time, at least until a 

 

2 A.M.A., Guides (6th ed. 2009).
5

subsequent testing to compare the two most recent tests. Dr. Mazer further explained that the 

amplification would not be work related for the above-noted reasons. 

By decision dated February 27, 2017, OWCP denied appellant’s claim. It denied the 

claim because the requirements had not been met for establishing that he sustained an injury 

causally related to the accepted work factors. OWCP explained that the reason for the finding 

was that Dr. Mazer found inconsistencies in the testing and raised concerns regarding the 

accuracy of responses to the testing. It determined that even when viewed in a light most 

favorable to appellant, the medical evidence of record could not be construed as substantive, 

reliable, and probative evidence that he sustained a work-related hearing impairment. 

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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 FECA, that the claim was timely filed within the applicable time 

limitation period of FECA, that an injury was sustained in the performance of duty, as alleged, and 

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

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

regardless of whether the claim is predicated upon a traumatic injury or an 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. 

The medical evidence required to establish causal relationship, generally, is rationalized 

medical opinion evidence. Rationalized medical opinion evidence is medical evidence which 

includes a physician’s rationalized opinion on the issue of whether there is causal relationship 

between the claimant’s diagnosed condition and the implicated 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.6

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. Although it is the claimant’s burden of proof to establish his or her claim, OWCP shares 

 

3 Supra note 1.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5 Victor J. Woodhams, 41 ECAB 345 (1989).

6

Id.
6

responsibility in the development of the evidence, particularly when such evidence is of the 

character normally obtained from the employing establishment or other government source.7 It 

shares responsibility to see that justice is done.8 

ANALYSIS

The Board finds that this case is not in posture for decision.

Appellant filed a claim for occupational hearing loss and indicated that he first became 

aware of his loss of hearing on January 23, 2015 and related it to factors of his federal 

employment on July 26, 2016. He explained that he noticed a loss and worsening of his hearing 

over the past two years. Appellant further explained that he worked around loud machinery and 

test equipment constantly while wearing hearing protection. It is undisputed that appellant was 

in a hearing conservation program with the employing establishment.

In the development of the claim the employing establishment was instructed to provide 

audiograms or medical records from its hearing conservation program. No records were 

provided by the employing establishment.

OWCP referred appellant to second opinion physician, Dr. Mazer, for an opinion 

regarding whether he had developed sensorineural hearing loss due to his federal employment 

duties. On December 23, 2016 Dr. Mazer examined appellant and reviewed the medical records 

and noted that appellant’s chief complaints were declining hearing for at least the past five years. 

He specifically noted that some of appellant’s records were unavailable. For example, Dr. Mazer 

explained that appellant was seen at Kaiser Permanente four years prior for his hearing problems, 

but no records were received relative to that medical treatment. Furthermore, he noted that 

appellant was actively involved in the employing establishment’s hearing conservation program

and his baseline had been reset three or four times. Dr. Mazer indicated that he would provide a 

supplemental report if provided with the additional records.

The Board finds that OWCP must further develop the factual aspect of this record. 

Dr. Mazer advised in his second opinion report that appellant had received treatment relative to 

his hearing with Kaiser Permanente approximately four years prior to the second opinion 

examination and these records had not been provided for his review. Moreover, he noted that 

while appellant was in the employing establishment’s hearing conservation program, 

audiological and other records from that program were not provided for his consideration. 

OWCP must develop this factual aspect of the case before a determination can be made 

regarding causal relationship.

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. Although it is the claimant’s burden of proof to establish his or her claim, OWCP shares 

responsibility in the development of the evidence, particularly when such evidence is of the 

character normally obtained from the employing establishment or other government source.9 It 

 

7 See R.A., Docket No. 17-1030 (issued April 16, 2018).

8 See S.P., Docket No. 11-1271 (issued April 19, 2012).

9 Supra note 7.
7

shares responsibility to see that justice is done.10 OWCP shall obtain all relevant records from 

the employing establishment’s hearing conservation programs and from appellant’s other known 

medical providers and thereafter provide all relevant records it obtains to Dr. Mazer for a 

supplemental report.11 Following this and any other factual development deemed necessary, 

OWCP shall issue a de novo decision in the case.12

The case will be remanded for further factual development. 

CONCLUSION

The Board finds that this case is not in posture for a decision. 

ORDER

IT IS HEREBY ORDERED THAT the February 27, 2017 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: July 19, 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

 

10 Supra note 8.

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapters 2.800.4, 2.800.7,

2.800.8, and 2.800.10 (June 2011).

12 E.S., Docket No. 17-0601 (issued August 10, 2017); Phillip L Barnes, 55 ECAB 426 (2004); see also Virginia 

Richard (Lionel F. Richard), 53 ECAB 430 (2002).