United States Department of Labor 

Employees’ Compensation Appeals Board 

_________________________________________ 

C.R., Appellant 

and 

DEPARTMENT OF THE ARMY, 

Fort Detrick, MD, Employer 

__________________________________________ 

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Docket No. 16-0828 

Issued: September 12, 2017 

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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On March 15, 2016 appellant filed a timely appeal from a February 8, 2016 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 hearing loss causally 

related to factors of his federal employment. 

FACTUAL HISTORY 

On August 12, 2015 appellant, then a 62-year-old supervisory biological science lab 

technician, filed an occupational disease claim (Form CA-2) alleging hearing loss causally 

related to factors of his federal employment. He explained that he worked in cage wash and 

caretaker positions from December 1984 to August 2009. Appellant indicated that he was 

subjected to daily loud noises and that ear protection was not required until approximately three 

 1

 5 U.S.C. § 8101 et seq.
2

to four years prior to the filing of his claim. He indicated that he first became aware that his 

condition was caused by his federal employment on May 19, 2015. The employing 

establishment noted that appellant had been promoted to a supervisor in August 2009 and was 

thereafter no longer subjected to daily noise exposure. 

By letters dated August 19, 2015, OWCP requested additional information from appellant 

and the employing establishment. 

In a September 3, 2015 statement, appellant described his exposure to noise from 

August 1972 to the present. He advised that in his most recent position, he continued to be 

exposed to intermittent noise. Appellant indicated that on May 19, 2015, when tested as part of 

his annual examination, he received an audiogram that revealed hearing loss. He advised that he 

also had a claim with the Department of Veterans Affairs, filed November 19, 2012, for serviceconnected hearing loss.2

OWCP received an August 7, 2014 survey report for an animal husbandry position that 

included noise exposure levels. The levels for cage washing were indicated to be at 85 decibels 

or above. OWCP also received hearing conservation reports and audiograms dating from 

February 14, 1985 through March 27, 2013, as well as other personnel records. 

On September 10, 2015 OWCP received an undated response from K.E., the Chief, 

Department of Animal Husbandry, at the employing establishment. K.E. confirmed that the 

information provided by appellant was accurate and that he had worked with appellant since 

early 1996. He confirmed that appellant had been with the employing establishment since 

December 1984 and had worked in all areas of the building dealing with laboratory animal 

husbandry. K.E. explained that appellant worked with the animal cage washing equipment, such 

as rack and tunnel washers, and was responsible for moving cages and other equipment 

throughout the facility. He noted that most of these items were made of stainless steel 

construction and rolled on hard plastic rollers that could be very loud. K.E. explained that 

appellant’s duties typically involved daily, prolonged exposure to the noise hazards as described 

in the provided surveys. In most cases, the exposure would be eight hours per day, five days per 

week. In many cases, the duties would also be performed on weekends and holidays, adding 

more time to the standard workweek. K.E. advised that standard disposable foam earplugs were 

provided. He also provided documentation related to appellant’s employment. K.E. advised that 

appellant still had intermittent exposure to noise hazards for approximately two hours per day, 

two to three days per week. 

In a letter dated October 30, 2015, OWCP advised appellant that additional medical 

evidence was needed. In a statement of accepted facts (SOAF), it accepted that from 

August 1974 to July 1976 he worked for the U.S. Air Force in flight line maintenance and was 

exposed to jet engine noise eight hours a day, five days a week. From December 20, 1984 to the 

present, appellant worked for the employing establishment in various positions and was 

subjected to various degrees of noise exposure. 

 2

 The record reflects that appellant worked for the U.S. Air Force in flight line maintenance and was exposed to 

jet engine noise eight hours a day, five days a week from 1974 to 1976 and had a service-connected disability. 

Appellant also had a preexisting right ear condition. 
3

The SOAF indicated that from December 20, 1984 to December 14, 1985 when appellant 

worked as a laboratory worker, he was exposed to an average of between 84.2 and 92.7 decibels 

of noise without ear protection; from December 15, 1985 to August 2, 2008 when he worked as 

an animal caretaker, he was exposed to an average of between 84.2 and 92.7 decibels of noise 

with mandatory hearing protection; and from August 3, 2008 to the present, when working as a 

biological science laboratory technician (Animal), he was exposed to an average of 82 decibels 

of noise with mandatory hearing protection. He was also exposed to jet engine noise eight hours 

a day, five days a week when he worked for the U.S. Air Force in flight line maintenance from 

August 1974 to July 1976. 

By letter dated November 2, 2015, OWCP referred appellant for a second opinion 

examination, along with a copy of the SOAF, a set of questions, and the medical record to 

Dr. Bibhas C. Bandy, a Board-certified otolaryngologist. 

In his November 17, 2015 report, Dr. Bandy noted that appellant was seen for evaluation 

and management of his gradual hearing loss in both ears, worse in the right. He indicated that 

appellant had suffered with continuous ringing noise in both ears for several years. Appellant 

also had infrequent momentary loss of balance, but no objective vertigo and no hearing 

fluctuation at the time of ataxia. Dr. Bandy noted appellant’s history of federal employment and 

his exposure to frequent loud noise exposure up to eight hours daily. He advised that appellant 

also had noise exposure in the Air Force. Dr. Bandy related that appellant had no other noise 

trauma in his home life. Appellant noted a history of recurrent childhood otitis media and rightsided tympanoplasty surgery when he was a teenager. After surgery he had no otorrhea, or 

drainage, from the right ear but hearing did not improve significantly. Dr. Bandy examined 

appellant and diagnosed right-sided moderate-to-severe mixed hearing loss due to adhesive tight 

middle ear cavity disease with possible ossicular chain disruption or loss of normal alignment. 

Appellant had tympanosclerosis of right eardrum and middle ear cavity and possible stapes 

fixation in right ear. 

Dr. Bandy found bilateral high-tone moderate-to-severe sensorineural hearing loss due to 

possible noise exposure, mild deviated nasal septum with chronic rhinitis, and tinnitus both ears. 

He noted that appellant had significant hearing loss in the right ear, mixed type, with large air 

bone gap. Dr. Bandy found a good cochlear reserve in both ears. When asked if appellant 

showed sensorineural hearing loss in excess of what would be expected on the basis of 

presbycusis, he responded: “yes to a certain extent.” Dr. Bandy responded “yes” with regard to 

whether the sensorineural hearing loss was due to appellant’s federal employment. In comparing 

appellant’s current hearing loss to that at the beginning of his exposure, he advised that “to a 

certain extent” the hearing loss was in excess of what would normally be predicted on the basis 

of presbycusis. Dr. Bandy recommended a hearing aid for the right ear. He indicated that he did 

not see active right ear infection for which appellant needed any medical treatment. Audiometric 

test results included verification by a certified audiologist on November 12, 2015. Dr. Bandy 

found that appellant sustained hearing thresholds of the right ear at 500, 1,000, 2,000, and 3,000 

cycles per second of 65, 60, 65, and 50 decibels, respectively and to the left ear at 500, 1,000, 

2,000, and 3,000 cycles per second of 15, 20, 25, and 30 decibels, respectively. 

OWCP requested that its district medical adviser (DMA) provide an opinion on 

impairment. In a January 17, 2016 report, the DMA noted that, per the SOAF, prior to 

appellant’s federal employment for the period August 1974 to July 1976, he had worked for the 
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U.S. Air Force in flight line maintenance where he was exposed to jet engine noise eight hours a 

day, five days a week. He also noted that he had a history of right ear disease requiring a 

tympanoplasty. The DMA explained that these two issues were responsible for the preexisting 

right ear hearing loss observed when appellant was first tested by the employing establishment in 

1985. He explained that it was important to note that appellant had worked for the employing 

establishment for only two months before the first test was performed on February 14, 1985 and 

advised that this was not enough exposure time to cause or aggravate noise-induced hearing loss. 

The DMA related that, during the federal employment from December 20, 1984 to August 2, 

1988, appellant was exposed to potentially hazardous noise levels (above 85 decibels). He also 

noted that, from August 3, 2008 to the present, appellant was exposed to noise levels that were 

below the hazardous limits (two hours a day at 82 decibels). The DMA also noted that hearing 

tests from February 14, 1985 through April 1, 1999 revealed normal hearing in the left ear and 

mild-to-moderate high frequency loss in the right ear. He reiterated that “this is a preexisting 

condition and unrelated to [f]ederal [e]mployment).” The DMA noted that industrial hearing 

tests from February 14, 1985 through April 1, 1991 provided no significant high frequency 

change in either ear (as defined as 15 decibels or greater in any high frequency in either ear). He 

indicated that any hearing changes after the 1991 testing was unrelated to federal employment as 

federal workplace noise exposures were below hazardous noise levels. The DMA opined that, 

based upon the medical evidence provided, appellant had preexisting conditions responsible for 

the right ear hearing loss and his left ear hearing was normal. He also indicated that appellant’s 

preexisting hearing loss was not aggravated by his federal workplace noise exposures. 

By decision dated February 8, 2016, OWCP denied appellant’s claim for compensation as 

the medical evidence of record failed to establish that the claimed condition was causally related 

to the accepted federal employment factors. 

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 of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA, that the injury was sustained in the performance of duty as 

alleged, and that any disability and/or specific condition for which compensation is claimed are 

causally related to the employment injury. 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.4

 

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) 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 

 3 Supra note 1. 

4 Gary J. Watling, 52 ECAB 357 (2001). 
5

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

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

The medical evidence required to establish causal relationship is generally 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 a 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.5

 

An award of compensation may not be based on surmise, conjecture, or speculation. 

Neither the fact that appellant’s condition became apparent during a period of employment, nor 

the belief that the condition was caused, precipitated, or aggravated by his employment, is 

sufficient to establish causal relationship.6 The mere fact that a disease or condition manifests 

itself or worsens during a period of employment7

 or that work activities produce symptoms 

revelatory of an underlying condition8 does not raise an inference of causal relation between the 

condition and the employment factors. 

ANALYSIS 

It is undisputed that appellant was exposed to work-related noise from December 20, 

1984 to the present in varying levels. It is also undisputed that he worked for the U.S. Air Force 

in flight line maintenance and was exposed to jet engine noise eight hours a day, five days a 

week from 1974 to 1976 and that he had a service-connected disability. The record also reflects 

that appellant had a preexisting right ear condition. 

The second opinion physician Dr. Bandy provided a November 17, 2015 report in which 

he found significant hearing loss in the right ear, mixed type, and a good cochlear reserve in both 

ears. When asked if appellant showed sensorineural hearing loss in excess of what would be 

expected on the basis of presbycusis, he responded: “yes to a certain extent.” Dr. Bandy also 

responded “yes” in regard to whether the sensorineural hearing loss was due to his federal 

employment and whether he recommended a hearing aid for the right ear. 

On October 30, 2015 OWCP requested that its DMA review the SOAF and medical 

records and provide an opinion on whether appellant sustained hearing loss causally related to 

factors of his federal employment and, if so, whether it was ratable permanent impairment. 

In his January 17, 2016 report, the DMA noted the history of injury, reviewed the 

medical records, and reviewed the SOAF. He concluded that appellant’s hearing loss was not 

 5 Solomon Polen, 51 ECAB 341 (2000). 

6 Robert G. Morris, 48 ECAB 238-39 (1996); William Nimitz, Jr., 30 ECAB 567, 570 (1979). 

7 William Nimitz, Jr., id. 

8 Richard B. Cissel, 32 ECAB 1910, 1917 (1981). 
6

caused or aggravated by his federal workplace noise exposures. The DMA noted that appellant 

had a history of right ear disease requiring a tympanoplasty which he determined was responsible 

for the preexisting right ear hearing loss as exhibited on the first audiometric test performed at 

the employing establishment in 1985. As this first testing occurred only two months after 

appellant commenced his federal employment, the DMA determined that the preexisting hearing 

loss was not caused or aggravated by workplace exposures. He noted that no significant hearing 

loss had occurred between 1985 and 1991 based upon audiometric testing. The DMA 

commented that from December 20, 1984 to August 2, 1988 claimant was exposed to hazardous 

noise and that after 1991 he was not exposed to hazardous noise levels. He opined that any 

changes to appellant’s hearing after the 1991 testing were unrelated to federal employment 

factors because the workplace exposures to noise were below hazardous noise levels. 

The Board finds that the opinion of the DMA did not fully account for the noise 

exposures as set forth in the SOAF. The SOAF indicated that from December 20, 1984 to 

December 14, 1985 when appellant worked as a laboratory worker, he was exposed to an 

average of between 84.2 and 92.7 decibels of noise without ear protection; from December 15, 

1985 to August 2, 2008 when he worked as an animal caretaker, he was exposed to an average of 

between 84.2 and 92.7 decibels of noise with mandatory hearing protection; and from August 3, 

2008 to the present, when working as a biological science laboratory technician (Animal) he was 

exposed to an average of 82 decibels of noise with mandatory hearing protection. He was also 

exposed to jet engine noise eight hours a day, five days a week from August 1974 to July 1976 

when working for the U.S. Airforce. OWCP’s DMA did not account for each of these noted 

periods of noise exposure, nor did he explain whether such exposures were sufficient to cause or 

aggravate hearing loss. 

It is well established that a physician’s opinion must be based on a complete and accurate 

factual and medical background. When OWCP sends medical records and a SOAF to its DMA 

and provides a list of questions for resolution, that physician’s opinion must be based on a 

complete and accurate factual and medical background.9

 Here, the DMA did not base his 

decision on the SOAF. 

To assure that a report of a medical specialist is based upon an accurate factual 

background, OWCP provides information to the physician through the preparation of a SOAF.10 

Its procedures provide the necessary information to be contained within the SOAF in order to 

provide the physician with a complete and accurate factual history upon which to base his or her 

opinion.11 When the physician renders a medical opinion based on an incomplete or inaccurate 

history, or does not use the SOAF as the framework in forming his or her opinion, the probative 

value of the opinion is diminished.12 

 9 V.C., Docket No. 14-1912 (issued September 22, 2015). 

10 See A.T., Docket No. 14-153 (issued July 2, 2014). 

11 Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 

(October 1990). 

12 See A.R., Docket No. 11-692 (issued November 18, 2011); Willa M. Frazier, 55 ECAB 379 (2004). 
7

The Board thus finds that the January 17, 2016 report of OWCP’s medical adviser is 

insufficient on the issue of causal relationship and permanent impairment because the medical 

opinion is not based on the SOAF. The Board notes the second opinion physician, Dr. Bandy, 

advised that appellant’s hearing loss was caused or aggravated by appellant’s employment and 

indicated that there were findings in excess of that expected from presbycusis. 

It is well established that proceedings under FECA are not adversarial in nature and, 

while the claimant has the burden of proof to establish entitlement to compensation, OWCP 

shares the responsibility in the development of the evidence.13 Thus, the Board finds that this 

case is not in posture for decision and must be remanded for further development. After such 

further development as it deems necessary, OWCP shall issue an appropriate decision.

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT the February 8, 2016 decision of the Office of 

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

consistent with this decision. 

Issued: September 12, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 13 P.K., Docket No. 08-2551 (issued June 2, 2009).