United States Department of Labor

Employees’ Compensation Appeals Board

___________________________________________

A.G., Appellant

and

DEPARTMENT OF JUSTICE, U.S. MARSHALS 

SERVICE, Minneapolis, MN, Employer

___________________________________________

)

)

)

)

)

)

)

)

Docket No. 17-1778

Issued: December 18, 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 16, 2017 appellant filed a timely appeal from an August 3, 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 the case.

ISSUE

The issue is whether appellant has met his burden of proof to establish greater than 32

percent binaural hearing loss, for which he previously received a schedule award.

FACTUAL HISTORY

On June 1, 2009 appellant, then a 65-year-old retired U.S. Marshal, filed an occupational 

disease claim (Form CA-2) alleging that he sustained binaural hearing loss due to exposure to loud 

noise in the performance of duty with the employing establishment. He noted that he first became 

 

1 5 U.S.C. § 8101 et seq.
2

aware of his claimed condition in the mid 1980’s and realized its relation to his federal employment 

on October 27, 2006.2 On July 1, 2009 OWCP accepted appellant’s claim for binaural 

sensorineural hearing loss. 

By decision dated August 13, 2009, under File No. xxxxxx908, OWCP granted appellant 

a schedule award for 17 percent binaural hearing loss. The award ran for the period December 19, 

2008 through April 11, 2009.

By decision dated November 9, 2009, OWCP amended the August 13, 2009 schedule 

award, as appellant was paid at an incorrect rate. It explained that since he had not sustained

ratable binaural sensorineural hearing loss under File No. xxxxxx908, due to his employment with 

the Federal Bureau of Investigation, it should have paid the schedule award based on his 

employment with the employing establishment, under File No. xxxxxx964.

Accordingly, by amended decision dated November 9, 2009, OWCP granted appellant a 

schedule award for 17 percent binaural hearing loss under File No. xxxxxx964. It determined that 

he had reached maximum medical impairment (MMI) on December 19, 2008. OWCP determined 

that the award ran for a total of 34 weeks of compensation for the period December 19, 2008 

through April 11, 2009.

By letter dated October 27, 2015, appellant requested an additional schedule award. 

In a development letter dated December 18, 2015, OWCP noted its receipt of appellant’s 

request for additional compensation due to his accepted work-related condition worsening and 

possible additional impairment. It noted that he needed to complete a claim for compensation

(Form CA-7) for an additional schedule award. OWCP also advised appellant to submit a report 

from his physician and noted that he needed to utilize the sixth edition of the American Medical 

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

3

On September 27, 2016 appellant submitted a Form CA-7 and requested an additional

schedule award.

In a letter dated October 14, 2016, OWCP requested additional information from appellant, 

noting that it appeared he was claiming disability due to a material change/worsening of his 

accepted work-related conditions. In a November 7, 2016 response, appellant noted that he was 

fully retired from the employing establishment. He explained that “without doubt exposure to loud 

noises caused my hearing to gradually decrease. I believe that my current hearing loss is a 

continuation. I was first examined for my claim on [December 19, 2008.] My hearing loss has 

increased. The loss was gradual.” 

 

2 OWCP assigned the present claim File No. xxxxxx964. Appellant has a prior claim under File No. xxxxxx908. 

On February 7, 2008 he, then a 65-year-old retired special agent, filed an occupational disease claim (Form CA-2) 

alleging that he sustained binaural hearing loss due to exposure to loud noise in the performance of duty. OWCP 

accepted appellant’s claim for binaural sensorineural loss causally related to his noise exposure as a special agent with 

the FBI.

3 A.M.A., Guides (6th ed. 2009).
3

In a November 7, 2016 report, Dr. Paul C. Frake, an otolaryngologist, noted that appellant 

was seen for evaluation of his hearing loss. He examined appellant and reviewed audiometric 

findings, also dated November 7, 2016. Dr. Frake explained that he compared the findings with a 

previous audiogram from December 2008. He opined that the difference in testing revealed a 5 to 

10 decibels (dB) worsening at 1,000 Hertz (Hz) in both ears as well as a 30 dB worsening in both 

ears at 2,000 Hz. Dr. Frake noted that word recognition was previously 100 percent and was not 

in the 80’s. He diagnosed impacted cerumen of the right ear and sensorineural hearing loss. 

Dr. Frake recommended hearing aid amplification if appellant was bothered by his reduction in 

hearing. 

On April 18, 2017 OWCP referred appellant, together with a statement of accepted facts 

to Dr. Inell Rosario, a Board-certified otolaryngologist, for a second opinion evaluation regarding 

whether appellant’s current extent of hearing loss was attributable to the accepted conditions due 

to his federal employment.

In a May 23, 2017 report, Dr. Rosario noted appellant’s history of injury and treatment and 

further noted that, in comparing the present audiometric findings to those of the beginning of his 

exposure, appellant’s increasing hearing loss was more than would be expected by presbycusis. 

Dr. Rosario opined that the workplace exposure was sufficient in intensity and duration to have 

caused the loss in question. She found that appellant’s ear canals and drums had normal dimension 

and the tympanic membranes were intact without significant typanosclerosis. Dr. Rosario found 

no indication of an acoustic neuroma or Meniere’s disease. She opined that appellant had hearing 

loss related to his workplace exposure working in law enforcement. Dr. Rosario found bilateral 

sensorineural hearing loss and bilateral tinnitus, which was due to his federal employment. She 

explained that appellant had no loss prior to his noise exposure, that he had minimal social noise 

exposure, and that he had a negative family history of hearing loss. Dr. Rosario recommended 

hearing aids. The results of an audiometric examination performed that day reflected testing at the 

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

following: right ear 25, 25, 55, and 75 dBs; left ear 30, 30, 55, 80 dBs, respectively. She 

determined that appellant had 30.9375 percent binaural hearing impairment. Dr. Rosario added 

one percent for slight tinnitus, which was only heard in a quiet environment and very easily 

masked. The extent of total binaural hearing loss was determined to be 31.93 percent. 

On July 23, 2017 the district medical adviser (DMA), Dr. Jeffrey M. Israel, a Boardcertified otolaryngologist, reviewed the otologic and audiologic testing performed by Dr. Rosario 

and advised that he concurred with her findings. He applied OWCP’s standardized procedures to 

his evaluation. Dr. Israel determined that MMI had been achieved on May 23, 2017, the date of 

the audiogram. He utilized the sixth edition of the A.M.A., Guides and determined that appellant 

had previously received an award of 17 percent for binaural hearing loss. The DMA determined 

that 31.9 percent (which included 1 percent for mild tinnitus) minus 17 percent was equal to 14.9 

percent, the adjusted award. He recommended yearly audiograms and noise protection for his 

hearing and authorized hearing aids. 

By decision dated August 3, 2017, OWCP granted appellant a schedule award for an 

additional 15 percent binaural hearing loss, for a total of 30 weeks of compensation for the period 

May 23 through July 22, 2017. The total binaural hearing loss award was 32 percent.
4

LEGAL PRECEDENT

The schedule award provisions of FECA4and its implementing regulations5set 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 to all claimants, good administrative practice necessitates the 

use of a single set of tables so that there may be uniform standards applicable to all claimants. The 

A.M.A., Guides has been adopted by OWCP through its implementing regulations as the 

appropriate standard for evaluating schedule losses.6

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

A.M.A., Guides.

7

 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 dBs is deducted because, as the 

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

everyday speech under everyday conditions.8 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 and then added to the greater loss and the total is divided by six to arrive at the amount of the 

binaural hearing loss. 

ANALYSIS

The Board finds that appellant has not established greater than 32 percent binaural hearing 

loss, for which he previously received a schedule award.

On July 23, 2017 the DMA reviewed the otologic and audiologic testing performed by

second opinion physician Dr. Rosario, a Board-certified otolaryngologist. He concurred with her 

findings and properly applied OWCP’s standardized procedures to this evaluation. Testing for the 

right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cps revealed decibel losses of 25, 

25, 55, and 75 respectively. These decibel losses were totaled at 180 dBs and were divided by 4 

to obtain the average hearing loss of 45 dBs. This average loss was then reduced by 25 dBs (25 

dBs being discounted as discussed above) to equal 20. The 20 was multiplied by 1.5 to equal 30 

percent right monaural loss. Testing for the left ear at the frequency levels of 500, 1,000, 2,000,

and 3,000 cps revealed decibel losses of 30, 30, 55, and 80 respectively. These decibel losses 

totaled 195 dBs and when divided by 4 result in an average hearing loss of 48.75 dBs. This average 

loss when reduced by 25 dBs (25 dBs being discounted as discussed above) equals 23.75. When 

multiplied by 1.5, this equals a 35.625 percent monaural loss on the left. The DMA determined 

 

4 5 U.S.C. § 8107.

5 20 C.F.R. § 10.404.

6

Id.

7 E.S., 59 ECAB 249 (2007); Reynaldo R. Lichetenberger, 52 ECAB 462 (2001).

8 See A.M.A., Guides 250.
5

that for binaural hearing loss (5 multiplied by (30) plus (35.63) divided by 6 was equal to 30.9 

percent binaural loss. The Board notes that this would equate to 31 percent as it is proper OWCP 

policy to round the calculated percentage of impairment up to the nearest whole number.9 

Fractions are rounded down from 0.49 and up from 0.50.10 The DMA concurred that appellant 

also had one percent award for tinnitus. He explained that appellant previously received a past 

award of 17 percent for binaural hearing loss and subtracted this from the amount and arrived at 

14.9 percent award, which OWCP rounded up to 15 percent.

The Board finds that there is no current medical evidence of record supporting that 

appellant has greater loss than that previously awarded under OWCP’s standardized procedures 

for rating hearing loss.

On appeal appellant argues that OWCP used an incorrect date of MMI. As noted above, 

the date of MMI is based on the probative medical evidence of record and is usually considered to 

be the date of the evaluation by the attending physician that is accepted as definitive by OWCP.11 

The evaluation accepted as definitive by OWCP was Dr. Rosario’s May 23, 2017 report, which 

was reviewed and affirmed by the DMA. The Board finds that OWCP properly determined the 

date of MMI for schedule award purposes.

Appellant may request a schedule award or increased schedule award at any time 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 greater than 32 

percent binaural hearing loss, for which he previously received a schedule award.

 

9

J.Q., 59 ECAB 366 (2008).

10 Carl J. Cleary, 57 ECAB 563 (2006). 

11 In assessing eligibility for a schedule award, the medical evidence must show that the impairment has reached a 

permanent and fixed state, which is generally referred to as MMI. See Federal (FECA) Procedure Manual, Part 2 --

Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5b(1) (February 2013). Assuming MMI 

has been attained, the date of MMI is usually considered to be the date of the evaluation by the attending physician 

that is accepted as definitive by OWCP. Schedule awards begin on the date of MMI, unless circumstances show that 

a later date should be used. A retroactive determination of the date of MMI is not per se erroneous. When the medical 

evidence establishes that the employee did in fact reach MMI by such date, the determination is proper. Id. at Chapter 

2.808.7b.
6

ORDER

IT IS HEREBY ORDERED THAT the August 3, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 18, 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