United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.J., Appellant 

and 

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer 

__________________________________________ 

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Docket No. 17-0267 

Issued: January 27, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 15, 2016 appellant filed a timely appeal from a June 6, 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.2

ISSUE 

The issue is whether appellant has met his burden of proof to establish ratable hearing 

loss. 

 1

 5 U.S.C. § 8101 et seq.

 2

 The Board notes that appellant submitted additional medical evidence after OWCP rendered its June 6, 2016 

decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final 

decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On June 9, 2015 appellant, then a 60-year-old police officer, filed an occupational disease 

claim (Form CA-2) for bilateral hearing loss, which he attributed to his federal employment. He 

submitted a series of annual audiograms from July 2005 through October 2014, some of which 

were administered as part of the employing establishment’s hearing conservation program.3

 

Appellant indicated that he first became aware of his employment-related hearing loss on 

October 1, 2010. He reported that as a police officer, he was exposed to noise from trades 

working in industrial areas, such as chipping, grinding, etc. Appellant was also exposed to noise 

from vehicles and trucks while working the gates. His occupational noise exposure occurred for 

up to eight hours per day and hearing protection was not permitted to be worn. 

OWCP referred appellant to Dr. Julie Gustafson, a Board-certified otolaryngologist, for a 

second opinion. In an October 20, 2015 report, Dr. Gustafson diagnosed sensorineural hearing 

loss and tinnitus. She stated that appellant’s workplace exposure would be considered of 

sufficient intensity and duration to have materially impacted the hearing loss in question. In 

conclusion, Dr. Gustafson indicated that appellant had a mild high-frequency sensorineural 

hearing loss that may be related to presbycusis, but could have a contribution from noise 

exposure. An October 20, 2015 audiogram, performed on Dr. Gustafson’s behalf, reflected 

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

following decibel (dB) losses: 10, 15, 10, and 25 for the right ear and 20, 15, 15, and 15 for the 

left ear. Based on these results and in accordance with American Medical Association, Guides to 

the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001), Dr. Gustafson 

determined that appellant had zero percent binaural hearing loss. She also noted that appellant’s 

hearing loss did not appear to be severe enough to warrant amplification at that time. 

On November 6, 2015 OWCP accepted appellant’s claim for bilateral sensorineural 

hearing loss and bilateral tinnitus, with an October 1, 2010 date of injury. 

In a November 12, 2015 report, OWCP’s district medical adviser (DMA) reviewed 

Dr. Gustafson’s report and October 20, 2015 audiometric test results. He concurred with 

Dr. Gustafson’s finding of an “extremely mild” hearing loss. The DMA further noted that the 

October 20, 2015 audiogram results showed no impairment for hearing loss or tinnitus based on 

either the fifth or sixth editions of the A.M.A., Guides. He determined that the date of maximum 

medical improvement was October 20, 2015, which coincided with the date of Dr. Gustafson’s 

examination.4

 

 3

 The record indicates that appellant served in the Navy from August 1972 through August 1998. He worked in 

the private sector from 1998 until May 2003, with no significant noise exposure. From May 2003 through 

September 2008, appellant worked for the Department of Defense as a security guard. During that timeframe, he 

reported limited exposure to noise from ships and tankers, approximately one hour per day. Appellant began work 

as a police officer with the employing establishment on September 28, 2008. 

4

 The DMA further noted that appellant’s hearing loss was not severe enough to justify authorization of hearing 

aids. Notwithstanding the consensus among Dr. Gustafson and the DMA that hearing aids (amplification) were 

unnecessary, OWCP authorized hearing aids by letter dated November 17, 2015. 
3

By decision dated November 20, 2015, OWCP found that the medical evidence of record 

failed to establish a permanent, measurable, scheduled impairment under the A.M.A., Guides (6th

ed. 2009). 

On December 18, 2015 appellant requested a review of the written record before a 

representative of the Branch of Hearings and Review. He did not submit any additional medical 

evidence with his request. 

By decision dated June 6, 2016, an OWCP hearing representative affirmed the 

November 20, 2015 decision. She noted that appellant did not submit any additional evidence to 

support that his hearing loss was ratable for schedule award purposes. 

LEGAL PRECEDENT 

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions, and organs of the body.5

 FECA, 

however, does not specify the manner by which the percentage loss of a member, function, or 

organ shall be determined. To ensure consistent results and equal justice under the law, good 

administrative practice requires the use of uniform standards applicable to all claimants. The 

implementing regulations have adopted the A.M.A., Guides as the appropriate standard for 

evaluating schedule losses.6 Effective May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).7

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

frequency are added up and averaged.8 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.9 The remaining amount is multiplied by a factor of 

1.5 to arrive at the percentage of monaural hearing loss.10 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.11

 5

 For complete loss of hearing of one ear, an employee shall receive 52 weeks’ compensation. 5 U.S.C. 

§ 8107(c)(13). For complete loss of hearing of both ears, an employee shall receive 200 weeks’ compensation. Id.

6

 20 C.F.R. § 10.404. 

7 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6a 

(February 2013). 

8 See A.M.A., Guides 248-51 (6th ed. 2009), section 11.2, Hearing and Tinnitus. 

9 Id. at 250. 

10 Id. at 250-51. 

11 Id. at 251. 
4

ANALYSIS 

On November 6, 2015 OWCP accepted appellant’s claim for bilateral sensorineural 

hearing loss and bilateral tinnitus, with an October 1, 2010 date of injury. It had previously 

referred appellant to Dr. Gustafson for an October 20, 2015 evaluation, which included an 

audiogram. Dr. Gustafson correctly noted that the October 20, 2015 audiogram tested dB losses 

at 500, 1,000, 2,000, and 3,000 cycles per second and recorded dB losses of 10, 15, 10, and 25, 

respectively in the right ear. The total dB loss in the right ear is 60. When divided by 4, the 

result is an average hearing loss of 15 dB. The average of 15 dB, reduced by 25 dB (the first 25 

dB were discounted as discussed above), equals 0 dB, which when multiplied by the established 

factor of 1.5 computes to zero percent hearing loss in the right ear. The October 20, 2015 

audiogram tested dB losses for the left ear at 500, 1,000, 2,000, and 3,000 cycles per second and 

recorded dB losses of 20, 15, 15 and 15, respectively. The total dB loss in the left ear is 65. 

When divided by four, the result is an average hearing loss of 16.25 dB. The average hearing 

loss of 16.25 is reduced by the fence of 25 dB to zero, which when multiplied by the established 

factor of 1.5 computes zero percent hearing loss in the left ear. Therefore under this calculation 

appellant had zero percent binaural hearing loss. 

OWCP’s medical adviser concurred in the finding of zero percent binaural hearing loss 

based on the October 20, 2015 audiogram results and found that appellant had no ratable hearing 

loss under the A.M.A., Guides (6th ed. 2009). 

Although appellant submitted annual audiometric test results dating back to July 2005, 

these earlier audiograms are insufficient to meet appellant’s burden of proof as they did not 

comply with the requirements set forth by OWCP. These tests lack speech testing and bone 

conduction scores and were not prepared or certified as accurate by a physician as defined under 

FECA. The audiograms were not accompanied by a physician’s opinion addressing how 

appellant’s post-September 2008 employment-related noise exposure caused or aggravated any 

hearing loss. OWCP is not required to rely on this evidence in determining the degree of 

appellant’s hearing loss because it does not constitute competent medical evidence and, 

therefore, is insufficient to satisfy appellant’s burden of proof.12

Dr. Gustafson provided a thorough examination and a reasoned opinion explaining how 

the findings on examination and testing were causally related to the noise in appellant’s 

employment. The Board finds that Dr. Gustafson’s audiometric test results showing zero percent 

hearing loss represent the weight of the evidence. As there was no other medical evidence of 

record establishing that appellant had ratable hearing loss causally related to employment factors, 

the Board affirms OWCP’s June 6, 2016 decision affirming the November 20, 2015 decision 

denying appellant a schedule award. 

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 employmentrelated condition resulting in permanent impairment or increased impairment. 

 12 Joshua A. Holmes, 42 ECAB 231, 236 (1990). 
5

CONCLUSION 

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

loss. 

ORDER 

IT IS HEREBY ORDERED THAT the June 6, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: January 27, 2017 

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