United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.G., Appellant

and

DEPARTMENT OF THE NAVY, JOINT BASE 

PEARL HARBOR-HICKAM, HI, Employer

__________________________________________

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Docket No. 17-1090

Issued: March 12, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

COLLEEN DUFFY KIKO, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 12, 2017 appellant, through counsel, filed a timely appeal from a January 6, 

2017 merit decision and a February 8, 2017 nonmerit 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 to consider the merits of 

the case.

 

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

ISSUES

The issues are: (1) whether appellant met his burden of proof to establish a ratable 

hearing loss warranting a schedule award; and (2) whether OWCP properly denied appellant’s 

request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

On appeal counsel contends that the correct issue is whether appellant has any 

measurable hearing loss, rather than whether he has a ratable hearing loss warranting a schedule 

award.

FACTUAL HISTORY

On December 21, 2015 appellant, then a 62-year-old marine machinery mechanic 

supervisor, filed an occupational disease claim (Form CA-2) alleging that he had developed 

hearing loss and tinnitus due to his federal employment.

In a letter dated December 24, 2015, OWCP requested additional factual and medical 

evidence from appellant supporting his occupational disease claim.

Appellant provided a listing of his positions at the employing establishment and the ear 

protection he utilized during his period of employment. He also provided an October 6, 2015 

report from an audiologist diagnosing normal-to-moderate sensorineural hearing loss bilaterally. 

Appellant submitted an employing establishment hearing conservation program audiographic

report dated November 25, 2015.

On January 18, 2016 OWCP referred appellant for a second opinion evaluation with

Dr. Ronald P. Peroff, a Board-certified otolaryngologist. It also referred appellant for 

audiological examination with Marylee Ruth, an audiologist, on January 29, 2016. The 

audiogram from Ms. Ruth was dated February 3, 2016 and received by OWCP on 

February 25, 2016. Appellant’s February 3, 2016 audiogram demonstrated testing at 500, 1,000, 

2,000, and 3,000 Hertz (Hz). This test demonstrated bilateral losses of 15, 10, 15, and 40 

decibels. The audiographic equipment was calibrated on July 22, 2015.

In his February 2, 2016 report, Dr. Peroff reviewed the statement of accepted facts, 

performed a physical examination, and mentioned both the November 25, 2015 audiogram and 

the February 3, 2016 audiogram from Ms. Ruth. He found that appellant did not have a ratable 

impairment under the A.M.A., Guides under either of these audiograms. Dr. Peroff diagnosed 

noise-induced sensorineural hearing loss. In a supplemental report dated February 21, 2016, he 

attributed appellant’s noise-induced sensorineural hearing loss to his federal employment. 

OWCP referred the medical evidence to OWCP’s medical adviser on February 26, 2016. The

medical adviser reported on March 10, 2016, based on Dr. Peroff’s report, that appellant had no 

ratable hearing loss.

By decision dated March 14, 2016, OWCP accepted appellant’s claim for bilateral 

sensorineural hearing loss. In a separate decision also dated March 14, 2016, it denied his claim 

for a schedule award finding that his hearing loss was not sufficiently severe to be considered 

ratable.
3

On March 23, 2016 counsel requested an oral hearing from OWCP’s Branch of Hearings 

and Review. Appellant testified at the oral hearing on November 8, 2016 and noted that he had 

retired from the employing establishment on January 2, 2016. He reported tinnitus in both ears.

By decision dated January 6, 2017, OWCP’s hearing representative found that appellant 

did not have a ratable hearing loss as, after applying the hearing loss formula, appellant did not 

have a hearing loss percentage in either ear above zero. OWCP’s hearing representative found 

that tinnitus could not be the sole basis for a schedule award, but could be included up to five 

percent when there was a ratable hearing loss.3

In a letter dated January 27, 2017, counsel requested reconsideration of the January 6, 

2017 decision. He accepted that under the A.M.A., Guides the correct standard for including 

tinnitus in a schedule award was a “measurable” hearing loss not a “ratable” hearing loss. 

Counsel asserted that the Trevino4case misstated the A.M.A., Guides and had long been used as 

false authority to deny compensation.

By decision dated February 8, 2017, OWCP declined to reopen appellant’s claim for 

consideration of the merits of his case. It found that his January 27, 2017 request for 

reconsideration did not comply with the requirements for review of the merits.

LEGAL PRECEDENT -- ISSUE 1

Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules 

and regulations for the administration and enforcement of FECA. The Secretary of Labor has 

vested the authority to implement the FECA program with the Director of OWCP.5 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.6 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. Through its implementing 

regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating 

schedule losses.7

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition 

of the A.M.A., Guides (2009).8 The Board has approved the use by OWCP of the A.M.A., 

 

3

Juan A. Trevino, 54 ECAB 358 (2003).

4

Id.

5 See 20 C.F.R. §§ 1.1-1.4.

6 For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. 

§ 8107(c)(1).

7 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

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

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability

Claims, Chapter 2.808.5a (February 2013). 
4

Guides for the purpose of determining the percentage loss of use of a member of the body for 

schedule award purposes.9

The Board requires that the employee undergo both audiometric and otologic 

examination, that the audiometric testing precede the otologic examination, that the audiometric 

testing be performed by an appropriately certified audiologist, that the otologic examination be 

performed by an otolaryngologist certified or eligible for certification by the American Academy 

of Otolaryngology, that the audiometric and otologic examination be performed by different 

individuals as a method of evaluating the reliability of the findings, that all audiological 

equipment authorized for testing meet the calibration protocol contained in the accreditation 

manual of the American Speech and Hearing Association. The audiometric test results must 

include both bone conduction and pure tone air conduction thresholds, speech reception 

thresholds and monaural discrimination scores, and the otolaryngologist’s report must include: 

date and hour of examination, date and hour of employee’s last exposure to loud noise, a 

rationalized medical opinion regarding the relation of the hearing loss to the employment-related 

noise exposure, and a statement of the reliability of the tests.10

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 cycles per second, the 

losses at each frequency are added up and averaged. Then, the fence of 25 decibels is deducted 

because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in 

the ability to hear everyday speech under everyday conditions.11 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. The Board has concurred in OWCP’s 

adoption of this standard for evaluating hearing loss.12 The Board has also noted OWCP’s policy 

to round the calculated percentage of impairment to the nearest whole number.13

ANALYSIS -- ISSUE 1

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

OWCP referred appellant for a second opinion evaluation with Dr. Peroff, a Boardcertified otolaryngologist, and also referred appellant for audiological examination with

Ms. Ruth, an audiologist. In his February 2, 2016 report, Dr. Peroff determined that neither the 

November 25, 2015, nor the February 3, 2016 audiographic results constituted a ratable loss of 

 

9

Isidoro Rivera, 12 ECAB 348 (1961).

10 Raymond H. VanNett, 44 ECAB 480, 482-83 (1993).

11 See A.M.A., Guides 250.

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

13 J.H., Docket No. 08-2432 (issued June 15, 2009), Robert E. Cullison, 55 ECAB 570 (2004). See supra note 6 

at Chapter 3.700.4(b)(2)(b) (January 2010).
5

hearing. OWCP’s medical adviser agreed with Dr. Peroff’s assessment that there was no ratable 

hearing loss after he had reviewed the medical evidence on March 11, 2016. Instead of 

reviewing the most recent audiogram performed by Ms. Ruth, complying with the calibration 

and other standards required by the Board and requested by OWCP, he relied on the 

November 25, 2015 employing establishment’s audiographic report and calculated appellant’s 

hearing loss for schedule award purposes based on figures contained in this report. He did not 

provide or review the decibel losses as reported by Ms. Ruth on the February 3, 2016 audiogram 

diagram. The Board finds that OWCP’s medical adviser’s report is not in keeping with the 

medical requirements listed above as he did not review an actual audiogram which was 

conducted on properly calibrated equipment.

14

OWCP’s hearing representative reviewed Ms. Ruth’s February 3, 2016 audiogram

diagram in his January 6, 2017 decision. However, OWCP’s procedures require that medical 

evidence for schedule award purposes should be referred to an OWCP medical adviser for an 

opinion concerning the nature and percentage of impairment.

15

 OWCP’s medical adviser is to 

determine the percentage of impairment based on the standards of the A.M.A., Guides. In this 

case, OWCP’s medical adviser did not properly apply the standards in evaluating the 

audiographic data. He relied on the employing establishment’s uncalibrated audiographic report 

rather than Ms. Ruth’s calibrated and documented audiogram dated February 2, 2016 in 

determining appellant’s permanent impairment.

16

 Therefore, OWCP’s medical adviser did not 

appropriately determine appellant’s permanent impairment based on the appropriate standards. 

OWCP’s hearing representative’s actions in reviewing the medical evidence are insufficient to 

properly determine appellant’s permanent impairment for schedule award purposes in keeping 

with OWCP’s procedures. If OWCP’s medical adviser fails or neglects to provide rationale for 

the percentage of impairment specified, OWCP should request a clarification or supplemental 

report from the medical adviser.17 On remand, OWCP should request a supplemental report 

from OWCP’s medical adviser which relies on the proper application of the standards to the 

appropriate audiographic evidence to determine appellant’s permanent loss of hearing for 

schedule award purposes. Following this and any necessary further development, OWCP shall 

issue a de novo decision.

CONCLUSION

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

18

 

14 See B.C., Docket No. 16-0448 (issued November 9, 2016) (finding that OWCP’s medical adviser must consider 

the audio graphic diagram to determine complete, accurate, and internally consistent audiometric test results).

15 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.6f (March 2017).

16 Vernon Brown, 54 ECAB 376 (2003); L.M., Docket No. 14-0773 (issued August 1, 2014).

17 Supra note 15 at 2.808.6.f(2)(a).

18 In light of the Board’s disposition of the schedule award issue, the second issue of whether OWCP properly 

denied appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a) is moot.
6

ORDER

IT IS HEREBY ORDERED THAT February 8 and January 6, 2017 decisions of the 

Office of Workers’ Compensation Programs are set aside and remanded for further development 

consistent with this decision of the Board.19

Issued: March 12, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

19 Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board 

effective December 11, 2017.