United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.S., Appellant 

and 

TENNESSEE VALLEY AUTHORITY, 

PARADISE FOSSIL PLANT, Drakesboro, KY, 

Employer 

__________________________________________ 

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Docket No. 17-0601 

Issued: August 10, 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 January 23, 2017 appellant filed a timely appeal from a November 29, 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 the accepted factors of his federal employment. 

FACTUAL HISTORY 

On March 2, 2016 appellant, then a 58-year-old manager of logistics support, filed an 

occupational disease claim (Form CA-2) alleging that he noticed that he had hearing loss 

 1

 5 U.S.C. § 8101 et seq. 
2

causally related to his federal employment on January 1, 2005 when he returned to the quieter 

corporate environment and could tell that his communications skills were impacted by his 

hearing loss. He noted that he delayed filing his claim due to the potential of reprisal. In 

completing the claim form, the employing establishment noted that appellant retired on 

January 9, 2016. 

On March 7, 2016 OWCP received records from appellant documenting his employment 

history. Appellant provided a summary of his positions at the employing establishment, 

commencing in September 1975, and an explanation of noise exposure in each position. He 

explained that he had been exposed to noise from aircraft jet engines as well as high-pitched 

steam leaks from industrial equipment. 

By letter dated March 15, 2016, OWCP advised appellant that further information was 

necessary to support his claim, and afforded him 30 days to submit the requested information. 

On the same date, it requested that the employing establishment submit information with regard 

to his employment and exposure to noise. 

On April 29, 2016 Dr. Whitney R. Mauldin, a Board-certified audiologist, responded for 

the employing establishment. He noted that, based on a review of appellant’s claim, medical 

records, work history, and audiometric records, it was his professional opinion that appellant did 

not meet FECA requirements for occurrence of event or causal relationship. Dr. Mauldin 

reviewed appellant’s work history, which began on April 28, 1980 as a student generating plant 

operator. Appellant held multiple positions since that time, including unit operator, shift 

operations coordinator, shift supervisor, production supervisor, business analyst consultant, 

manager, and specialist. Dr. Mauldin noted that appellant retired on January 9, 2016. He 

confirmed that the employing establishment had a hearing protection program. Dr. Mauldin 

noted that review of plant records revealed no employment-related incident resulting in 

acoustical trauma that would have affected appellant’s hearing anytime during his federal 

employment. He also noted that appellant received annual training regarding levels of noise 

considered hazardous and was informed of mandatory hearing protection required to adhere to 

the safety protocols. Dr. Mauldin noted that mandatory use of hearing protection devises in 

designated areas above 85 decibels would reduce appellant’s possible exposure to noise, thus 

mitigating any employment-related cause of his hearing loss. He further noted that appellant 

spent the last 17 years of his federal employment in an office setting where noise levels were 

“well below” 85 decibels, and noted that his last hearing examination indicated no ratable degree 

of hearing loss, mild downward sloping hearing loss in the left ear, and mild-to-moderate hearing 

loss in the right ear which was inconsistent with possible occupational noise levels. Dr. Mauldin 

contended that any hearing loss that appellant experienced would not be employment related. 

The record also contains an April 29, 2016 audiogram conducted by Dr. Mauldin. 

In a February 22, 2016 memorandum, Cassie Miles, a registered nurse, indicated that 

numerous documents were in appellant’s employing establishment records which indicated that 

ear defenders were fitted and issued, that his last audiogram conducted for the employing 

establishment was on May 26, 2005, that he would have exited the employing establishment’s 

hearing conservation program around 1999 upon a change of job duties which would not require 

inclusion in that program, and that his audiograms did not indicate a ratable hearing loss. 
3

OWCP prepared a statement of accepted facts on October 24, 2016 which outlined 

appellant’s history of employment at the employing establishment. 

On October 26, 2016 OWCP referred appellant to Dr. Joseph A. Motto, a Board-certified 

otolaryngologist, for a second opinion. In a November 15, 2016 response to OWCP’s queries, 

Dr. Motto found a moderate high frequency sensorineural hearing loss not due to appellant’s 

noise exposure at the employing establishment. He discussed the difference between appellant’s 

current audiogram and his audiogram when he began his federal employment, noting that he was 

hired with normal hearing, and discussed what the predicted loss would be due to aging. 

Dr. Motto noted that appellant did not meet the criteria for compensable noise-induced hearing 

loss that is calculated by the sum of 2,000, 3,000, and 4,000 hertz (Hz) and must be at least 25 

decibels to be compensable. An audiogram performed on November 15, 2016 related hearing 

thresholds of 500, 1,000, 2,000, and 3,000 Hz were 35, 30, 20, 40 decibels for the left ear and 15, 

15, 15, and 50 decibels for the right. 

By decision dated November 29, 2016, OWCP accepted that appellant’s employment 

factors occurred as alleged, but denied appellant’s claim as the evidence of record was 

insufficient to establish that his hearing loss was causally related to the accepted employment 

factors. It also found that the reason for that finding was that he did not meet the criteria for 

compensable noise-induced hearing loss. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA2

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

that any disabilities and/or specific conditions for which compensation is claimed are causally 

related to the employment injury.3 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

 

The schedule award provision of FECA5

 and its implementing regulations6 set 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. It, however, does not specify 

the manner in which the percentage of loss of a member shall be determined. The method used 

in making such determination is a matter which rests in the sound discretion of OWCP. For 

consistent results and to ensure equal justice, the Board has authorized the use of a single set of 

 2 Id. 

3 Elaine Pendleton, 40 ECAB 1143 (1989). 

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

5

 5 U.S.C. § 8107. 

6

 20 C.F.R. § 10.404. 
4

tables so that there may be uniform standards applicable to all claimants. The American Medical 

Association, Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides) (6th ed. 

2009), has been adopted by OWCP for evaluating schedule loss and the Board has concurred in 

such adoption.7

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.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. The Board has concurred in OWCP’s 

adoption of this standard for evaluating hearing loss.9 The Board has also noted OWCP’s policy 

to round the calculated percentage of impairment to the nearest whole number.10

OWCP procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to OWCP’s medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser 

providing rationale for the percentage of impairment specified.11 It may follow the advice of its 

medical adviser or consultant where he or she has properly utilized the A.M.A., Guides.12

ANALYSIS 

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

OWCP referred appellant to Dr. Motto for a second opinion as to whether appellant had a 

compensable hearing loss causally related to the accepted factors of his federal employment. 

The Board notes initially that Dr. Motto determined that appellant did not meet the 

criteria for determining compensable noise-induced hearing loss. However, in reaching this 

conclusion, Dr. Motto did not apply the proper procedures as noted in the A.M.A., Guides and 

followed by Board precedent.13 The November 15, 2016 audiogram does document hearing loss 

 7 R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also id. 

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

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

10 J.H., Docket No. 08-2432 (issued June 15, 2009); Robert E. Cullison, 55 ECAB 570 (2004). See also Federal 

(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b) (September 2010). 

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

Chapter 2.808.6(f) (March 2017). 

12 See Ronald J. Pavlik, 33 ECAB 1596 (1982); see also B.V., Docket No. 13-1015 (issued September 5, 2013). 

13 See supra note 8; see also B.C., Docket No. 16-0448 (issued November 9, 2016). 
5

in both ears and hearing loss above the 25 decibel threshold, of the left ear. Dr. Motto should 

have followed the proper methodology as set forth in the A.M.A., Guides to determine the 

percentage of appellant’s hearing loss, if any.14 

In addressing causal relationship, Dr. Motto also utilized a chart that discusses appellant’s 

predicted age-related hearing loss, a methodology inconsistent with Board precedent. OWCP 

asked him to address whether appellant’s workplace exposure was of sufficient intensity and 

duration to have caused the hearing loss in question. Dr. Motto simply answered this question 

“no” and thus his report requires further clarification. 

OWCP’s procedures provide that, regardless of the form a medical report takes, the 

report should include the physician’s reasoned opinion as to the relationship between the 

condition found and factors of federal employment.15 Dr. Motto failed to offer a rationalized 

medical explanation addressing appellant’s employment history and whether his employmentrelated noise exposure caused or aggravated his hearing loss. 

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter. While the claimant has the burden of proof to establish 

entitlement to compensation, OWCP shares the responsibility in the development of the evidence 

to see that justice is done.16 Once it undertakes development of the record it must do a complete 

job in procuring medical evidence that will resolve the relevant issues in the case.17

On remand, OWCP shall refer appellant for another second opinion to determine whether 

he has compensable hearing loss causally related to factors of his federal employment. After 

such further development of the evidence as necessary, it shall issue a de novo decision. 

CONCLUSION 

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

 14 Id. 

15 Supra note 10 at Chapter 3.600.6 (October 1990). 

16 D.G., Docket No. 15-0702 (issued August 27, 2015). 

17 Phillip L Barnes, 55 ECAB 426 (2004); see also Virginia Richard (Lionel F. Richard), 53 ECAB 430 (2002). 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated November 29, 2016 is set aside, and the case is remanded for 

further consideration consistent with this opinion. 

Issued: August 10, 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