United States Department of Labor

Employees’ Compensation Appeals Board

_________________________________________

J.B., Appellant

and

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 17-0984

Issued: July 11, 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 April 4, 2017 appellant filed a timely appeal from the March 1, 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 this case. 

ISSUE

The issue is whether appellant has met his burden of proof to establish that he sustained 

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

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On December 14, 2016 appellant, then an 80-year-old retired pipefitter,

2

filed an

occupational disease claim (Form CA-2) alleging that his binaural hearing loss was caused by 

factors of his federal employment. He indicated that he had gradual and progressive hearing loss 

due to noise exposure confirmed by an audiologist. Appellant indicated that he first became 

aware of his claimed condition and its relationship to factors of his federal employment on 

February 28, 1991. He explained that his delay in filing his claim was because he was not told

that he could file a claim. The employing establishment indicated that a letter of controversion

would follow. 

By development letter dated December 15, 2016, OWCP requested additional 

information from appellant. It advised appellant to submit additional evidence regarding the 

timely notification of his claim, evidence to establish that he actually experienced the 

employment factors alleged to have caused his injury, and evidence to support that he was 

injured while performing duties of his federal employment. Appellant was also asked to 

complete a questionnaire listing his employment history, exposure to hazardous noise at work, 

the date he first noticed his hearing loss, all previous ear or hearing programs in which he 

participated, and hobbies involving exposure to loud noise. Additionally, he was asked to 

explain his failure to file the claim in a timely manner. Appellant was afforded 30 days to 

submit the requested information.

In a separate letter to the employing establishment, dated December 15, 2016, OWCP 

requested information, including that the locations of appellant’s job sites where the alleged 

exposure occurred, sources of exposure to noise and machinery, the decibel and frequency level

(to include a noise survey report for each job site and the period of exposure, and the types of ear 

protection and noise attenuation in decibels if known. It also requested employment data and the

date of last exposure to hazardous noise and the pay rate in effect on that date.

In a letter dated November 29, 2016, T.K., a patient care coordinator, provided a copy of 

appellant’s Form CA-2 and noted that he was filing a claim for hearing loss that occurred while 

working for the employing establishment from August 27, 1964 until his retirement on 

February 28, 1991. 

In a December 15, 2016 letter, J.S., an employing establishment human resources 

specialist, controverted the claim. She noted that the claim was filed more than three years after 

the last known date of exposure, which was from 1964 to 1991. J.S. argued that it was unknown 

if the injury occurred due to working at the employing establishment or what the exposure levels 

outside the employing establishment were for the last 25 years. She also argued that there was 

no medical evidence to establish that appellant sustained hearing loss due to factors of his federal 

employment. J.S. noted that there was no major shift in hearing from 1964 to his last audiogram 

in 1991. 

OWCP received notification of personnel action forms (SF-50s) dated February 22, 1991 

and April 27, 1964, a pipefitter description, appellant’s work history and application for 

 

2 The record reflects that appellant retired on February 28, 1991. 
3

employment, and an occupational hearing loss claim checklist dated November 7, 2016. It also 

received employing establishment audiograms and audiometric results dated April 25, 1979, 

August 24, 1981, March 3, 1983, February 2, 1984, February 7 and 26, 1985, February 7, 1987, 

February 3, 1988, February 1, 1991, and November 7, 2016.

On January 25, 2017 OWCP referred appellant, together with the medical record and a 

statement of accepted facts (SOAF),

3

to Dr. Richard Seaman, a Board-certified otolaryngologist, 

for a second opinion evaluation to include an audiogram. 

In February 16, 2017 report, Dr. Seaman noted appellant’s history. He indicated that 

appellant’s chief complaints were hearing loss and very occasional tinnitus, which was not 

bothersome. Additionally, Dr. Seaman noted that appellant related that he first noticed hearing 

loss about 10 years prior and did not have any significant tinnitus and never wore hearing aids. 

Additionally, he noted that appellant believed that his hearing loss was related to his federal 

employment. Dr. Seaman determined that appellant was hearing impaired in all situations and 

reiterated that he had occasional tinnitus, which was not bothersome. He noted that, at the time 

of appellant’s retirement in 1991, his hearing was well within normal range and that since that 

time, his hearing deteriorated remarkably. Dr. Seaman indicated that appellant was also part of 

the hearing conservation program. He examined appellant’s ears and found that the ear canals 

and Tympanic membranes were normal. Dr. Seaman found that the 500 cycle fork was midline, 

air greater than bone bilaterally, throat, and neck were negative. He also found that the 

audiogram was done in a sound attenuated booth, with an audiometer calibrated on 

June 23, 2016. Dr. Seaman advised that the audiogram revealed a severe bilateral high 

frequency hearing loss extending well into speech ranges and that he had 72 percent 

discrimination on the right and 60 percent discrimination on the left. He determined that the 

speech reception thresholds and pure-tone averages agreed that the audiogram was valid and the 

Tympanogram was normal bilaterally.

Dr. Seaman diagnosed bilateral sensorineural hearing loss. He explained that appellant’s 

hearing loss at the beginning and the end of his federal employment was within normal limits. 

With regard to comparing appellant’s present audiometric findings with those at the beginning of 

exposure, Dr. Seaman advised that it was not applicable because appellant had moderate-tosevere sensorineural hearing loss that came on since his retirement. He explained that his 

workplace exposure could have easily contributed to his hearing loss but there was no evidence 

that this occurred. Dr. Seaman found that there were no other significant contributory factors 

other than presbycusis. He also determined that there was no evidence of Meniere’s disease or 

acoustic neuroma. Dr. Seaman recommended hearing aids for both ears, based upon presbycusis 

and not on an industrial noise damage. He opined that his conclusion was based upon 

appellant’s audiometric findings which were well within normal limits. Dr. Seaman referenced 

the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment, (A.M.A., Guides).

4

 He determined that appellant had binaural hearing loss of 

 

3

In the SOAF, OWCP noted that appellant was exposed to noise in his federal employment from chippers, 

grinders, sanders, deck crawlers, needle guns, drills, and saws for eight hours per day, plus overtime, from April 27, 

1964 to February 28, 1991. Additionally, it was noted that hearing protection was provided and used. 

4 A.M.A., Guides (6th ed. 2009).
4

28.125 percent on the right and 31.875 percent on the left. Additionally, Dr. Seaman determined 

that the tinnitus rating was zero. He reiterated that appellant’s hearing loss was not due to noise 

damage. 

By decision dated March 1, 2017, OWCP denied appellant’s claim on the fifth basic 

element, causal relationship, hiding that he had not established that he sustained hearing loss

causally related to the accepted factors of his federal employment. It explained that the reason 

for the finding was that Dr. Seaman opined that appellant’s hearing loss was due to presbycusis 

(age) and not industrial noise exposure. OWCP noted that appellant’s hearing was within normal 

limits at the time of his retirement on February 22, 1991 and there was no other evidence 

submitted establishing a link between his federal employment and the current hearing loss. 

LEGAL PRECEDENT

An employee seeking benefits under FECA 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 FECA, that the claim was timely filed within the applicable time 

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

that any disability or specific condition for which compensation is claimed is causally related to the 

employment injury.5 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.6

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) a 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 which 

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

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

The medical evidence required to establish causal relationship, generally, is 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 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.7

 

5

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

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

7

Id.
5

ANALYSIS

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

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

Appellant did not provide any medical evidence providing a rationalized medical opinion 

supportive of his claim for employment-related occupational hearing loss. 

OWCP referred appellant to a second opinion physician, Dr. Seaman, who concluded that 

appellant did not have any sensorineural hearing loss due to his federal employment. On

February 16, 2017 Dr. Seaman examined appellant and reviewed the medical record, including 

the sequential audiograms conducted during appellant’s federal employment. He explained that 

appellant’s chief complaints were hearing loss and very occasional tinnitus, which was not 

bothersome. Dr. Seaman noted that appellant related that he first noticed hearing loss about 10 

years ago, that he did not have any significant tinnitus, and he had never worn hearing aids. He 

reviewed the record and explained that, at the time of appellant’s retirement in 1991, his hearing 

was well within normal range. Dr. Seaman explained that since that time, his hearing 

deteriorated remarkably. He also noted that appellant had participated in the hearing 

conservation program. Dr. Seaman diagnosed binaural sensorineural hearing loss and explained 

that appellant’s hearing loss at the beginning and the end of his federal employment was within 

normal limits. 

With regard to comparing appellant’s present audiometric findings with those at the 

beginning of exposure, Dr. Seaman advised that it was not applicable because appellant had 

moderate to severe sensorineural hearing loss that came on since his retirement. He also 

explained that, while his workplace exposure could have easily contributed to his hearing loss, 

there was no evidence to support that this occurred. Additionally, there were no other significant 

contributory factors other than presbycusis. Dr. Seaman advised that there was no evidence of 

Meniere’s disease or acoustic neuroma. He recommended hearing aids for both ears, based upon 

presbycusis and not on industrial noise damage. Dr. Seaman opined that his conclusion was 

based upon appellant’s audiometric findings which were well within normal limits. He 

referenced the A.M.A., Guides and determined that appellant had monaural hearing loss of 

28.125 percent on the left and 31.875 percent on the right, for a binaural loss of 28.75 percent. 

Dr. Seaman also found that appellant had a zero tinnitus rating. He reiterated that appellant’s 

hearing loss was not due to noise damage. 

Although appellant was exposed to noise while in the performance of his federal 

employment duties, the medical evidence of record is insufficient to establish that he had hearing 

loss causally related to the accepted factors of his federal employment. Thus, the evidence of 

record is insufficient to establish his claim.8

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 

20 C.F.R. §§ 10.605 through 10.607.

 

8 See Mary E. Marshall, 56 ECAB 420, 427 (2005). 
6

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the March 1, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 11, 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