United States Department of Labor

Employees’ Compensation Appeals Board

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L.R., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

McAllen, TX, Employer

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Docket No. 18-0823

Issued: December 9, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 9, 2018 appellant filed a timely appeal from a February 1, 2018 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 a ratable hearing 

loss warranting a schedule award.

FACTUAL HISTORY

On August 9, 2017 appellant, then a 43-year-old border patrol agent, filed an occupational 

disease claim (Form CA-2) alleging permanent hearing loss due to noise exposure at work. He 

 

1 5 U.S.C. § 8101 et seq.
2

first became aware of his hearing loss on March 15, 2010 and its relationship to his federal 

employment on February 17, 2016. Appellant did not stop work and continued to be exposed to 

noise. OWCP undertook development of the claim by sending August 18, 2017 letters to appellant 

and the employing establishment requesting information necessary to establish the claim. Both 

parties responded.

Following receipt of the requested information, on October 19, 2017 OWCP referred 

appellant, together with a SOAF,

2

to Dr. John R. Austin, a Board-certified otolaryngologist, for an 

otologic examination and an audiological evaluation. Audiometric testing was performed for

Dr. Austin on November 29, 2017. Testing at the frequency levels of 500, 1,000, 2,000, and 3,000 

Hertz (Hz) revealed the following: right ear 20, 15, 15, and 15 decibels (dBs), respectively; left 

ear 20, 20, 20, and 20 dBs, respectively.

In a December 5, 2017 report, Dr. Austin noted examining appellant on November 29, 

2017 and referenced appellant’s exposure to workplace noise. He noted that appellant complained 

of both hearing loss and tinnitus. Examination of the ears revealed normal canals and drums, 

normal drum motility, left external auditory canal was clear, tympanic membrane intact, wellaerated middle ear, right external auditory canal clear, and tympanic membrane intact. Dr. Austin

diagnosed bilateral sensorineural hearing loss. He noted that appellant’s sensorineural hearing loss 

was at least in part due to his workplace noise exposure. Dr. Austin noted appellant’s hearing loss 

pattern was consistent with noise exposure. He recommended increased use of ear protection. 

Dr. Austin opined that appellant had zero percent monaural hearing loss in the left ear and zero 

percent monaural hearing loss in the right ear.

On January 19, 2018 OWCP accepted appellant’s claim for “bilateral sensorineural

hearing loss” due to work-related noise exposure.

On January 31, 2018 an OWCP district medical adviser (DMA) reviewed Dr. Austin’s 

report and the audiometric test of November 29, 2017 to assess the percentage of hearing loss for 

schedule award purposes. He concluded that, in accordance with the sixth edition of the American

Medical Association, Guides to the Evaluation of Permanent Impairment,

3

(A.M.A., Guides), 

appellant had zero percent monaural hearing loss in each ear and zero percent binaural hearing 

loss. The DMA determined that appellant’s hearing loss was not sufficiently severe to be ratable 

for purposes of a schedule award after applying OWCP’s standards for evaluating hearing loss to 

the results of the November 29, 2017 audiogram. He recommended yearly audiograms, and noise 

protection for his ears.

By decision dated February 1, 2018, OWCP found that appellant had established

employment-related hearing loss, but further found that the hearing loss was not sufficiently severe 

to be considered ratable for purposes of a schedule award.

 

2

In an October 5, 2017 statement of accepted facts (SOAF), OWCP noted appellant’s noise exposure history at 

work. It noted that he continued to be exposed to loud noises on a daily basis.

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

LEGAL PRECEDENT

The schedule award provision of FECA4and its implementing regulation5set 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 the implementing regulation 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 Hz, 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. The remaining amount is multiplied by a factor 

of 1.5 to arrive at the percentage of monaural hearing loss. Binaural loss is determined by 

calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied by 

five, then added to the greater loss and the total is divided by six to arrive at the amount of the 

binaural hearing loss.8 The Board has concurred in OWCP’s adoption of this standard for 

evaluating hearing loss.9

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

should be routed to the DMA for an opinion concerning the nature and percentage of permanent 

impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the 

percentage of permanent impairment specified.10 OWCP may follow the advice of its DMA or 

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

11

 

4 5 U.S.C. § 8107.

5 20 C.F.R. § 10.404 (1999).

6

Id. See also Jacqueline S. Harris, 54 ECAB 139 (2002).

7 A.M.A., Guides 250 (6th ed. 2009).

8

Id.

9 Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No. 

01-1570 (issued August 13, 2002).

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

Chapter 2.808.6(f) (March 2017). 

11 See Ronald J. Pavlik, 33 ECAB 1596 (1982).
4

ANALYSIS

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

loss warranting a schedule award. 

OWCP properly referred appellant to Dr. Austin for an examination relative to his hearing 

loss claim. Dr. Austin’s November 29, 2017 examination found that his hearing loss was due to 

his workplace noise exposure. 

On January 31, 2018 an OWCP DMA reviewed Dr. Austin’s report and found that the 

hearing loss was not ratable for schedule award purposes. He applied the standardized procedures 

to the November 29, 2017 audiogram performed for Dr. Austin to determine if appellant’s hearing 

loss was ratable for schedule award purposes. 

The DMA noted that testing for the right ear at the frequency levels of 500, 1,000, 2,000, 

and 3,000 Hz revealed dB losses of 20, 15, 15, and 15, respectively. These dBs were totaled at 65 

and were divided by 4 to obtain an average hearing loss at those cycles of 16 dBs. The average of 

16 dBs was then reduced by 25 dBs (the first 25 dBs were discounted as discussed above) to equal 

zero percent hearing loss for the right ear. 

The DMA noted that testing for the left ear at the frequency levels of 500, 1,000, 2,000, 

and 3,000 Hz revealed dB losses of 20, 20, 20, and 20, respectively. These dBs were totaled at 80

and were divided by 4 to obtain the average hearing loss at those cycles of 20 dBs. The average 

of 20 dBs was then reduced by 25 dBs (again, the first 25 dBs were discounted) to zero which was 

multiplied by the established factor of 1.5 to compute zero percent hearing loss for the left ear. 

Thus, the DMA concluded that appellant did not have a permanent impairment of his hearing that 

warranted a schedule award. Consequently, he concluded that appellant did not have a ratable 

hearing loss under OWCP’s standardized procedures. 

On appeal appellant indicates that prior to his employment with the Federal Government 

he did not have hearing loss. He noted that he had been exposed to loud noises from boats, 

quarterly firearms, all-terrain vehicles, helicopters, bus engines, and sirens. Appellant asserted 

that the second opinion physician, Dr. Austin, determined that he had hearing loss and he believed 

he was entitled to a schedule award. As found, the evidence of record does not establish that 

appellant has a ratable impairment based on his accepted hearing loss under OWCP’s standardized 

procedures. Although appellant has an employment-related hearing loss, it is not significant 

enough to be ratable for schedule award purposes.12

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. 

 

12 See L.H., Docket No. 18-0696 (issued November 28, 2018); G.G., Docket No. 18-0566 (issued October 2, 2018); 

D.G., Docket No. 16-1486 (issued December 16, 2016).
5

CONCLUSION

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

loss warranting a schedule award. 

ORDER

IT IS HEREBY ORDERED THAT the February 1, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 9, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board