United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.L., Appellant

and

DEPARTMENT OF ENERGY, WESTERN 

POWER ADMINISTRATION, Loveland, CO, 

Employer

__________________________________________

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Docket No. 17-0355

Issued: June 27, 2018

Appearances: Case Submitted on the Record

John S. Evangelesti, Esq., for the appellant1

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 December 5, 2016 appellant, through counsel, filed a timely appeal from a June 16, 

2016 merit 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 over the merits of this 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

ISSUE

The issue is whether appellant has met his burden of proof to establish greater than 12 

percent binaural hearing loss, for which he previously received a schedule award. 

FACTUAL HISTORY

On March 11, 2014 appellant, then a 54-year-old electrician, 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 first became aware of his condition and its relation to his federal 

employment on January 6, 2014. 

The record reflects that appellant worked with heavy equipment, power tools, gas operated 

tools, generators, pumps, transformers, breakers, helicopters, turbines running, air handling 

equipment, vehicles, and hand tools for 2 to 10 hours a day. Earmuffs and earplugs were provided. 

The employing establishment did not provide noise levels. 

On May 27, 2014 OWCP referred appellant for a second opinion, along with a statement 

of accepted facts (SOAF), a set of questions, and the medical record to Dr. Mark C. Griffin, a 

Board-certified otolaryngologist. 

In a report dated June 17, 2014, Dr. Griffin described appellant’s history of injury and 

treatment, and diagnosed noise-induced bilateral sensorineural hearing loss, which was due to the 

noise exposure encountered at work. He noted that there was no subjective tinnitus upon physical 

examination. Dr. Griffin recommended hearing aid amplification for use whenever appellant is 

not around loud noise. He explained that appellant’s presbycusis was more of a slanting hearing 

loss and there was a rapid drop in the higher frequencies around 4,000 hertz, which was typical 

with a history of severe noise exposure. Audiometric test results included audiometric testing 

performed by a certified audiologist on June 17, 2014. Dr. Griffin found that appellant sustained 

hearing thresholds of the right ear at 500, 1,000, 2,000, and 3,000 cycles per second of 35, 45, 40,

and 55 decibels (dB), respectively and to the left ear at 500, 1,000, 2,000, and 3,000 cycles per 

second of 40, 45, 35, and 75 dBs, respectively. The audiogram did reveal tinnitus.

On September 24, 2014 OWCP’s medical adviser utilized the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)

3

and 

noted that additional information was needed with regard to when the audiometer used on June 17, 

2014 was calibrated. The medical adviser also explained that tinnitus was mentioned on the 

audiogram, but it was not characterized by the second opinion physician. 

On November 17, 2014 OWCP accepted appellant’s claim for binaural noise-induced 

hearing loss due to his employment-related hearing exposure. 

In a November 19, 2014 report, OWCP’s medical adviser noted that the second opinion 

physician found that appellant had no “subjective Tinnitus” despite the audiologist indicating that 

tinnitus was present. The medical adviser recommended that OWCP obtain additional information 

 

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

from the second opinion physician regarding this issue as there was no follow up note. He 

explained that there was no ratable hearing impairment for this issue with the available 

information. 

In a letter dated December 8, 2014, counsel noted that OWCP’s medical adviser 

recommended that OWCP obtain additional information from the second opinion physician 

regarding tinnitus and whether it permanently impacted appellant’s activities of daily living 

(ADL). He noted that appellant was eligible for an impairment rating of up to five percent for 

tinnitus pursuant to the A.M.A., Guides.

4

 

In a letter dated January 14, 2015, counsel provided results of new audiometric testing

dated December 1, 2014 and noted that it showed that appellant’s hearing loss had worsened. 

By letter dated January 7, 2015, OWCP notified counsel that additional information had 

been requested from the second opinion physician and that they were awaiting the information. 

On June 23, 2015 counsel requested a status update on the claim file.

On June 19, 2015 OWCP referred appellant, together with a SOAF, to Dr. Gregory 

Schackel, a Board-certified otolaryngologist, for a second opinion evaluation regarding whether 

appellant was eligible for an impairment rating due to his work-related tinnitus, based upon 

whether it affected his ADLs. 

In a July 16, 2015 report, Dr. Schackel noted appellant’s history of injury and treatment. 

He advised that appellant presented for a second opinion with regard to tinnitus. Dr. Schackel 

explained that appellant had a change in hearing over the past two years and had constant tinnitus 

bilaterally, sometimes louder on the right. He indicated that appellant had tinnitus that 

occasionally awakened him from his sleep and could keep him from falling back to sleep. 

Dr. Schackel diagnosed mild-to-moderate severe sensorineural hearing loss, with mild asymmetry 

likely two degrees to noise exposure and tinnitus, of two to one degrees. The audiologist advised 

that verification of audiometric testing was completed on August 26, 2014. Dr. Schackel also 

submitted results of audiometric testing performed by a certified audiologist on July 16, 2015 who 

found that appellant sustained hearing thresholds of the right ear at 500, 1,000, 2,000, and 3,000 

cycles per second of 25, 35, 25, and 40 dBs, respectively and to the left ear at 500, 1,000, 2,000,

and 3,000 cycles per second of 25, 35, 35, and 70 dBs, respectively. 

In a January 3, 2016 report, OWCP’s medical adviser noted appellant’s history of injury 

and treatment. He utilized the A.M.A., Guides for monaural and binaural hearing loss at Table 

11-1 and Table 11-2.5 The medical adviser noted that Dr. Schackel utilized the July 16, 2015 

audiogram results and determined that appellant was qualified for left monaural hearing 

impairment of 24.2 percent and right monaural hearing impairment of 9.4 percent. OWCP’s

medical adviser computed the binaural hearing impairment of 11.9 percent. He recommended 

hearing aids for both ears. Regarding tinnitus, the medical adviser noted that Dr. Schackel 

 

4

Id. at page 249.

5 A.M.A., Guides 250, 252.
4

indicated that appellant’s tinnitus occasionally awakened him from his sleep and kept him from 

falling back to sleep. He concluded that, since appellant did not have a permanent impact on his 

ADL, there was no impairment for tinnitus. 

On March 2, 2016 appellant filed a claim for a schedule award (Form CA-7). 

On March 21, 2016 OWCP granted appellant a schedule award for 12 percent permanent 

binaural hearing loss. The award covered a period of 24 weeks from July 17 to

December 31, 2015.6

On March 31, 2016 counsel requested reconsideration. He noted that the January 3, 2016 

report from OWCP’s medical adviser included a discussion of tinnitus. Counsel indicated that 

OWCP’s medical adviser noted that Dr. Schackel related that appellant had tinnitus that 

occasionally woke appellant from his sleep and could keep him from falling back to sleep and 

concluded that there was no permanent impact on his ADL. However, he explained that the 

A.M.A., Guides provided a rating of up to five percent for a measurable binaural hearing 

impairment “if the tinnitus interferes with ADL, including sleep.” Counsel referred to Chapter 

11.2b of the A.M.A., Guides.

On April 11, 2016 OWCP requested clarification from OWCP’s medical adviser.

On April 15, 2016 an OWCP medical adviser reviewed the otologic and audiological

testing performed on appellant by Dr. Schackel. He repeated his opinion that clarification was 

needed from the second opinion physician regarding the issue of tinnitus. The medical adviser 

repeated “All I can do is reiterate what I have already [stated] in my January 3, 2016 report.” He

determined that maximum medical improvement was achieved on July 16, 2015. The medical 

adviser utilized the A.M.A., Guides and again determined that appellant had 11.9 percent 

permanent binaural hearing loss. He also recommended authorizing hearing aids. 

On June 7, 2016 OWCP expanded the acceptance of the claim to include bilateral tinnitus.

In a June 12, 2016 report, an OWCP medical adviser reiterated that appellant’s binaural 

hearing loss was 11.9 percent. He also explained that the second opinion physician found that 

appellant did not have subjective tinnitus. Regarding occasionally being awakened in appellant’s 

sleep by tinnitus and being kept from falling back to sleep, the medical adviser indicated that, since 

appellant did not have a permanent impact on his ADLs, there was no additional permanent 

impairment for tinnitus. He recommended hearing aids in both ears. 

By decision dated June 16, 2016, OWCP denied modification of its prior decision, finding 

that the evidence of record was insufficient to establish that appellant sustained additional

permanent impairment due to tinnitus. 

 

6 OWCP rounded up from 11.9 percent.
5

LEGAL PRECEDENT

The schedule award provisions of FECA7and its implementing regulations8set 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 regulations as the appropriate standard for 

evaluating schedule losses.9

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 dBs is deducted because, 

as the A.M.A., Guides points out, losses below 25 dBs result in no impairment in the ability to 

hear everyday speech under everyday conditions.10 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.11 

The policy of OWCP is to round the calculated percentage of impairment to the nearest 

whole number.12

Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease, but rather a 

symptom that may be the result of disease or injury.13 The A.M.A., Guides state that if tinnitus 

interferes with ADLs, including sleep, reading (and other tasks requiring concentration), 

enjoyment of quiet recreation, and emotional well-being, up to five percent may be added to a 

measurable binaural hearing impairment.14

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 

 

7 5 U.S.C. § 8107.

8 20 C.F.R. § 10.404.

9

Id. 

10 See A.M.A., Guides 250.

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

12 J.P., Docket No. 08-0832 (issued November 13, 2008).

13 See A.M.A., Guides 249.

14 Id. See also R.H., Docket No. 10-2139 (issued July 13, 2011); Robert E. Cullison, 55 ECAB 570 (2004).
6

rationale for the percentage of impairment specified.15 It may follow the advice of its medical 

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

16

ANALYSIS

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

OWCP accepted appellant’s claim for binaural hearing loss and tinnitus and referred him, 

together with a SOAF, to Dr. Griffin, a Board-certified otolaryngologist, for a second opinion. 

Dr. Griffin diagnosed noise-induced hearing loss and sensorineural hearing loss, and bilateral. He 

provided a June 17, 2014 report from an audiologist, which mentioned tinnitus. However,

Dr. Griffin did not provide additional impairment for tinnitus.

OWCP referred the medical evidence to an OWCP medical adviser for a rating of 

permanent impairment in accordance with the A.M.A., Guides.

17

On September 24, 2014 OWCP’s medical adviser explained that tinnitus was mentioned 

on the audiogram. However, it was not characterized by the second opinion physician. 

Subsequently, in a November 19, 2014 report, the medical adviser noted that the second opinion 

physician found that appellant had no “subjective [t]innitus,” despite the audiologist indicating 

that tinnitus was present. He recommended that OWCP obtain additional information from the 

second opinion physician regarding this issue, however, there was no follow up note. The medical 

adviser explained that there was no ratable impairment for this issue with the available information. 

On June 19, 2015 OWCP referred appellant, together with a SOAF, to Dr. Schackel, a 

Board-certified otolaryngologist, for a second opinion evaluation regarding whether appellant was 

eligible for an impairment rating due to his work-related tinnitus, based upon whether it affected 

his ADL. 

In a July 16, 2015 report, Dr. Schackel advised that appellant presented for a second 

opinion with regard to tinnitus. He explained that appellant had a change in hearing over the past 

two years and had constant tinnitus bilaterally, sometimes louder on the right. Dr. Schackel 

indicated that appellant had tinnitus that occasionally awakened him from his sleep and could keep 

him from falling back to sleep. He diagnosed mild-to-moderate severe sensorineural hearing loss, 

with mild asymmetry likely two degrees to noise exposure and tinnitus, of two to one degrees. The 

audiologist advised that verification of audiometric testing was completed on August 26, 2014. 

Dr. Schackel also submitted results of audiometric testing performed by a certified audiologist on 

July 16, 2015, who found that appellant sustained hearing thresholds of the right ear at 500, 1,000, 

2,000, and 3,000 cycles per second of 25, 35, 25, and 40 dBs, respectively and to the left ear at 

500, 1,000, 2,000, and 3,000 cycles per second of 25, 35, 35, and 70 dBs, respectively. 

 

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

Chapter 2.808.6(f) (February 2013).

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

17 See Hildred I. Lloyd, 42 ECAB 944 (1991).
7

In a January 3, 2016 report, OWCP’s medical adviser noted appellant’s history of injury 

and treatment. He utilized the A.M.A., Guides for monaural and binaural hearing loss at Table 

11-1 and Table 11-2.18 After application of the A.M.A., Guides the medical adviser found 11.9 

percent binaural hearing loss.

19

 There is no dispute as to the extent of appellant’s binaural hearing 

loss. Rather, he disputes that no rating was given for the accepted bilateral tinnitus condition. 

Regarding tinnitus, the A.M.A., Guides allows for compensation of up to five percent for 

tinnitus in the presence of measurable hearing loss if the tinnitus impacts the ability to perform 

ADL.

20

 In this case, an OWCP medical adviser recommended further development based upon 

the first second opinion report from Dr. Griffin. After OWCP initially developed the case, a new 

second opinion was obtained from Dr. Schackel. He indicated that appellant’s tinnitus 

occasionally awakened him from his sleep and kept him from falling back to sleep. Dr. Schackel,

however, did not provide a reasoned opinion as to the extent of appellant’s permanent impairment, 

if any, related to his accepted bilateral tinnitus condition. The medical adviser likewise failed to 

provide a permanent impairment rating regarding the tinnitus condition despite the medical finding 

that appellant’s ADL’s were impacted by the condition.

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. 

While appellant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence to see that justice is done.21 

The Board finds that further development is required to determine the award or extent of

tinnitus.22 Accordingly, the Board will remand the case to OWCP to obtain a supplemental opinion 

from Dr. Schackel as to whether appellant is entitled to an increased schedule award due to tinnitus. 

Following this and any other further development deemed necessary, OWCP shall issue a de novo 

decision on appellant’s schedule award claim. 

CONCLUSION

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

 

18 A.M.A., Guides 250, 252.

19 See supra note 11.

20 See Robert E. Cullison, 55 ECAB 570 (2004); R.H., Docket No. 10-2139 (issued July 13, 2011).

21 Phillip L. Barnes, 55 ECAB 426 (2004).

22 See J.F., Docket No. 16-1225 (issued November 21, 2016).
8

ORDER

IT IS HEREBY ORDERED THAT the June 16, 2016 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part. The case is remanded for further 

development consistent with this decision. 

Issued: June 27, 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