United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.U., Appellant

and

DEPARTMENT OF THE ARMY, ANNISTON 

ARMY DEPOT, Anniston, AL, Employer

__________________________________________

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Docket No. 18-1480

Issued: February 6, 2019

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, 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 July 25, 2018 appellant, through counsel, filed a timely appeal from a June 27, 2018 

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 hearing loss due to 

factors of his federal employment.

FACTUAL HISTORY

On August 2, 2017 appellant, then a 58-year-old small arms repairer, filed an occupational 

disease claim (Form CA-2) alleging an employment-related hearing loss. He asserted that he had 

been working around noise every day and had not been able to hear and understand his coworkers. 

Appellant indicated that he first became aware of his claimed condition on March 1, 2013 and first 

realized on the same date that it was caused or aggravated by his federal employment. He did not 

stop work.

Appellant submitted an undated document describing his jobs at the Anniston Army Depot 

(ANAD)3 which indicated that he worked as a forklift operator from December 26, 2007 to 

August 17, 2008. The document does not discuss appellant’s exposure to noise while working as 

a forklift operator. Appellant worked as a sandblaster from August 17, 2008 to March 28, 2010 

and was exposed to noise from blasting machines, sanding tables, tumblers, and sanding machines. 

He worked as a small arms repairer from March 28, 2010 to the present and was exposed to noise 

from hammers, impact wrenches, screwdrivers, punches, chisels, grinders, and other tools. The 

document indicates that appellant wore earplugs while working as a sandblaster and small arms 

repairer.4

In another undated document, appellant indicated that he worked as a supply technician in 

the U.S. Army from December 1977 to October 10, 1979 at which time he was exposed to noise 

from M16 rifles and hand grenades. Between 1986 and 2002, he worked for private employers in 

jobs such as nursing assistant, supervisor for a food manufacturing company, truck 

loader/unloader, and sheriff’s deputy.

In a July 12, 2017 letter, Dr. Juan C. Diaz, a Board-certified occupational medicine 

physician and the medical director of an employing establishment health clinic, and Kerri 

Klingsels, the chief audiologist of an employing establishment hospital, indicated that appellant 

was exposed to noise while working at ANAD from 2008 to 2017. The officials reported that an 

audiological evaluation revealed that appellant had a sensorineural hearing loss which, based on 

degree and configuration of the audiogram, was likely caused by a combination of hazardous noise 

exposure and age-related hearing changes. They noted that, because appellant acknowledged 

wearing hearing protection at work when exposed to hazardous noise, it was unlikely that the 

changes in hearing noted on his hearing examinations were caused by employment-related 

hazardous noise exposure while working at ANAD. The officials noted that the noise exposure 

 

3 Appellant’s current employer is Tank Automotive & Armaments Command, also located in Anniston, AL.

4

In a December 8, 2016 document, appellant indicated that he worked as a small arms repairer for nine hours per 

day, five days per week. In a December 12, 2016 document, he noted that he started wearing ear protection at work 

on August 17, 2008, his first day of work as a sandblaster. In an undated document, appellant described the incidents 

in March 2013 which brought about his realization that he had a hearing loss.
3

levels at ANAD, as detailed in an attached document, did not take into consideration the wearing 

of hearing protection.

5

 Therefore, appellant’s noise exposure levels at ANAD would have been at 

least 15 decibels lower than those listed on the document when he wore a hearing protection 

device. The officials noted, “In summary, [appellant’s] noise exposure history and hearing 

protection usage indicate a lack of duration of exposure to high intensity noise for a hearing loss 

to be likely caused by noise from ANAD employment.”

In an August 11, 2017 development letter, OWCP requested that appellant submit 

additional evidence in support of his occupational disease claim. It requested that he complete and 

return an attached questionnaire, which posed various questions regarding the exposures to 

hazardous noise at work, which he believed caused or aggravated his claimed hearing loss. On 

August 11, 2017 OWCP also requested additional information from the employing establishment. 

It afforded appellant and the employing establishment 30 days to respond.

On September 29, 2017 appellant submitted his August 29, 2017 responses to the 

questionnaire. He noted that he still was exposed to hazardous noise at work and advised that he 

did not have hobbies which involved noise exposure.

Audiograms obtained on December 11, 2007, July 11, 2014, January 7 and September 16, 

2015, and October 3, 2016 were added to the record. The audiograms were obtained by 

audiologists and were not cosigned by physicians.6 The audiologists for the July 11, 2014 and 

October 3, 2016 audiograms noted that the results showed a high-frequency sensorineural hearing 

loss in both ears.

In September 2017, OWCP referred appellant for a second opinion examination to

Dr. Howard Goldberg, a Board-certified otolaryngologist. It requested that Dr. Goldberg conduct 

a comprehensive audiologic evaluation and provide an opinion regarding whether appellant had a 

hearing loss due to exposure to hazardous noise at work. OWCP provided Dr. Goldberg with a 

statement of accepted facts (SOAF), which provided a detailed discussion of the hazardous noise 

to which appellant was exposed while working for ANAD as a sandblaster and small arms repairer.

In an October 17, 2017 report, Dr. Goldberg discussed appellant’s factual and medical 

history, including the course of his reported hearing problems and the history of audiogram testing 

(including the testing from 2007). He reported the findings of the audiologic evaluation he 

conducted on October 17, 2017, noting that the examination of appellant’s bilateral canals and 

drums was normal (including drum mobility) and that bilateral basic fork testing was normal. 

Dr. Goldberg noted that audiogram testing for the left ear at the frequency levels of 500, 1,000, 

2,000, and 3,000 cycles per second revealed decibel losses of 20, 30, 30, and 40 respectively. 

Audiogram testing for the right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles 

per second revealed decibel losses of 25, 30, 30, and 35 respectively. Dr. Goldberg diagnosed 

mild high-frequency sensorineural hearing loss in both ears, with normal speech recognition 

threshold, and tinnitus in both ears. He noted that mild bilateral hearing loss was present at the 

 

5 The record contains a document entitled, “Summary of employee’s 8-hour time weighted average noise.”

6 The December 11, 2007, January 7, and September 16, 2015 audiograms were obtained at an ANAD health 

facility and the July 11, 2014 and October 3, 2016 audiograms were obtained at a private facility.
4

start of appellant’s federal employment and indicated that appellant wore hearing protection during 

such employment. Dr. Goldberg opined that appellant’s current mild hearing loss was consistent 

with age-related loss and checked a box indicating that his hearing loss was not due, in part or all, 

to noise exposure in his federal employment.

7

By decision dated October 24, 2017, OWCP denied appellant’s claim for employmentrelated hearing loss. It noted that Dr. Goldberg determined in his October 17, 2017 report that 

appellant had a mild hearing loss which was due to age-related changes rather than exposure to 

hazardous noise in the workplace. OWCP indicated that appellant had not submitted medical 

evidence establishing that he had hearing loss due to the accepted employment-related noise 

exposure.

On November 29, 2017 appellant requested a telephonic hearing with a representative of 

OWCP’s Branch of Hearings and Review.8

During the hearing, held on April 16, 2018, appellant testified regarding his exposure to 

hazardous noise at work and the progression of his hearing loss. He noted that he generally wore 

earplugs while operating noisy tools at work, but advised that he could hear some noise while 

doing so. Counsel argued that Dr. Goldberg’s opinion that appellant did not have employmentrelated hearing loss was not supported by adequate medical rationale.9

By decision dated June 27, 2018, OWCP’s hearing representative affirmed OWCP’s 

October 24, 2017 decision. She indicated that the weight of medical evidence with respect to the 

cause of appellant’s hearing loss continued to rest with the well-rationalized opinion of

Dr. Goldberg.

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 of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA, that the injury was sustained while 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.10 These are the essential elements of each and every 

compensation claim regardless of whether the claim is predicated on a traumatic injury or an 

occupational disease.11

 

7 Dr. Goldberg recommended that appellant continue using hearing aids.

8 Counsel later submitted a March 27, 2018 letter in which he argued that Dr. Goldberg’s opinion was equivocal 

and lacked medical rationalize in support of its opinion that appellant’s hearing loss was due to nonwork factors.

9 After the hearing, counsel submitted a statement in which argued that the case should be remanded to OWCP in 

order to obtain a clarifying report from Dr. Goldberg.

 

10 5 U.S.C. § 8101(1); B.B., 59 ECAB 234 (2007); Elaine Pendleton, 40 ECAB 1143 (1989).

11 K.L., Docket No. 18-1029 (issued January 9, 2019); S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 
5

To establish fact of injury, an employee must submit evidence sufficient to establish that 

he or she experienced a specific event, incident, or exposure occurring at the time, place, and in 

the manner alleged.12 An employee must also establish that such event, incident, or exposure 

caused an injury.13 OWCP’s regulations define the term “[o]ccupational disease or illness” as a 

condition produced by the work environment over a period longer than a single workday or shift.14 

To establish that an injury was sustained in the performance of duty in an occupational disease 

claim, an employee 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 diagnosed condition is 

causally related to the employment factors identified by the employee.15

To establish causal relationship between the condition, as well as any attendant disability 

claimed and the employment event or incident, the employee must submit rationalized medical 

opinion evidence supporting such causal relationship.16 Causal relationship is a medical issue, and 

the medical evidence required to establish causal relationship is rationalized medical evidence.17 

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 employee.18 Neither the mere fact that a disease or condition 

manifests itself during a period of employment, nor the belief that the disease or condition was 

caused or aggravated by employment factors or incidents is sufficient to establish causal 

relationship.19

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish hearing loss due 

to factors of his federal employment.

 

153 (1989).

 

12 J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007). 

 

13 Id.

 

14 20 C.F.R. § 10.5(q); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, 

Chapter 2.800.2b (June 2011).

 

15 D.H., Docket No. 15-1876 (issued January 29, 2016); D.I., 59 ECAB 158 (2007); Victor J. Woodhams, 41 ECAB 

345 (1989).

16 J.L., Docket No. 18-0698 (issued November 5, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id.

17 L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

18 L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

19 Dennis M. Mascarenas, 49 ECAB 215 (1997).
6

The weight of the medical opinion evidence is represented by the thorough, wellrationalized opinion of Dr. Goldberg, OWCP’s referral physician. The October 17, 2017 report of

Dr. Goldberg shows that appellant did not sustain a hearing loss due to factors of his federal 

employment.

In his October 17, 2017 report, Dr. Goldberg detailed appellant’s factual and medical 

history, and reported the findings of the audiologic evaluation he conducted on that date. He noted 

that audiogram testing for the left ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles 

per second revealed decibel losses of 20, 30, 30, and 40 respectively. Audiogram testing for the 

right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second revealed decibel 

losses of 25, 30, 30, and 35 respectively. Dr. Goldberg diagnosed mild high-frequency 

sensorineural hearing loss in both ears, with normal speech recognition threshold, and tinnitus in 

both ears. He noted that mild bilateral hearing loss was present at the start of appellant’s federal 

employment and indicated that appellant wore hearing protection during such employment. 

Dr. Goldberg opined that appellant’s current mild hearing loss was consistent with age-related 

loss. He concluded that appellant’s hearing loss was not due, in part or all, to noise exposure in 

his federal employment.

The Board has carefully reviewed the opinion of Dr. Goldberg and notes that it has 

reliability, probative value, and convincing quality with respect to its conclusions regarding the 

relevant issue of the present case. Dr. Goldberg provided a thorough factual and medical history 

and accurately summarized the relevant medical evidence.20 He provided medical rationale for his 

opinion by explaining that the nature of appellant’s hearing loss did not support an employmentrelated cause for the loss, but rather showed a naturally progressing hearing loss due to age. 

Appellant has, therefore, not met his burden of proof to establish hearing loss due to factors of his 

federal employment because he has not submitted rationalized medical evidence establishing 

causal relationship between a diagnosed hearing loss and the accepted hazardous noise exposure.21

On appeal counsel argues that Dr. Goldberg’s opinion that appellant did not have 

employment-related hearing loss was not supported by adequate medical rationale. However, the 

Board has explained why his opinion contains such rationale. The Board also notes that the record 

contains other evidence which shows that appellant did not have an employment-related hearing 

loss.

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(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

 

20 See J.W., Docket No. 18-0670 (issued September 11, 2018) (finding that a probative medical opinion must be 

based on a complete factual and medical background of the employee).

21 See supra notes 15 and 16. The Board notes that appellant also failed to show that his bilateral tinnitus was 

employment related.
7

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish hearing loss due 

to factors of his federal employment.

ORDER

IT IS HEREBY ORDERED THAT the June 27, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 6, 2019

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