United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.O., Appellant

and

DEPARTMENT OF AGRICULTURE, FOOD 

SAFETY & INSPECTION SERVICE, 

Minneapolis, MN, Employer

__________________________________________

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Docket No. 18-0210

Issued: October 4, 2018

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 7, 2017 appellant, through counsel, filed a timely appeal from an August 24, 

2017 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 causally 

related to factors of his federal employment. 

FACTUAL HISTORY

This case has previously been before the Board.3 The facts contained in the prior Board 

decision are incorporated herein by reference. The relevant facts are as follows. 

On November 15, 2013 appellant, then a 66-year-old retired inspection liaison officer, filed 

an occupational disease claim (Form CA-2) alleging that he sustained hearing loss, stress, and 

hypertension due to his exposure to noise when visiting private slaughter processing facilities 

during the course of his federal employment. He alleged that he first became aware of his claimed 

condition on January 1, 1978 and first realized that it was caused or aggravated by his federal 

employment on December 1, 2011. The employing establishment noted that appellant retired on 

December 31, 2011. 

In a November 18, 2013 supplemental statement, appellant related that he started working 

at the employing establishment in 1968. He noted that from 1968 to 1973 he was assigned to

various high volume slaughter facilities, and all of his inspection work was on the slaughter floor. 

Appellant related that exposure to noise levels above 90 decibels was a regular daily occurrence. 

He further explained that, from 1974 to 1979, he was assigned to various high volume processing 

facilities. The processing equipment involved high volume noise and an inspector was required to 

be in close proximity to this machinery in order to perform proper inspection tasks. Appellant

noted that the noise levels at the processing facilities were the same, if not louder, than the 

slaughter house. He noted that, from 1974 to 1979, he utilized rubber earplugs in an effort to 

reduce the high noise levels. From 1979 to 1982, appellant worked as an employee relations 

specialist. His duties required regular travel to many various slaughter/processing locations. From 

1982 to 1995, appellant worked as a quality control specialist and processing staff officer. He

made regular visits to the same type of industrial locations previously referenced. Appellant noted

that, from 1996 to January 2012, he worked as an inspection liaison officer, and at times he visited 

the same inspection sites. 

In a November 11, 2013 report, Dr. Roy Carlson, a Board-certified otolaryngologist, 

diagnosed sensorineural hearing loss. He noted that appellant’s hearing loss presented about 10 

years ago and may be related to noise exposure. Dr. Carlson indicated that appellant stated that 

the noise exposure was secondary to industrial noise when he was inspecting slaughter houses and 

processing plants, which occurred 25 years ago. He noted that hearing protection was not available 

during most of his exposure. Dr. Carlson opined that appellant’s hearing loss was likely to be at 

least in part due to noise exposure. He also attached an audiogram conducted on that date. 

On January 27, 2014 OWCP denied appellant’s claim, finding that the evidence of record

was insufficient to establish that the claimed events occurred as alleged, as he had not submitted 

evidence sufficient to establish noise exposure. It also noted that he had not explained how his 

 

3 Docket No. 16-0329 (issued September 12, 2016). 
3

alleged hearing loss caused stress and hypertension. Therefore, it found that appellant had not 

been established an injury as defined under FECA. 

On February 10, 2014 appellant requested a hearing before an OWCP hearing 

representative. At the hearing held on June 19, 2014, he testified that, when he worked in the 

slaughter houses, the noise level was above 95 decibels, and he had no hearing protection. 

Appellant worked 10 to 12 hours a day, 6 days a week. He also testified that the noise in the 

processing facilities was over 95 decibels. Appellant noted that at times in processing, he had to 

return to the slaughter house and work there as well. He noted that, from 1996 to 2012, he was an 

inspector liaison officer, and had to work on issues throughout the agencies. At times, appellant

had to visit the processing area or the kill floor. He stated that in 2003 he had his hearing tested 

and was told that he had hearing loss. Appellant noted that the next time he had his hearing

checked was in November 2013, and it was substantially worse. He testified that he had no hobbies 

that would expose him to loud noise. 

In a July 30, 2014 report, Dr. Carlson noted that appellant described a history of extensive 

noise exposure during his 44 years of employment with the employing establishment including 

extensive exposure to noise in various slaughter houses. He diagnosed moderate sensorineural 

hearing loss. Dr. Carlson opined, within a reasonable degree of medical certainty, that appellant’s 

hearing loss was due to his noise exposure given the degree of hearing loss and the absence of 

other significant factors to produce hearing loss. He noted that, during a significant part of the 

interval of noise exposure, hearing protection was not available to him and this contributed to the 

severity of the loss. Dr. Carlson indicated that the loss was permanent and irreversible, and will 

likely slowly worsen due to the ineluctable changes of age as well. 

By decision dated September 5, 2014, the hearing representative vacated OWCP’s 

January 27, 2014 decision as she determined that appellant had established that the employment 

exposure to noise occurred as alleged. The hearing representative further determined that the 

medical evidence of record was sufficient to require further development on the issue of causal 

relationship, and remanded the case with instructions to refer appellant for a second opinion

evaluation.

On November 3, 2014 OWCP referred appellant to Dr. Sean Smullen, a Board-certified 

otolaryngologist, for a second opinion. In a report dated November 18, 2014, Dr. Smullen 

discussed, in detail, appellant’s work history with the employing establishment. He opined that 

appellant did have significant hearing loss. Dr. Smullen noted that appellant provided a history 

that his hearing loss started about 12 to 15 years ago. He related that appellant’s paperwork 

included a hearing test in October 2003, which showed mild hearing loss and excellent speech 

discrimination scores. Dr. Smullen noted that the November 11, 2013 test conducted by

Dr. Carlson showed that appellant’s hearing loss had progressed so that he was clearly now in the 

moderate loss range, and that his word discrimination scores decreased. He opined that appellant 

had better hearing scores at 4,000 Hertz (Hz) than at any other frequency. 

Dr. Smullen opined that appellant had significant hearing loss and that, within a reasonable 

degree of medical certainty, the hearing loss did not result from his noise exposure during his 

federal employment. He noted that appellant did not have the typical dip in the 4,000 Hz range 

that one would expect with noise-induced hearing loss. Dr. Smullen also noted that appellant’s 
4

hearing loss appears to have progressed over the last 15 years, and appellant, by this trajectory, 

would not have had hearing loss in his early days when he was exposed to the most noise. He 

opined that appellant’s hearing loss appeared to be the result of age and genetics. The record also 

contains Dr. Smullen’s handwritten responses to OWCP’s outline for otologic evaluation. In his

response, Dr. Smullen noted that appellant’s workplace noise exposure was sufficient to cause 

hearing loss, but that he did not develop his hearing loss until after his workplace exposure began, 

and after hearing protection was available. He further opined that appellant’s pattern of hearing 

loss was consistent with presbycusis. Dr. Smullen determined that the pattern was not consistent 

with genetic loss and not consistent with noise-induced hearing loss.

In a December 11, 2014 decision, OWCP determined that appellant established noise 

exposure during his federal employment and had also established a diagnosis of hearing loss. 

However, it denied his claim because he had failed to establish causal relationship between his 

hearing loss and the accepted employment exposure.

On December 16, 2014 appellant, through counsel, requested a hearing before an OWCP 

hearing representative. 

During the hearing held on June 24, 2015, counsel argued that appellant only needed to

show that his employment was a contributing factor to his hearing loss. He contended that

Dr. Smullen’s report was inconsistent with his handwritten notes. 

By decision dated September 9, 2015, the hearing representative denied appellant’s claim, 

finding that appellant had not established that his significant hearing loss was causally related to 

his federal employment. She found that the medical report from Dr. Smullen represented the 

weight of the medical evidence.

On December 11, 2015 appellant, through counsel, appealed the September 9, 2015 OWCP 

decision to the Board.

By decision dated September 12, 2016, the Board set aside the September 9, 2015 decision 

and remanded the case to OWCP. The Board directed OWCP to seek clarification from

Dr. Smullen as to whether appellant’s hearing loss was causally related to factors of his federal 

employment. The Board noted that Dr. Smullen’s report was internally inconsistent, and required 

clarification. The Board further noted that an employee was not required to prove that occupational 

factors are the sole cause of his condition.4

On December 21, 2016 OWCP referred appellant back to Dr. Smullen for an updated

second opinion evaluation. 

In a narrative opinion dated January 10, 2017, Dr. Smullen opined that appellant’s hearing 

loss was not related to his federal employment. He noted that appellant had a significant moderate

hearing loss. Dr. Smullen opined that he did not seem to have a noise-induced hearing loss based 

on the pattern of his hearing loss as demonstrated by a lack of high-frequency notch seen in noiseinduced hearing loss. He further noted that appellant’s hearing loss began not long before his first 

 

4

Id.
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audiogram in 2003, and that therefore, his hearing loss would have begun many years after his 

most significant noise exposure and after he started wearing hearing protection. At the same time,

Dr. Smullen completed an outline for otologic evaluation, wherein he noted the appellant’s present 

audiometric findings do not show sensorineural hearing loss that is in excess of what would 

normally be predicated on the basis of presbycusis. He did note that appellant’s workplace 

exposure was of sufficient intensity and duration and that appellant had no significant noise 

exposure outside of work. Dr. Smullen attached a copy of appellant’s January 10, 2017 

audiogram.

By decision dated April 12, 2017, OWCP issued a de novo decision denying appellant’s 

hearing loss claim, finding that the medical evidence of record was insufficient to establish that 

appellant’s hearing loss was causally related to the accepted work events. 

By letter dated April 26, 2017, appellant, through counsel, requested a hearing before an 

OWCP hearing representative. During the hearing held on July 19, 2017, he described the nature 

of his work with the employing establishment. Appellant repeated his prior descriptions of his 

noise exposure during his federal employment. He further discussed his use of hearing protection.

Appellant testified that for the period 1968 to 1973, hearing protection was not supplied. For the 

period 1974 to 1979, he utilized rubber earplugs. Appellant testified that these earplugs did not 

help much, and it was hard to keep them in because of sanitation reasons. During the period from 

1979 to 1982, he did not use earplugs all the time because he was moving around and it was 

difficult to constantly use earplugs. Appellant indicated that, from 2007 to the end of his career, 

he made every effort to utilize hearing protection. He noted that, during this time, he was on the 

slaughter floor less frequently, but that he would still be there for long hours at a time. Appellant

testified that his hearing loss probably began around 1979, and that it was a gradual loss. 

During the hearing, counsel argued that OWCP erred in relying on the opinion of

Dr. Smullen because he made inaccurate statements with regard to appellant’s noise exposure. He

asked the hearing representative to consider appellant’s testimony clarifying his exposure to noise 

and use of hearing protection. Counsel contended that Dr. Carlson’s opinion supported causal 

relationship between appellant’s hearing loss and factors of his federal employment. He asked 

that OWCP’s prior decision be reversed based on the opinion of Dr. Carlson. In the alternative, 

counsel asked that the matter be further developed, and that Dr. Smullen clarify his opinion based 

on the evidence of appellant’s use of hearing protection and exposure to noise. 

By decision dated August 24, 2017, OWCP’s hearing representative affirmed the April 12, 

2017 OWCP decision, finding that the medical evidence of record was insufficient to establish that 

appellant’s noise exposure during his federal employment caused or aggravated his hearing loss. 

LEGAL PRECEDENT

An employee seeking benefits under FECA5 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence, including the fact that the individual is an employee of the United States within the 

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

 

5 Supra note 2.
6

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

employment injury.6

OWCP’s regulations define an occupational disease as a condition produced by the work 

environment over a period longer than a single workday or shift.7 To establish that an injury was 

sustained in the performance of duty in an occupational disease claim, a clamant 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.8

Appellant has the burden of proof to establish by the weight of the reliable, probative, and 

substantial evidence that his hearing loss condition was causally related to noise exposure in his 

federal employment.9 Neither the fact that the condition became apparent during a period of 

employment, nor the belief of the employee that the hearing loss was causally related to noise 

exposure in federal employment is sufficient to establish causal relationship.10

ANALYSIS

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

Appellant’s physician, Dr. Carlson, opined that appellant’s hearing loss was causally 

related to his employment noise exposure given the degree of the hearing loss and the absence of 

other significant factors to produce hearing loss. OWCP referred appellant to Dr. Smullen for a 

second opinion evaluation. The Board noted in its prior decision that Dr. Smullen’s narrative 

reports were inconsistent with his form reports regarding the issue of causal relationship.11 

Specifically, the Board noted that Dr. Smullen concluded in his narrative report that appellant’s 

“hearing loss appears to be the result of age and genetics,” but also concluded in the outline for 

otologic evaluation on the Form CA-1332 that “workplace noise exposure was sufficient to cause 

the loss.” In addition, the Board related that Dr. Smullen noted that appellant’s hearing loss did 

not develop until “well after workplace exposure began.” The Board noted that these latter two 

statements implied that appellant’s hearing loss progressed during federal employment. Due to 

the aforementioned concerns, the Board remanded the case and asked OWCP to refer appellant to

 

6 Kathryn Haggerty, 45 ECAB 383, 388 (1994). 

7 20 C.F.R. § 10.5(q). 

8 T.C., Docket No. 17-0872 (issued October 5, 2017). 

9 T.J., Docket No. 17-1850 (issued February 14, 2018).

10 J.H., Docket No. 17-1796 (issued February 6, 2018). 

11 Supra note 3. 
7

Dr. Smullen to seek clarification with regard to whether appellant’s hearing loss is causally related 

to the factors of his federal employment.12

On remand, OWCP obtained a January 10, 2017 supplemental report by Dr. Smullen. In 

this report, Dr. Smullen opined that appellant’s hearing loss was not related to or caused by his 

federal employment. In his outline for otologic evaluation, he noted that the present audiometric 

data did not show sensorineural loss in excess of what would normally be predicated on the basis 

of presbycusis. Dr. Smullen also noted that workplace exposure was sufficient, but determined 

that appellant’s pattern of hearing loss was not consistent with noise exposure. In his narrative 

report, he stated that appellant did have significant hearing loss, currently in the moderate range. 

Dr. Smullen also noted that appellant had a trajectory of hearing loss that would indicate it began 

not long after his first available audiogram in 2003. He found that because of this, the hearing loss 

would have begun many years after his most significant noise exposure and after he started wearing 

hearing protection. Based on this report, OWCP found in its August 24, 2017 decision that 

appellant had not established that his hearing loss was causally related to his workplace noise 

exposure.

On appeal, counsel argues, inter alia, that Dr. Smullen’s opinion is once again internally 

inconsistent. Dr. Smullen noted that appellant’s hearing loss had progressed through the years, 

that he had significant noise exposure at work, and that this noise exposure was sufficient to cause 

the documented hearing loss. He mentioned the absence of the dip at the 4,000 Hz level that is 

often associated with noise related loss. Dr. Smullen also indicated that appellant’s hearing loss 

began sometime after 2003 after the time of his significant work noise exposure. The Board notes 

that appellant was exposed to noise at the employing establishment for 44 years, i.e., from 1968 

until he left the employing establishment on December 31, 2011. From 1968 until 1973, appellant 

was exposed to loud noise from the slaughter houses with no protection and from 1974 to 1979 he

wore rubber earplugs while he was exposed to this excessive noise. Although his exposure to 

noise after 1979 was more intermittent, he still was exposed to noise in his workplace. 

An employee is not required to prove a significant contribution of factors of employment 

to a condition for the purpose of establishing causal relationship.13 If work-related exposures 

caused, aggravated, or accelerated appellant’s condition, it is compensable.14 

The Board finds that Dr. Smullen’s January 10, 2017 report does not resolve the issue of 

causal relationship. Once OWCP undertakes development of the record, it must do a complete job 

in procuring medical evidence that will resolve the relevant issues in the case.15 As Dr. Smullen 

failed to provide a sufficient response after being asked for clarification, on remand OWCP shall 

schedule a second opinion examination with a new physician.16 The new second opinion physician 

 

12 Id.

13 M.N., Docket No. 17-1729 (issued June 22, 2018). 

14 J.L., Docket No. 17-0782 (issued August 7, 2017). 

15 Richard F. Williams, 55 ECAB 343, 346 (2004).

16 See M.A., Docket No. 17-0331 (issued June 15, 2018).
8

shall address the issue of whether appellant’s hearing loss was causally related to his noise 

exposure during his federal employment. After it has further developed the medical record 

consistent with this directive and as it deems necessary, OWCP shall issue a de novo decision. 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the August 24, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further 

action consistent with this decision. 

Issued: October 4, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board