United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.J., Appellant

and

DEPARTMENT OF JUSTICE, DRUG 

ENFORCEMENT ADMINISTRATION,

Tacoma, WA, Employer

__________________________________________

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Docket No. 17-1755

Issued: March 9, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 August 10, 2017 appellant filed a timely appeal from a July 27, 2017 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 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 the claim.3 

 

1 Appellant timely requested oral argument before the Board. By order dated January 17, 2018, the Board 

exercised its discretion and denied the request, finding that the issues could be adequately adjudicated based on the 

evidence of record. Order Denying Request for Oral Argument, Docket No. 17-1755 (issued January 17, 2018). 

2 5 U.S.C. § 8101 et seq. 

3 The record provided the Board includes evidence received after OWCP issued its September 27, 2016 final 

overpayment determination. The Board’s jurisdiction is limited to the evidence that was in the case record at the 

time of OWCP’s final decision. Therefore, the Board is precluded from reviewing this additional evidence for the 

first time on appeal. 20 C.F.R. § 501.2(c)(1).
2

ISSUE

The issue is whether appellant has met his burden of proof to establish left-sided hearing 

loss and tinnitus causally related to an accepted May 26, 2017 employment incident.

FACTUAL HISTORY

On June 8, 2017 appellant, then a 46-year-old criminal investigator and firearms 

instructor, filed a traumatic injury claim (Form CA-1) alleging that hazardous noise during 

employment-related firearms training on May 26, 2017 caused constant ringing in his left ear 

that had not abated after seven days. He submitted a June 9, 2017 report from a physician 

assistant, who noted appellant’s complaint of ringing in his left ear during the previous two 

weeks following firearms practice. 

In a June 26, 2017 development letter, OWCP notified appellant of the type of additional 

evidence needed to establish his claim, including corroboration of his participation in firearms 

training on May 26, 2017, a diagnosis from his attending physician, and medical rationale from 

that physician which supported a causal relationship between the claimed employment incident 

exposure and diagnosed condition. It explained that a physician assistant did not qualify as a 

physician under FECA. OWCP afforded appellant 30 days to submit the requested evidence.

On June 29, 2017 the employing establishment issued an authorization for examination 

and/or treatment (Form CA-16) for appellant’s complaint of “constant ringing in left ear 

following firearms training” on May 26, 2017.

Appellant submitted medical evidence. In a June 29, 2017 report, Dr. Mario Alinea, an 

attending Board-certified family practitioner, noted appellant’s complaints of left-sided hearing 

loss and tinnitus after exposure to firearms noise on a shooting range. Appellant asserted that he 

had no exposure to hazardous noise outside of his occupational exposure to firearms. Dr. Alinea 

obtained an audiogram on June 29, 2017. At the frequency levels of 500, 1,000, 2,000, and 

3,000 hertz in the right ear, appellant exhibited decibel losses of 10, 15, 10, and 29 respectively. 

Testing at the same frequency levels for the left ear revealed decibel losses of 20, 30, 20, and 40 

respectively. Tympanometry was within normal limits bilaterally. Dr. Alinea diagnosed leftsided sensorineural hearing loss with tinnitus. He explained that based on appellant’s history and 

clinical findings, he was “unclear if this hearing loss [was] attributable to firearms noise 

exposure on a more probable than not basis.” Dr. Alinea remarked that, as most occupational 

noise exposures were symmetric, hearing loss was typically bilateral. He referred appellant to an 

audiologist to rule out other causes of unilateral hearing loss such as acoustic neuroma. 

In a June 29, 2017 form report (Form CA-16) Dr. Alinea diagnosed tinnitus and 

sensorineural hearing loss. He checked a box marked “yes” indicating his support for a causal 

relationship between the diagnosed conditions and exposure to firearms noise at work.

Dr. Alinea also completed a duty status report (Form CA-17) on June 29, 2017, in which he 

checked a box marked “yes” in support of causal relationship. 

Also provided was a July 17, 2017 report from an audiologist who noted appellant’s 

complaints and her findings.
3

By decision dated July 27, 2017, OWCP accepted that his participation in the May 26, 

2017 firearms practice occurred as alleged, but denied the claim as the medical evidence of 

record was insufficient to establish causal relationship between that incident and the diagnosed

left-sided sensorineural hearing loss. It noted that Dr. Alinea did not provide medical rationale 

in support of causal relationship between the diagnosed sensorineural hearing loss condition and 

the accepted May 26, 2017 employment incident.

LEGAL PRECEDENT

An employee seeking benefits under FECA4 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 filed within the applicable 

time limitation, that an 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.5 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.6

To determine whether an employee sustained a traumatic injury in the performance of 

duty, OWCP begins with an analysis of whether fact of injury has been established. Generally, 

fact of injury consists of two components that must be considered conjunctively. First, the 

employee must submit sufficient evidence to establish that he actually experienced the 

employment incident that is alleged to have occurred.7 Second, the employee must submit 

sufficient evidence, generally only in the form of medical evidence, to establish that the 

employment incident caused a personal injury.8 

The medical evidence required to establish causal relationship is generally 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 a 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 medial 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.9

 

4 Supra note 2.

5

Joe D. Cameron, 41 ECAB 153 (1989).

6 See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

7 Gary J. Watling, 52 ECAB 278 (2001).

8 Deborah L. Beatty, 54 ECAB 340 (2003).

9 Solomon Polen, 51 ECAB 341 (2000). 
4

ANALYSIS

Appellant claimed that he sustained left-sided tinnitus and sensorineural hearing loss 

caused by May 26, 2017 exposure to hazardous noise during weapons training. OWCP accepted 

that this incident occurred at the time, place, and in the manner alleged, but denied the claim as 

the medical evidence was insufficient to establish causal relationship. 

Appellant submitted medical evidence in support of his claim. In a June 29, 2017 

narrative report, Dr. Alinea, an attending Board-certified family practitioner, opined that it was 

unclear if appellant’s sensorineural hearing loss with tinnitus was due to firearms noise exposure 

as it was asymmetric while most occupational noise exposures produced bilateral hearing loss. 

Subsequently, he changed his opinion in two June 29, 2017 form reports in which he checked a 

box marked “yes” to indicate his support for causal relationship between the diagnosed 

conditions and exposure to firearms noise on May 26, 2017. Given his contradictory opinion in 

his earlier narrative report from his later form report, it is unclear whether Dr. Alinea believes 

that the injury was work related or otherwise. To the extent that he indicated in the affirmative 

in his form report, such a report that addresses causal relationship with a check mark, without 

medical rationale explaining how the employment incident caused or aggravated the alleged 

injury, is of diminished probative value and insufficient to establish causal relationship.10 

Also submitted was a July 17, 2017 report from an audiologist. The Board notes that 

audiologists are not considered physicians under FECA.11 Therefore, a report from an

audiologist is of no probative value on the issue of causal relationship.12 Thus, this report is 

insufficient to meet appellant’s burden of proof. Likewise, appellant also submitted a June 9, 

2017 report from a physician assistant. However, the Board has held that physician assistants are 

not considered physicians as defined under FECA.13 As such, this evidence is also insufficient to 

meet appellant’s burden of proof.

An award of compensation may not be based on surmise, conjecture, speculation, or on 

the employee’s own belief of causal relation.14 Appellant’s honest belief that the May 26, 2017

employment incident caused left-sided tinnitus and hearing loss, however sincerely held, does 

not constitute medical evidence necessary to establish causal relationship.15 As he has failed to 

provide a rationalized medical opinion sufficient to establish causal relationship between the 

 

10 R.U., Docket No. 17-0168 (issued January 9, 2018).

11 Thomas O. Bouis, 57 ECAB 602 (2006). See 5 U.S.C. § 8101(2).

12 Howard P. Lane, 36 ECAB 107 (1984).

13 5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (physician assistants). See also Gloria J.

McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal 

relationship can only be resolved through the submission of probative medical evidence from a physician).

14 D.D., 57 ECAB 734 (2006). 

15 H.H., Docket No. 16-0897 (issued September 21, 2016). 
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claimed injury and the accepted May 26, 2017 employment incident, he has failed to meet his 

burden of proof.

16

 

On appeal, appellant contends that the medical and factual evidence of record established 

a direct causal relationship between his duties as a firearms instructor and the claimed hearing 

loss. As found above, the medical evidence of record does not contain sufficient medical 

rationale supporting causal relationship to meet appellant’s burden of proof.

Appellant may submit additional 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. 

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish left-sided 

hearing loss and tinnitus causally related to an accepted May 26, 2017 employment incident.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’

Compensation Programs dated July 27, 2017 is affirmed.

Issued: March 9, 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

 

16 Supra note 8.