United States Department of Labor

Employees’ Compensation Appeals Board

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D.M., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF INVESTIGATION, Quantico, VA, 

Employer

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Docket No. 17-1832

Issued: March 14, 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 29, 2017 appellant filed a timely appeal from a June 28, 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 this case.

ISSUE

The issue is whether appellant has met his burden of proof to establish more than 21

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

 

1 Appellant indicated on the AB-1 form that he was appealing from an August 23, 2017 OWCP decision. The 

Board notes, however, that that the record does not contain an adverse final decision issued by OWCP on that date.

The only final adverse decision within the Board’s jurisdiction is the June 28, 2017 merit decision. Appellant 

subsequently submitted a corrected AB-1 form, noting that he wished to appeal from the June 28, 2017 merit 

decision. 

2 5 U.S.C. § 8101 et seq.
2

On appeal appellant contends that he has greater hearing loss, noting that Dr. Stephen

Bane, a Board-certified otolaryngologist, and Brittany Komes, a clinical audiologist, determined 

that he had 28 percent hearing loss. He asserts that the medical opinion of OWCP’s district 

medical adviser (DMA) is not entitled to the weight of the medical evidence. 

FACTUAL HISTORY

On November 12, 2015 appellant, then a 66-year-old retired supervisory special agent, 

filed an occupational disease claim (Form CA-2) alleging hearing loss as a result of noise 

exposure at work. He claimed that he was exposed to firearm noise while firing various caliber 

firearms during Special Weapons and Tactics (SWAT) operations. Appellant also claimed that 

he was exposed to helicopter noise and flash bangs during SWAT operations. He first became 

aware of his condition and its relationship to his federal employment on August 30, 2013. 

Appellant related that he did not realize that his alleged work-related injury would worsen over 

the years.

OWCP, by development letter dated November 18, 2015, informed appellant of the 

deficiencies in his claim and requested that he provide additional evidence within 30 days. On 

the same date, it requested that the employing establishment submit information, including the 

job sites where appellant worked, the sources of noise appellant was exposed to, the period of 

exposure, and the decibel and frequency of the exposure. Neither appellant nor the employing 

establishment responded to OWCP’s queries. 

In an April 4, 2016 decision, OWCP denied appellant’s claim for a schedule award. It 

found that he failed to submit evidence to establish that the alleged events occurred as alleged. 

On June 13, 2016 appellant requested reconsideration. He submitted a June 7, 2016 letter 

from Dr. Paul D. Kuster, an audiologist. Dr. Kuster saw appellant on February 19, 2014 for 

numerous auditory communicational problems and constant bilateral tinnitus. Appellant 

reported a history of military noise exposure and in his work duties at the employing 

establishment. Dr. Kuster related that audiometric evaluations performed during his employment 

at the employing establishment clearly showed increasing bilateral high frequency hearing loss, 

which was consistent with traumatic noise exposure. He advised that it was likely appellant’s 

hearing loss and tinnitus were caused by exposure to loud acoustic trauma during his 

employment. Dr. Kuster noted that appellant was currently wearing binaural hearing aids to ease 

communicational difficulties. He recommended hearing protection usage. Appellant also 

submitted audiograms performed by the employing establishment as part of a hearing 

conservation program dated October 21, 1982 through March 4, 2002.

In a decision dated September 13, 2016, OWCP denied modification of its April 4, 2016 

decision. It found that appellant failed to submit the requested factual evidence in response to its 

November 18, 2015 development letter.

On January 2, 2017 appellant again requested reconsideration. In an undated statement, 

he described the history of his exposure to noise from January 3, 1968 through February 22, 

1983, the date he began working at the employing establishment. Appellant advised that he was 

not exposed to any excessive noise until he started working at the employing establishment in 
3

1983. He indicated that he was exposed to extensive noise from various weapons during 16 

weeks of firearms training and qualification on outdoor and indoor ranges. Appellant noted that 

substandard hearing protection was provided. Upon graduation from the employing 

establishment’s training academy, he worked in several field offices as a SWAT team member 

which required extra firearms and assault training and exercises that involved firing weapons and 

throwing flash bang grenades from a helicopter onto a target. Appellant had no hobbies that 

involved exposure to loud noise. He noted that he retired from the employing establishment and

was last exposed to loud noise on October 3, 2003. Appellant had not previously filed a 

workers’ compensation claim. He related that, although he reported August 30, 2013 as the date 

he first became aware of his hearing loss, he had become aware of his condition over the years in 

social situations in loud environments and with his family. Appellant had difficulty hearing 

them talk to him, especially young children. He claimed that his condition progressed to the

point where he wore hearing aids all the time to communicate. Appellant filed his claim after 

talking to his coworkers who had less hearing loss than him and filed successful claims.

By letter dated January 6, 2017, the employing establishment noted that on February 21, 

1983 appellant was appointed as a special agent and attended new agents’ training class from 

February 22 to June 6, 1983. During his training, appellant fired approximately 3,500 rounds of 

ammunition from various types of firearms. From June 7, 1983 until his retirement as a 

supervisory special agent on October 3, 2003 he was afforded firearms training. Appellant fired 

approximately 20,800 rounds of ammunition of various types during this period. As a SWAT 

team member and tactical operator he was exposed to an incalculable amount of ammunition 

rounds that were fired on a daily basis. Appellant was also exposed to noise from flash bang

grenades. The employing establishment noted that special agents attended mandatory firearms 

training eight times a year, with four outdoor sessions held during the summer months and four 

indoor sessions held during the winter months. Actual firing on the range consisted of 

approximately five hours per outdoor session and one hour per indoor session. Typically, 

approximately 200 rounds of ammunition were fired during an outdoor session and 60 rounds 

were fired during an indoor session. In view of this, the employing establishment asserted that 

the annual exposure to firing noise on a range per agent was approximately 24 hours. It noted 

the use of ear guards (headsets) by special agents during firearms training was mandatory. In a 

separate January 6, 2017 letter, the employing establishment noted the jobs appellant held from 

February 22, 1983 through October 3, 2003 and his salaries in these jobs and duties as a special 

agent. It noted that he had returned to work as a federal civilian employee on August 9, 2015. 

The employing establishment also submitted a January 5, 1984 letter and an undated letter noting

outdoor and indoor range noise level test results.

On February 1, 2017 OWCP referred appellant, together with a statement of accepted 

facts (SOAF) and the medical record, to Dr. Bane for an otologic examination and audiological 

testing. In a February 22, 2017 medical report, Dr. Bane noted normal findings on physical 

examination and diagnosed mild-to-moderate hearing loss in the right ear and mild-to-severe 

hearing loss in the left ear. He opined that appellant’s hearing loss was in part, or all, due to 

noise exposure in his federal civil employment. Dr. Bane reasoned that he had significant noise 

exposure. He also reasoned that appellant’s hearing loss was greater than expected with 

presbycusis. Dr. Bane recommended hearing protection, hearing aids, and yearly audiograms. 
4

Britney Komes, an audiologist, performed an audiogram on the date of Dr. Bane’s 

examination. She provided an impression of mild-to-moderate-severe high frequency 

sensorineural hearing loss in the right ear and mild-to-severe sensorineural hearing loss in the left 

ear. Ms. Komes also provided an impression of tinnitus in each ear. She reported testing at the 

frequency levels of 500, 1,000, 2,000, and 3,000 hertz (Hz) which revealed the following: right 

ear 25, 35, 35, and 60 decibels (dBs), respectively; left ear 35, 45, 35, and 45 dBs, respectively. 

Utilizing the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment3(A.M.A., Guides), Ms. Komes calculated that appellant sustained 25.6 

percent monaural hearing impairment in the right ear (20.625 percent + 5 percent for tinnitus) 

and 27.5 percent monaural hearing impairment in the left ear (22.5 percent + 5 percent for 

tinnitus). She calculated a binaural hearing impairment of 28 percent. 

In a supplemental report dated February 28, 2017, Dr. Bane noted a history of appellant’s 

accepted work-related noise exposure and reviewed the SOAF and medical record. He again 

reported normal examination findings and also reviewed Ms. Komes’ February 22, 2017 

audiogram. Dr. Bane agreed that appellant had bilateral high frequency sensorineural loss, mildto-moderately severe in the right ear and mild-to-severe in the left ear. He also agreed that 

appellant had tinnitus. Dr. Bane advised that he had five percent monaural impairment of the 

right ear, five percent monaural impairment of the left ear, and 28 percent binaural hearing 

impairment. In response to questions posed by OWCP, he related that appellant had no recent 

noise exposure and that his hearing was normal in 1982. Dr. Bane reiterated that his 

sensorineural hearing loss was in excess of what would be normally predicated on the basis of 

presbycusis. He also reiterated that appellant’s hearing loss was caused by work-related noise 

exposure, noting that he was exposed to firearms for a significant length of time and intensity. 

Dr. Bane restated his treatment recommendations. 

In a March 7, 2017 decision, OWCP vacated its September 13, 2016 decision and 

accepted that appellant was exposed to noise during his federal employment and a diagnosis of 

bilateral sensorineural hearing loss.

On March 22, 2017 appellant filed a claim for a schedule award (Form CA-7).

On March 31, 2017 OWCP requested that its DMA provide an opinion on impairment. 

In an April 5, 2017 report, the DMA reviewed the SOAF and the medical record. He agreed 

with Ms. Komes and Dr. Bane that appellant had noise-induced sensorineural hearing loss. The 

DMA also agreed that appellant had 20.625 percent monaural hearing loss in the right ear and 

22.5 percent monaural hearing loss in the left ear. He, however, related that he was unable to 

comment on the diagnosis of tinnitus as there was no discussion of tinnitus in the records and its 

impact on appellant’s activities of daily living (ADLs) or completed Tinnitus Handicap 

Inventory or Federal Occupational Health (FOH) Tinnitus form. The DMA believed that

Dr. Bane and Ms. Komes misspoke when they stated that appellant’s right and left ear monaural 

hearing loss was five percent. Instead, he believed that they meant that appellant had tinnitus 

awards of five percent. Utilizing the sixth edition of the A.M.A., Guides the DMA determined 

that appellant had 20.9 percent binaural hearing loss. He recommended yearly audiograms, 

 

3 A.M.A., Guides (6th ed. 2009).
5

hearing protection, and hearing aids. The DMA advised that appellant had reached MMI on 

February 22, 2017, the date of Dr. Bane’s examination. 

In a June 28, 2017 decision, OWCP granted appellant a schedule award for 21 percent 

binaural hearing loss. The period of the award, 42 weeks, ran from February 22 through 

December 12, 2017, a total of 42 weeks.4

LEGAL PRECEDENT

The schedule award provisions of FECA5and its implementing regulations6set 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.7

OWCP evaluates industrial hearing loss in accordance with the standards contained in the 

A.M.A., Guides.

8

 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.9 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.11 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, then added to the greater loss and the total is divided by six to 

 

4 The decision indicated that the award was for 20.9 percent binaural hearing loss. However, number of weeks of 

compensation awarded, 42, indicates that OWCP awarded 21 percent of the maximum of 200 weeks of 

compensation payable for a 100 percent hearing loss (20 percent x 200 weeks). See 5 U.S.C. § 8107(c)(13). See 

also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(b) (January 2010) 

(provides for rounding the calculated percentage of impairment to the nearest whole point).

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404.

7

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

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

9

Id.

10 Id.

11 Id.
6

arrive at the amount of the binaural hearing loss.12 The Board has concurred in OWCP’s 

adoption of this standard for evaluating hearing loss.13

If tinnitus interferes with activities of daily living, 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 DMA for an opinion concerning the nature and percentage in 

accordance with the A.M.A., Guides with the DMA providing rationale for the percentage of 

impairment specified.15

ANALYSIS

OWCP accepted that appellant sustained a binaural hearing loss due to noise exposure at 

work. It developed the claim by referring him to Dr. Bane, a Board-certified otolaryngologist. 

In a February 22, 2017 report, Dr. Bane diagnosed bilateral hearing loss. He opined that the 

hearing loss was due to appellant’s workplace noise exposure and recommended hearing 

protection, hearing aids, and yearly audiograms. Ms. Komes performed an audiogram on behalf 

of Dr. Bane. Based on the audiometric data from her audiogram, Ms. Komes calculated that 

appellant had 20.625 percent monaural hearing impairment in the right ear and 22.5 percent 

monaural hearing impairment in the left ear. She added five percent impairment for tinnitus, 

resulting in a total 25.6 percent monaural hearing impairment in the right ear (20.625 percent + 5 

percent for tinnitus) and 27.5 percent monaural hearing impairment in the left ear (22.5 percent + 

5 percent for tinnitus). Ms. Komes calculated a binaural hearing impairment of 28 percent. In a 

supplemental report dated February 28, 2017, Dr. Bane reviewed Ms. Komes’ February 22, 2017 

audiogram. He agreed that appellant had 28 percent binaural hearing impairment which included 

five percent for tinnitus in each ear. 

On April 5, 2017 OWCP’s DMA reviewed appellant’s medical record, including

Dr. Bane’s February 28, 2017 findings. He concurred in the finding of 20.625 percent monaural 

hearing loss in the right ear and 22.5 percent monaural hearing loss in the left ear based on

Ms. Komes’ audiogram results. The DMA, however, did not credit the finding of Dr. Bane and

Ms. Komes of an additional five percent bilateral hearing loss due to tinnitus and calculated a 

20.9 percent binaural hearing loss. He reasoned that there was no discussion of tinnitus in the 

record and its impact on appellant’s ADLs or completed Tinnitus Handicap Inventory or FOH 

Tinnitus form. The Board notes that, in a June 7, 2016 report, Dr. Kuster, an audiologist, noted a 

history that appellant complained of constant bilateral tinnitus.

 

12 Id.

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

01-1570 (issued August 13, 2002); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

14 A.M.A., Guides 249.

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

Chapter 2.808.6(f) (March 2017).
7

On appeal appellant contends that he has greater impairment based on the opinions of

Dr. Bane and Ms. Komes. The Board notes that the A.M.A., Guides at section 11.2b, page 24916

states that, if the tinnitus interferes with ADLs such as sleep, reading, enjoyment of quiet 

recreation, and emotional well-being, up to five percent may be added to a measurable binaural 

hearing impairment.

The Board finds that this case is not in posture for a decision as clarification is required 

from Dr. Bane as to why he added five percent impairment for tinnitus. Regarding tinnitus, the 

A.M.A., Guides provides that tinnitus in the presence of unilateral or bilateral hearing 

impairment may impair speech discrimination. Therefore, up to five percent may be added for 

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

ADLs.17 Although Dr. Bane and Ms. Komes included five percent impairment for tinnitus in 

appellant’s monaural impairment determinations, neither physician addressed how this impacted 

his ADLs.18

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter. While the claimant has the burden of proof to establish 

entitlement to compensation, OWCP shares the responsibility in the development of the evidence 

to see that justice is done. As OWCP undertook development of the evidence by referring 

appellant to Dr. Bane, it has the duty to secure an appropriate report addressing the relevant 

issues.19 Because Dr. Bane did not explain why he included a rating for tinnitus in his 

determination of appellant’s hearing loss, the case will be remanded to OWCP to request

Dr. Bane to provide a supplemental report explaining his rationale for giving a five percent 

impairment rating for tinnitus. Following this and any necessary further development, OWCP 

shall issue a de novo decision relative to the extent and degree of appellant’s hearing impairment.

CONCLUSION

The Board finds that this case is not in posture for a decision as to whether appellant has 

more than 21 percent binaural (both ears) hearing loss, for which he previously received a 

schedule award.

 

16 A.M.A., Guides 249.

17 David W. Ferrall, 56 ECAB 362 (2005).

18 D.F., Docket No. 15-0246 (issued September 19, 2016); R.O., Docket No. 15-0194 (issued 

September 19, 2016). 

19 Peter C. Belkind, 56 ECAB 580 (2005).
8

ORDER

IT IS HEREBY ORDERED THAT the June 28, 2017 decision of the Office of 

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

consistent with this decision of the Board.

Issued: March 14, 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