United States Department of Labor

Employees’ Compensation Appeals Board

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R.M., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL AIR 

WARFARE CENTER AIRCRAFT DIVISION, 

Lakehurst, NJ, Employer

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Docket No. 18-1801

Issued: March 25, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 27, 2018 appellant filed a timely appeal from a May 22, 2018 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on 

appeal. Id.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish binaural hearing 

loss causally related to the accepted factors of his federal employment.

FACTUAL HISTORY

On November 27, 2017 appellant, then a 67-year-old retired equipment operator, filed an 

occupational disease claim (Form CA-2) alleging that his binaural hearing loss was caused by 

factors of his federal employment.3 He indicated that he first became aware of his condition and 

its relationship to factors of his federal employment on August 3, 2000. Appellant explained that 

his delay in filing his claim was because he recently reached a point where his hearing loss was 

interfering with life functions. He noted that it was hard to hear and distinguish words. The 

employing establishment controverted the claim.

OWCP subsequently received evidence that included appellant’s employment history. 

Appellant had been exposed to loud noise while employed as an equipment specialist for several 

employing establishments. He worked at the Naval Air Station field office in Alameda, California

from December 1981 to April 1985, the Naval Air Warfare Center field office and ship repair 

facility in Yokosuka, Japan from April 1985 to March 1988, and the Puget Sound Naval Shipyard 

from March 1988 to December 2000.

OWCP also received the results of various audiograms administered between August 15, 

1978 and August 3, 2000 by the employing establishment for its hearing conservation program. 

Employing establishment health unit consultation sheets dated January 30 and March 27, 1990 

indicated that audiograms performed on January 22 and March 22, 1990 revealed hearing loss.

In a form entitled checklist for filing federal occupational hearing loss claim dated 

August 2, 2017, appellant indicated that he had a history of tinnitus. He noted that the only hobby 

he had which exposed him to loud noise was repairing small equipment. Appellant was no longer 

exposed to hazardous noise at work as of December 1, 2000 when he retired. He had not 

previously filed a claim for workers’ compensation benefits for his current condition or any other 

condition affecting his ears or hearing. Appellant explained that his last hearing test at the Puget 

Sound Naval Shipyard indicated hearing loss from occupational noise. He related that the abovenoted employing establishments provided safety devices to protect against noise exposure which 

he utilized.

By development letter dated December 7, 2017, OWCP advised appellant of the 

deficiencies in his claim. It informed him that he would be scheduled for a second opinion 

examination for a medical diagnosis and an opinion explaining whether his employment 

activities/exposure caused, aggravated, or contributed to his diagnosed condition. Appellant was 

afforded 30 days to respond.

 

3 The record reflects that appellant retired on December 1, 2000.
3

In a separate development letter, also dated December 7, 2017, OWCP requested 

information from the employing establishment, including the location of appellant’s job sites 

where the alleged exposure occurred, sources of exposure to noise and machinery, the decibel and 

frequency level (to include a noise survey report for each job site) and period of exposure, the 

types of ear protection and noise attenuation in decibels if known, and copies of all medical 

examinations pertaining to hearing or ear problems, including preemployment examination, and 

all audiograms. It also requested employment data and the date of last exposure to hazardous noise 

and the pay rate in effect on that date. The employing establishment was afforded 30 days to 

respond. No response was received.

By letter dated March 20, 2018, OWCP referred appellant, together with a statement of 

accepted facts (SOAF) and the medical record, to Dr. Edward L. Treyve, a Board-certified 

otolaryngologist, for a second opinion to determine whether he had sustained employment-related 

hearing loss.

An April 19, 2018 audiogram performed by M. Rachael Shannon, an audiologist, and 

signed by Dr. Treyve found that appellant had mild-to-severe sensorineural hearing loss, left 

greater than the right, and very poor speech discrimination. He was also found to have 39.38 

percent binaural hearing loss and would benefit from binaural hearing aids.

Dr. Treyve, in an April 19, 2018 report, reviewed the SOAF and medical record, noted 

appellant’s hearing loss and employment history, and discussed findings on physical examination. 

He diagnosed asymmetric binaural sensorineural hearing loss. Dr. Treyve found that appellant’s 

described workplace exposure was of sufficient intensity and duration to have “potentially caused”

the hearing loss. However, he opined that the binaural sensorineural hearing loss was not due to 

his occupational noise exposure. Dr. Treyve opined that the diagnosed hearing loss was due to 

undiagnosed degenerative causes. He explained that there was a symmetric history of noise 

exposure over the years with no hearing loss manifested in the right ear until 2000 and in the left 

ear until 1990. Dr. Treyve maintained that this was very atypical for occupational noise exposure 

occurring only late in a work career. He also maintained that the asymmetry, without obvious 

cause, was atypical. Dr. Treyve recommended binaural hearing aids and indicated that this need 

for hearing aids was more likely than not unrelated to his occupational noise exposure.

By decision dated May 22, 2018, OWCP denied appellant’s hearing loss claim finding that 

the evidence of record was insufficient to establish that his hearing loss was causally related to the 

accepted work event(s). It determined that the April 19, 2018 report from Dr. Treyve represented 

the weight of the medical evidence.

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 

 

4 Supra note 1.
4

disability and/or specific condition for which compensation is claimed are 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 establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

presence or existence of the disease or condition for which compensation is claimed;7(2) a factual 

statement identifying employment factors alleged to have caused or contributed to the presence or 

occurrence of the disease or condition;8and (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.9 

The claimant has the burden of proof to establish by the weight of the reliable, probative, 

and substantial evidence that his or her hearing loss was causally related to noise exposure in his

or her federal employment.10 Neither the condition becoming 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.11

Causal relationship is a medical issue and the evidence generally required to establish 

causal relationship is rationalized medical opinion evidence.12 Rationalized medical opinion 

evidence is medical evidence which includes a physician’s reasoned opinion on whether there is 

causal relationship between the claimant’s diagnosed condition and the compensable 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 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 claimant.13 The weight of medical evidence is determined 

 

 

5 See C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

 

6 See S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 

153 (1989).

7 See Michael R. Shaffer, 55 ECAB 386 (2004).

8 See Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

9 See Beverly A. Spencer, 55 ECAB 501 (2004).

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

11 See D.S., Docket No. 16-0903 (issued September 8, 2016); Lourdes Harris, 45 ECAB 545, 547 (1994); John W. 

Butler, 39 ECAB 852 (1988).

12 See Elizabeth H. Kramm, 57 ECAB 117, 123 (2005).

13 See Leslie C. Moore, 52 ECAB 132, 134 (2000).
5

by its reliability, its probative value, its convincing quality, the care of analysis manifested, and 

the medical rationale express in support of the physician’s opinion.14

ANALYSIS

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

loss causally related to the accepted factors of his federal employment.

Appellant submitted the employing establishment’s audiograms dated August 15, 1978 and 

August 3, 2000. As these audiograms lack proper certification of calibration, speech testing, and 

bone conduction scores and were not prepared or certified as accurate by a physician as defined 

under FECA, they do not constitute probative medical evidence.15

OWCP properly referred appellant for an audiological and otologic evaluation by

Dr. Treyve. On April 19, 2018 Dr. Treyve examined appellant and reviewed the medical record, 

including the audiograms conducted during his federal employment and the audiogram performed 

by Ms. Shannon that day. He diagnosed binaural sensorineural hearing loss, but concluded that 

this hearing loss was not due to work-related noise exposure. Rather, Dr. Treyve opined that 

appellant’s hearing loss was due to undiagnosed degenerative causes. He reasoned that there was 

a symmetric history of noise exposure over the years with no hearing loss manifested in the right 

ear until 2000 and in the left ear until 1990. Dr. Treyve noted that this was very atypical for 

occupational noise exposure occurring only late in a work career. He maintained that the 

asymmetry, without obvious cause, was atypical. Dr. Treyve recommended binaural hearing aids, 

but indicated that this was more likely than not unrelated to his occupational noise exposure.

The Board finds that Dr. Treyve’s April 19, 2018 report represents the weight of the 

medical evidence and establishes that appellant’s binaural hearing loss was not due to exposure to 

noise in the workplace.

16

 Dr. Treyve’s opinion is based on a proper factual and medical history as 

he reviewed current and previous audiometric test results and related his findings on examination 

and testing in support of his opinion that appellant’s hearing loss was not due to the noise in his 

federal employment.17

On appeal appellant disagrees with the opinion of Dr. Treyve that his hearing loss was 

atypical for occupational noise exposure. He contends that an August 3, 2000 audiogram clearly 

shows noise-induced hearing loss. As noted above, however, Dr. Treyve’s opinion was entitled to 

the weight of the medical opinion evidence and established that appellant had no binaural hearing 

loss causally related to the accepted factors of his employment.

 

14 Id.

15 See R.B., Docket No. 18-0720 (issued November 13, 2018); M.I., Docket No. 16-0759 (issued June 10, 2016).

16 R.B., id.; R.J., Docket No. 11-1644 (issued February 14, 2012); J.L., Docket No. 07-1740 (issued 

December 20, 2007).

17 R.B., id.; T.T., Docket No. 17-0471 (issued August 8, 2017).
6

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. 

CONCLUSION

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

loss causally related to the accepted factors of his federal employment.

ORDER

IT IS HEREBY ORDERED THAT the May 22, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 25, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board