United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.C., Appellant 

and 

DEPARTMENT OF LABOR, MINE SAFETY & 

HEALTH ADMINISTRATION, COAL 

DISTRICT 4, Mount Hope, WV, Employer 

__________________________________________ 

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Docket No. 16-0465 

Issued: May 17, 2016 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 8, 2016 appellant, through counsel, filed a timely appeal of a December 21, 

2015 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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant has met his burden of proof to establish more than 28 

percent binaural (both ears) hearing loss for which he received a schedule award. 

On appeal counsel contends that appellant’s schedule award should have included an 

additional impairment rating for tinnitus. He further argued that appellant’s audiogram 

supported additional impairment on the left. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On February 12, 2015 appellant, then a 64-year-old mine safety and health inspector, 

filed an occupational disease claim (Form CA-2) alleging that he developed hearing loss due to 

his exposure to noise emitted by mining machinery while performing his job duties. 

In letters dated February 23, 2015, OWCP requested that appellant and the employing 

establishment provide additional factual and medical evidence supporting his claim. The 

employing establishment responded and acknowledged that appellant was exposed to hazardous 

noise in the performance of his job duties. 

In a statement dated January 26, 2015, appellant indicated that he had noticed a 

significant change in his hearing beginning in 2011. He also reported continuous ringing in both 

ears. Appellant received an e-mail from the employing establishment on September 14, 2014 

noting that the results of his 2014 audiogram were significantly worse than his baseline in 2007 

and that of 2013. He submitted audiograms from the employing establishment hearing loss 

conservation program. 

On April 17, 2015 OWCP referred appellant for a second opinion evaluation with 

Dr. Albert James Paine, Jr., a Board-certified otolaryngologist. On June 2, 2015 appellant 

informed OWCP of the ringing in his ears which he stated made it difficult to hear and ruined the 

quality of his life. He alleged that during OWCP’s scheduled audiogram, the audiologist berated 

him for not indicating that he heard a tone. Appellant further noted that Dr. Paine did not 

address the ringing in appellant’s ears, despite the fact that appellant mentioned this condition. 

In a report dated June 2, 2015, Dr. Paine reviewed the statement of accepted facts and 

noted that appellant’s initial audiogram in 2007 showed bilateral sensorineural hearing loss, 

worse on the left. He found that appellant’s current audiogram demonstrated bilateral low, mid, 

and high frequency sensorineural hearing loss worse at high frequencies. Dr. Paine concluded 

that appellant’s hearing loss was in excess of what would normally be predicted on the basis of 

presbycusis and that the workplace exposure was sufficient to have caused this loss. He noted 

that appellant’s reliability was not good and recommended that appellant undergo another 

audiogram to obtain good reliability in both ears. 

Appellant’s audiogram demonstrated testing at 500, 1,000, 2,000, and 3,000 hertz 

(Hz) and in the right ear resulting respectively in decibel losses of 30, 35, 40, and 55 while on the 

left at the same levels demonstrated losses of 35, 45, 45, and 65. 

OWCP’s medical adviser reviewed Dr. Paine’s report on June 18, 2015 and 

recommended an additional audiogram. 

On June 26, 2015 OWCP accepted appellant’s claim for bilateral sensorineural hearing 

loss. 

OWCP referred appellant for an additional second opinion evaluation with Dr. Charles 

Abraham, a Board-certified otolaryngologist on June 24, 2015. In a report dated July 15, 2015, 

Dr. Abraham reviewed the statement of accepted facts and described appellant’s hearing loss and 

tinnitus. He opined, “Tinnitus is a problem [appellant] must deal with daily.” Dr. Abraham 
3

found bilateral sensorineural hearing loss consistent with appellant’s employment history of 

noise exposure. He recommended that appellant be evaluated for hearing aids. 

Appellant’s July 15, 2015 audiogram demonstrated testing at 500, 1,000, 2,000, and 

3,000 Hz and revealed on the right decibel losses of 40, 30, 45, and 55, respectively. On the left 

his decibel losses at the above levels were 40, 40, 55, and 70, respectively. OWCP’s medical 

adviser reviewed this test on July 27, 2015 and applied the hearing loss formula from the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides) (6th ed. 2009).2

 He added the right decibel losses to reach 170 and averaged this sum to 

reach 42.5. The medical adviser then subtracted the fence of 25 as directed by the A.M.A., 

Guides to reach 17.5 and multiplied this amount by 1.5 to reach a monaural loss on the right of 

26.25 percent. He followed the same procedure with the audiographic results of appellant’s left 

ear to reach 39.375 percent monaural hearing loss. The medical adviser then applied the formula 

to reach binaural hearing loss by multiplying the lesser loss by 5 and dividing the sum of the two 

losses by 6 to reach 28.437 percent binaural loss or 28 percent binaural hearing loss. 

By decision dated August 18, 2015, OWCP granted appellant a schedule award for 28 

percent binaural hearing loss. It based this award on the reports of Dr. Abraham and the medical 

adviser. 

Counsel requested reconsideration on September 22, 2015. He alleged that OWCP had 

improperly omitted appellant’s diagnosed condition of tinnitus when calculating his schedule 

award. Counsel further contended that based on appellant’s audiogram his decibel loss in the left 

ear at 3,000 Hz was 70 not 65. He requested an additional audiogram to establish appellant’s 

hearing loss. 

By decision dated December 21, 2015, OWCP denied modification of the August 18, 

2015 decision. It found that appellant’s (Form CA-2) did not include the condition of tinnitus. 

OWCP further found that Dr. Abraham’s report did not address or support additional impairment 

due to tinnitus. It further found that even if the audiogram demonstrated 70 rather than 65 

decibel loss, this would not change the amount of the schedule award. 

LEGAL PRECEDENT 

The schedule award provision of FECA3 and its implementing regulations4 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment for 

loss of use of scheduled members or functions of the body. FECA, however, does not specify 

the manner in which the percentage loss of a member shall be determined. The method used in 

making such determination is a matter which rests in the discretion of OWCP. For consistent 

results and to ensure equal justice, the Board has authorized the use of a single set of tables so 

that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of 

 2

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

3

 5 U.S.C. § 8107. 

4

 20 C.F.R. § 10.404. 
4

permanent impairment according to the standards set forth in the specified edition of the A.M.A., 

Guides.

5

 

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

A.M.A., Guides. 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. Then, the fence of 25 decibels is deducted 

because, as the A.M.A., Guides points out, losses below 25 decibel result in no impairment in the 

ability to hear everyday speech under everyday conditions.6 The remaining amount is multiplied 

by a factor of 1.5 to arrive at the percentage of monaural hearing loss. 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 and then added to the greater loss and the total is divided by six to arrive at 

the amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption of this 

standard for evaluating hearing loss.7 The Board has also noted OWCP’s policy to round the 

calculated percentage of impairment to the nearest whole number.8

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.9

ANALYSIS 

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

OWCP’s medical adviser applied the A.M.A., Guides to the medical report submitted 

from Dr. Abraham, which conforms to applicable criteria. The losses at the frequencies of 500, 

1,000, 2,000 and 3,000 cycles per second were added and averaged and the “fence of 25 decibels 

was deducted.10 The remaining amount was multiplied by 1.5 to arrive at the percentage of 

monaural hearing loss. For a binaural hearing loss, the loss in each ear is calculated using the 

above formula. The lesser loss is then multiplied by five and added to the greater loss. This 

amount is then divided by six to arrive at the total binaural hearing loss. For levels recorded in 

the right ear of 40, 30, 45, and 55, the above formula derives 26.25 percent monaural loss and for 

levels recorded in the left ear of 40, 40, 55 and 70, the above formula derives 39.375 percent 

 5

 For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides. 

A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and 

Permanent Disability Claims, Chapter 2.808.5a (February 2013); id., Part 3 -- Medical, Schedule Awards, Chapter 

3.700, Exhibit 1 (January 2010). 

6 See A.M.A., Guides 250. 

7 E.S., 59 ECAB 249 (2007); Reynaldo R. Lichetenberger, 52 ECAB 462 (2001). 

8 J.H., Docket No. 08-2432 (issued June 15, 2009), Robert E. Cullison, 55 ECAB 570 (2004). See supra note 5 at 

Chapter 3.700.4(b)(2)(b) (September 2010). 

9

 A.M.A., Guides 249. 

10 The A.M.A., Guides points out that the loss below an average of 25 decibels is deducted as it does not result in 

impairment in the ability to hear every day sounds under everyday listening conditions. 
5

monaural loss. According to the accepted formula these combine to reach a 28 percent binaural 

loss of hearing. 

On appeal, counsel argued that there was ambiguity in the left ear loss at 3,000 Hz based 

on the audiogram completed with Dr. Abraham’s report. The Board notes that the OWCP 

medical adviser did utilize the higher value of 70 decibels as demonstrated on the audiogram 

rather than the lesser amount of 65 decibels erroneously included by the audiologist on the 

audiological report. 

The Board notes that, regarding tinnitus, the A.M.A., Guides provides that tinnitus in the 

presence of 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 activities of daily living.11 Dr. Abraham noted that appellant experienced daily 

tinnitus, however, the medical adviser did not address this aspect of appellant’s claim when 

calculating his schedule award. 

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested 

arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP 

shares responsibility in the development of the evidence to see that justice is done.12 The Board 

finds that the case is not in posture for decision regarding the award or extent of tinnitus. 

On remand, OWCP should further develop the record regarding the extent and 

impairment of appellant’s hearing due to tinnitus. After this and such other development as it 

deems necessary, OWCP should issue a de novo decision. 

CONCLUSION 

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

 11 See S.M., Docket No. 14-1688 (issued May 1, 2015); D.W., Docket No.14-931 (issued August 11, 2014). 

12 Phillip L. Barnes, 55 ECAB 426 (2004). 
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ORDER 

IT IS HEREBY ORDERED THAT the December 21, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for additional development 

consistent with the Board’s decision. 

Issued: May 17, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board