United States Department of Labor

Employees’ Compensation Appeals Board

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J.B., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, Houston, TX, Employer

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Docket No. 18-0895

Issued: November 20, 2018

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 March 22, 2018 appellant filed a timely appeal from a February 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 to 

consider the merits of this case.

ISSUE

The issue is whether appellant has met his burden of proof to establish ratable hearing loss, 

warranting a schedule award.

FACTUAL HISTORY

On May 22, 2017 appellant, then a 55-year-old criminal investigator, filed an occupational 

disease claim (Form CA-2) alleging that he developed hearing loss and tinnitus due to his federal 

 

1 5 U.S.C. § 8101 et seq.
2

employment duties. He noted that he first became aware of his claimed condition on March 9, 

2003, but did not realize the relationship to factors of his federal employment until 

August 16, 2016. Appellant did not stop work and continued to be exposed to noise.

Appellant submitted a detailed statement of his employment history dated May 15, 2017

in which he indicated that he had been exposed to loud noise while employed as a secret service 

agent with the Department of the Treasury from 1995 to 2003 and as a criminal investigator with 

the employing establishment from 2003 to 2017. He also identified exposure to high noise 

pollution and toxic levels of environmental noise pollution during his temporary assignment to 

Beijing, China from 2009 to 2012. Appellant also submitted an August 16, 2016 audiogram report. 

In a June 15, 2017 statement of accepted facts (SOAF), OWCP accepted that appellant 

worked from 1995 to 2003 for the Department of the Treasury as a secret service agent and from 

2003 to 2017 with the employing establishment as a criminal investigator. It also accepted that he 

had been exposed to high noise pollution and toxic levels of environmental noise pollution during 

his temporary assignment to Beijing, China from 2009 to 2012. 

On September 26 and October 5 and 24, 2017 OWCP referred appellant, together with the 

SOAF, to Dr. Jerome Kosoy, a Board-certified otolaryngologist, for a second opinion otologic 

evaluation regarding the nature, extent, and relationship of appellant’s hearing loss to his federal 

employment. It also referred him to Anna McCraney, Au.D, ABA, for an audiological 

examination. 

In a November 9, 2017 report, Dr. Kosoy reviewed the SOAF and found that appellant’s 

employment-related noise exposure was sufficient to have caused his hearing loss. He diagnosed 

binaural noise-induced sensorineural hearing loss. Dr. Kosoy opined that this hearing loss was 

due to noise exposure encountered in appellant’s federal employment. Audiometric testing was 

performed for Dr. Kosoy by Ms. McCraney on November 9, 2017. Testing at the frequencies of 

500, 1,000, 2,000, and 3,000 cycles per second revealed the following: right ear 15, 10, 5, and 25 

decibels; left ear 15, 10, 10, and 20 decibels. Dr. Kosoy determined that appellant had no ratable 

hearing impairment and listed November 9, 2018 as the date of maximum medical improvement. 

On January 9, 2018 OWCP accepted appellant’s claim for binaural sensorineural hearing 

loss due to his employment-related hearing exposure. 

On January 24, 2018 an OWCP district medical advisor (DMA) reviewed Dr. Kosoy’s 

report and the audiometric test of November 9, 2017. He concluded that, in accordance with the 

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

Impairment,

2

(A.M.A., Guides), appellant had zero percent monaural hearing loss in each ear and 

zero percent binaural hearing loss. The DMA determined that appellant’s hearing loss was not 

sufficiently severe to be ratable for schedule award purposes after applying OWCP’s standards for 

evaluating hearing loss to the results of the November 9, 2017 audiogram. He recommended 

yearly audiograms, hearing aids, and noise protection for appellant’s ears. 

 

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

By decision dated February 22, 2018, OWCP found that although appellant’s hearing loss 

was employment related it was insufficient to be considered ratable for purposes of a schedule 

award.

LEGAL PRECEDENT

The schedule award provisions of FECA3and its implementing federal regulations4set 

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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.6

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

A.M.A., Guides.

7

 Using the frequencies of 500, 1,000, 2,000, and 3,000 hertz, 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 point out, losses below 25 decibels result in no impairment in the ability to hear 

everyday speech under everyday conditions. The remaining amount is multiplied by a factor of 

1.5 to arrive at the percentage of monaural hearing loss. 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 arrive at the amount of binaural hearing 

loss. The Board has concurred in OWCP’s adoption of this standard for evaluating hearing loss.

8

ANALYSIS

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

loss, warranting a schedule award.

Appellant submitted an August 16, 2016 audiogram from an audiologist. However, this 

audiogram does not constitute probative medical evidence of hearing loss because it was not 

certified by a physician as being accurate. The Board has held that, if an audiogram is prepared 

 

3 5 U.S.C. § 8107.

4 20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6 Federal (FECA) Procedure Manual, Part 2 -- Claims , Schedule Awards and Permanent Disability Claims, Chapter 

2.808.5(a) (March 2017); see also Part 3 -- Medical , Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

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

8 See J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).
4

by an audiologist, it must be certified by a physician as being accurate before it can be used to

determine the percentage of hearing loss.9

OWCP properly referred appellant to Dr. Kosoy for a second opinion examination relative 

to his hearing loss. Dr. Kosoy’s November 9, 2017 report related appellant’s audiogram findings 

and also concluded that appellant’s binaural hearing loss was due to his workplace noise exposure. 

He determined that appellant had no ratable hearing impairment.

On January 24, 2018 the DMA reviewed Dr. Kosoy’s report and concurred that appellant’s

employment-related hearing loss was not ratable for schedule award purposes. 

Testing for the right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per 

second revealed decibel losses of 15, 10, 5, and 25, respectively. These decibels were totaled at 

55 and were divided by 4 to obtain an average hearing loss at those cycles of 13.75 decibels. The 

average of 13.75 decibels was then reduced by 25 decibels (the first 25 decibels were discounted 

as discussed above) to equal zero percent hearing loss for the right ear.

Testing for the left ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per 

second revealed decibel losses of 15, 10, 10, and 20, respectively. These decibels were similarly 

totaled at 55 and were divided by 4 to obtain the average hearing loss at those cycles of 13.75 

decibels and then reduced by 25 decibels to compute 0 percent hearing loss for the left ear. Thus, 

the DMA concluded that appellant did not have permanent impairment of his hearing warranting

a schedule award. Although he has accepted employment-related hearing loss, it is not sufficiently 

severe to be ratable for schedule award purposes.

10

 

Regarding appellant’s claim that he is entitled to a schedule award for tinnitus, the A.M.A., 

Guides provides that tinnitus is not a disease, but rather a symptom that may be the result of disease 

or injury.11 The A.M.A., Guides notes that, if tinnitus interferes with the 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.12 For the reasons explained above, appellant has not established a measurable 

binaural hearing impairment under the A.M.A., Guides and therefore he would not be entitled to 

receive schedule award compensation for his tinnitus.

13

Appellant may request a schedule award or increased schedule award at any time based on 

evidence of a new exposure or medical evidence showing progression of an employment-related 

condition resulting in permanent impairment.

 

9 See Joshua A. Holmes, 42 ECAB 231, 236 (1990); J.O., Docket No. 17-1618 (issued June 14, 2018).

10 W.T., Docket No. 17-1723 (issued March 20, 2018); E.D., Docket No. 11-174 (issued July 26, 2011).

11 See A.M.A., Guides 249.

12 Id. See also Robert E. Cullison, 55 ECAB 570 (2004).

13 See J.O., supra note 9. 
5

CONCLUSION

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

loss, warranting a schedule award.

ORDER

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

Programs dated February 22, 2018 is affirmed.

Issued: November 20, 2018

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