United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.I., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Andover, MA, Employer

__________________________________________

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Docket No. 17-2020

Issued: March 28, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 28, 2017 appellant filed a timely appeal from an April 4, 2017 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

ISSUE

The issue is whether appellant established hearing loss and other conditions due to factors 

of her federal employment.

 

1 5 U.S.C. § 8101 et seq.

2 Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). After exercising its discretion, by order dated February 2, 2018, the Board denied the request as 

appellant’s arguments on appeal could be adequately addressed in a decision based on a review of the case as 

submitted on the record. Order Denying Request for Oral Argument, Docket No. 17-2020 (issued 

February 2, 2018).
2

FACTUAL HISTORY

On April 2, 2016 appellant, then a 56-year-old correspondence examination technician, 

filed an occupational disease claim (Form CA-2) alleging that she sustained hearing loss and 

other conditions due to exposure to hazardous noise in her workplace.3 She asserted that in 

September 2014 it was confirmed that sound masking noise in the workplace needed to be 

adjusted because it was causing medical issues. Appellant did not stop work. On the reserve 

side of the Form CA-2, appellant’s immediate supervisor indicated that she began supervising 

appellant in February 2015 and advised that she had no knowledge of the assertions made by 

appellant in her portion of the form. The supervisor noted that the white noise had been turned 

off in appellant’s current workplace and that she sat in an area with sound masking walls.

Appellant submitted a report of April 14, 2016 noise level testing of her work building 

which revealed that decibels levels (including noise contributed by the sound masking system) 

varied between 37.2 and 56.1 decibels depending on the time of day and the precise workstation 

where the testing was performed.4

Appellant submitted March 28, 2015 and April 4, 2016 reports in which Megan Ford, an 

attending audiologist, noted that she had mild high frequency hearing loss as denoted by 

audiogram testing performed on June 29, 2015 and January 6, 2016. The record contains copies 

of the audiograms obtained on those dates.5

In a May 15, 2015 report, Dr. Christen P. Fragala, an attending Board-certified family 

practitioner, indicated that appellant needed to wear hearing protection at work due to hearing 

loss and her reported trouble in focusing related to excessive noise from the sound-masking 

system. 

In a May 18, 2016 development letter, OWCP requested that appellant submit additional 

factual and medical evidence in support of her claim.

In statements dated May 18 and 30, 2016, appellant responded to OWCP’s May 8, 2016 

development letter and provided additional information about her exposure to noise in the 

workplace and the progression of her hearing symptoms. She advised that a sound-masking 

system was installed in her workplace a few years ago and she noted that she had been exposed 

to sound-masking noise from the system throughout much of her workday. Appellant asserted 

that the masking noise was loud enough to interfere with her understanding callers on the 

telephone. She indicated that her regular schedule was 3:30 p.m. to 2:00 a.m., Tuesday through 

 

3 Appellant also alleged that she sustained ringing in her ears, headaches, difficulty concentrating, and sleep 

apnea due to exposure to hazardous noise in the workplace. She indicated that on November 29, 2014 she first 

became aware of her claimed condition and its relationship to factors of her federal employment.

4 The report indicated that the sound-masking system was turned down between 2:55 p.m. and 4:00 a.m. each 

workday.

5 Appellant submitted several documents, dated in late-2014, through which she requested reasonable 

accommodation in the form of being placed in a work area where white noise levels were much lower.
3

Friday, and that she worked 10 to 20 hours of overtime per week. Appellant asserted that she 

was not exposed to loud noise outside of work.

In a May 27, 2016 report, Dr. Fragala indicated that she was appellant’s primary care 

physician and that she evaluated her on several occasions between May 2015 and May 2016. 

She noted that, due to the sound masking system at her work, appellant had bilateral high 

frequency hearing loss. Dr. Fragala advised that appellant needed hearing aids to help her hear. 

She noted, “I do feel that her hearing loss is related to the sound masking system in operation at 

her work. She does not have a history of hearing loss prior to her exposure to the sound masking 

system at her work.”

6

OWCP referred appellant for a second opinion examination to Dr. David Vernick, a 

Board-certified otolaryngologist. It requested that Dr. Vernick provide an opinion regarding 

whether appellant sustained a medical condition, including hearing loss, due to exposure to noise 

in the workplace. OWCP provided Dr. Vernick with a copy of the case record and a statement of 

accepted facts (SOAF) dated June 13, 2016.

In an August 4, 2016 report, Dr. Vernick discussed appellant’s factual and medical 

history and detailed the findings of audiologic testing he obtained on that date.7 He noted that 

the audiograms from June 29, 2015 and January 6, 2016 showed bilateral high frequency hearing 

loss. Dr. Vernick advised that his physical examination revealed that appellant had normal ear 

canals and normal drum mobility. He diagnosed bilateral high frequency hearing loss and 

bilateral tinnitus, noting that these conditions were not related to noise exposure at work. 

Dr. Vernick posited that the workplace background noise, including masking noise, was not 

sufficient in intensity and duration to cause a hearing condition.8 He noted that appellant’s 

hearing condition was consistent with age-related presbycusis.

OWCP requested that Dr. Vernick provide a supplemental report regarding the cause of 

appellant’s tinnitus and regarding whether the masking noise machine caused any medical 

condition. In a supplemental August 31, 2016 report, Dr. Vernick indicated that appellant’s 

tinnitus was related to her nonwork-related hearing loss and was not secondary to her federal 

employment. He noted that the noise-masking machine interfered with appellant’s 

concentration, but did not cause any medical harm.

By decision dated October 5, 2016, OWCP found that appellant failed to establish a 

causal relationship between her workplace noise exposure and a diagnosed hearing loss or other 

condition. It determined that the weight of the medical evidence rested with the opinion of

Dr. Vernick, OWCP’s referral physician, who found that there was no such causal relationship.

 

6

In a May 27, 2016 attending physician report (Form CA-20), Dr. Fragala listed the history of injury as high 

frequency hearing loss due to noise masking system at work and diagnosed bilateral sensorineural hearing loss. She 

checked a box marked “Yes” indicating that the diagnosed condition was caused or aggravated by the described 

employment activity.

7 The record contains a copy of the audiogram Dr. Vernick obtained from an audiologist and adopted as accurate 

on August 4, 2016. 

8 Dr. Vernick indicated that appellant reported that the masking noise interfered with her concentration.
4

Appellant requested a telephone hearing with a representative of OWCP’s Branch of 

Hearings and Review.9

Prior to the hearing, appellant submitted an October 17, 2016 letter from Dr. Arthur 

Lauretano, an attending Board-certified otolaryngologist. Dr. Lauretano indicated that he was 

seeing appellant for a hearing loss and noted, “[Appellant] reports that she is exposed to white 

noise at work and that is the reason for her hearing loss and tinnitus.”

Appellant also submitted copies of medical articles from “Noise and Health” journal and 

other publications regarding vibroacoustic disease (exposure to low frequency noise) and 

printouts from internet medical sites regarding noise exposure and hearing loss. 

At the hearing held on March 1, 2017, appellant testified that the Occupational Safety and 

Health Administration (OSHA) advised her that the white noise level in her workplace was 

below the harmful decibel level. She noted that she contacted the manufacture of the sound 

masking equipment and was advised that the machine was in need of adjustment. Appellant 

advised that the sound masking machine was turned down, but not off. She indicated that she 

requested reasonable accommodation and was temporarily moved to another work location, but 

noted that she was then returned to the same work site. 

After the hearing, appellant submitted copies of several e-mails she exchanged with 

employing establishment officials. The e-mails primarily concerned the operation of the sound 

masking system in appellant’s workplace. In a May 8, 2015 e-mail, D.M., a safety officer for the 

employing establishment, advised appellant that OSHA required action for noise at 85 decibels 

or above. She noted that the testing of appellant’s work area on May 7, 2015 showed a noise 

level of 48 to 49 decibels. D.M. included in her e-mail the results of sound masking noise 

measurements which showed tested levels of 35 decibels at appellant’s workstation and 49 

decibels outside the workstation.

In a January 27, 2017 letter, Dr. Lauretano indicated that he had evaluated appellant for 

hearing loss and tinnitus. He noted that she reported that was exposed to a loud white noise 

generator at work. Dr. Lauretano advised that this masking sound “might contribute” to 

appellant’s hearing loss and tinnitus, and indicated, “I believe it is a contributing factor.”

In a February 2, 2017 report, Jessica Woods, an attending audiologist, noted that 

appellant was under her treatment for severe tinnitus.

In an April 4, 2017 decision, OWCP’s hearing representative affirmed OWCP’s 

October 5, 2016 decision. He found that the weight of the medical evidence regarding the cause 

of appellant’s hearing problems continued to rest with the opinion of Dr. Vernick. The hearing 

 

9

In a December 1, 2016 letter, appellant requested that subpoenas be issued for testimony by an individual whom 

she felt had information about the potential harm of sound masking noise, and also for employing establishment 

records regarding her request for reasonable accommodation. In an informational letter dated January 18, 2017, 

OWCP’s hearing representative advised appellant that the subpoena request could not be appellant and advised 

appellant that she could submit a written statement from the individual she wished to subpoena, and could obtain 

employing establishment documents through the Privacy Act of 1974 or the Freedom of Information Act (FOIA). 

The Board notes that this matter is not currently before it on appeal.
5

representative found that the reports of appellant’s attending physicians were not well 

rationalized. 

LEGAL PRECEDENT

An employee seeking benefits under FECA 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 timely filed within the applicable 

time limitation period of FECA, that the injury was sustained while in the performance of duty as 

alleged, and that any disability and/or specific condition for which compensation is claimed are 

causally related to the employment injury.10 To establish fact of injury, an employee must 

submit evidence sufficient to establish that he or she experienced a specific event, incident, or 

exposure occurring at the time, place, and in the manner alleged.11 An employee must also 

establish that such event, incident, or exposure caused an injury.12 These are the essential 

elements of each and every compensation claim regardless of whether the claim is predicated 

upon a traumatic injury or an occupational disease.13

OWCP regulations define the term “[o]ccupational disease or illness” as a condition 

produced by the work environment over a period longer than a single workday or shift.14 To 

establish that an injury was sustained in the performance of duty in an occupational disease 

claim, an employee must submit the following: (1) medical evidence establishing the presence 

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

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

or occurrence of the disease or condition; and (3) medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the employee.15

The medical evidence required to establish causal relationship generally is rationalized 

medical opinion evidence.16 The opinion of the physician must be based on a complete factual 

and medical background of the employee, 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 established employment factors.17

 

10 5 U.S.C. § 8101(1); B.B., 59 ECAB 234 (2007); Elaine Pendleton, 40 ECAB 1143 (1989).

11 J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007). 

12 Id.

13 R.H., 59 ECAB 382 (2008); Ellen L. Noble, 55 ECAB 530 (2004).

14 20 C.F.R. § 10.5(q); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of 

Claims, Chapter 2.800.2b (June 2011).

15 D.H., Docket No. 15-1876 (issued January 29, 2016); D.I., 59 ECAB 158 (2007); Victor J. Woodhams, 41 

ECAB 345 (1989).

16 F.S., Docket No. 15-1052 (issued July 17, 2015); Tomas Martinez, 54 ECAB 623 (2003).

17 P.K., Docket No. 08-2551 (issued June 2, 2009); John W. Montoya, 54 ECAB 306 (2003).
6

ANALYSIS

Appellant alleged that she sustained hearing loss and other conditions due to exposure to 

hazardous noise in her workplace from a noise-masking machine.

18

 By decisions dated 

October 5, 2016 and April 4, 2017, OWCP denied appellant’s claim for such work-related 

conditions. 

On appeal appellant argues that OWCP improperly relied on the opinion of Dr. Vernick, 

OWCP’s referral physician, in denying her claim and she asserts that it should have given greater 

weight to the opinions of her attending physicians. 

The Boards finds that the weight of the medical evidence regarding the cause of 

appellant’s hearing problems rested with the opinion of Dr. Vernick, OWCP’s referral physician.

In an August 4, 2016 report, Dr. Vernick discussed appellant’s factual and medical 

history and detailed the findings of audiologic testing he obtained on that date. He diagnosed 

bilateral high frequency hearing loss and bilateral tinnitus, noting that these conditions were not 

related to noise exposure at work. Dr. Vernick posited that the workplace background noise, 

including masking noise, was insufficient in intensity and duration to cause a hearing condition. 

He opined that appellant’s hearing condition was consistent with age-related presbycusis. In a 

supplemental August 31, 2016 report, Dr. Vernick indicated that appellant’s tinnitus was related 

to her nonwork-related hearing loss and was not secondary to her federal employment. He noted 

that the noise-masking machine interfered with appellant’s concentration, but did not cause any 

medical harm. 

The Board has reviewed the opinion of Dr. Vernick and finds that it has reliability, 

probative value, and convincing quality with respect to its conclusions regarding the relevant 

issue of the present case. Dr. Vernick was provided an accurate SOAF and he provided a 

thorough factual and medical history, and accurately summarized the relevant medical 

evidence.19 He provided medical rationale for his opinion by noting that appellant’s hearing 

problems could be explained by a nonwork-related cause, i.e., presbycusis (age-related hearing 

loss). Dr. Vernick took into account the low-level noise to which appellant was exposed in 

addition to her age and the audiogram testing results in the record.

Appellant submitted several reports in which attending physicians indicated that she 

sustained hearing loss due to exposure to noise in the workplace, but these reports are of limited 

probative value given the fact that these physicians did not provide adequate medical rationale in 

support of their opinions on causal relationship. The Board has held that a medical report is of 

limited probative value on the issue of causal relationship if it contains a conclusion regarding 

causal relationship which is unsupported by medical rationale.20

 

18 Appellant also claimed that she sustained ringing in her ears, headaches, difficulty concentrating, and sleep 

apnea due to exposure to hazardous noise in the workplace.

19 See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

20 C.M., Docket No. 14-88 (issued April 18, 2014).
7

In a May 27, 2016 report, Dr. Fragala, an attending Board-certified family practitioner, 

noted that, due to the sound masking system at her work, appellant had bilateral high frequency 

hearing loss. She advised that appellant needed hearing aids to help her hear. Dr. Fragala noted, 

“I do feel that her hearing loss is related to the sound masking system in operation at her work. 

Appellant does not have a history of hearing loss prior to her exposure to the sound masking 

system at her work.” 

The Board notes that report is of limited probative value in establishing a work-related 

hearing loss because Dr. Fragala did not provide adequate medical rationale in support of her 

opinion on causal relationship.21 Although she noted a temporal relationship between appellant’s 

hearing complaints and exposure to the sound-masking system at work, the Board has held that 

the fact that a condition manifests itself or worsens during a period of employment22 or that work 

activities produce symptoms revelatory of an underlying condition23 does not raise an inference of 

causal relationship between a claimed condition and employment factors. The Board notes that

Dr. Fragala’s opinion is of limited probative value on the relevant issue of this case for the further 

reason that she does not specialize in a field peculiar to appellant’s claimed condition. The Board 

has held that the opinions of physicians who have training and knowledge in a specialized medical 

field have greater probative value concerning medical questions peculiar to that field than the 

opinions of other physicians.24

In an October 17, 2016 letter, Dr. Lauretano, an attending Board-certified 

otolaryngologist, indicated that he was seeing appellant for a hearing loss and noted, 

“[Appellant] reports that she is exposed to white noise at work and that is the reason for her 

hearing loss and tinnitus.” In a January 27, 2017 letter, he indicated that he had evaluated 

appellant for hearing loss and tinnitus. Dr. Lauretano noted that she reported exposure to a loud 

white noise generator at work. He advised that this masking sound might contribute to 

appellant’s hearing loss and tinnitus, and indicated, “I believe it is a contributing factor.”

These reports do not establish appellant’s claim for a work-related hearing loss because

Dr. Lauretano did not provide adequate medical rationale in support of his opinion on causal 

relationship. The Board notes that Dr. Lauretano’s reports contain mere conclusory opinions

without the necessary rationale explaining how and why the employment factors were sufficient to 

result in the diagnosed medical condition. The Board has held that such opinions are insufficient 

to meet a claimant’s burden of proof to establish a claim.25 Moreover, Dr. Lauretano introduced an 

 

21 See supra note 20.

22 William Nimitz, Jr., 30 ECAB 567, 570 (1979).

23 Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

24 Lee R. Newberry, 34 ECAB 1294, 1299 (1983). In a May 27, 2016 attending physician report, Dr. Fragala listed 

the history of injury as high frequency hearing loss due to noise masking system at work and diagnosed bilateral 

sensorineural hearing loss. She checked a box marked “Yes” indicating that the diagnosed condition was caused or 

aggravated by the described employment activity. However, this report is of little probative value regarding causal 

relationship because the Board has held that when a physician’s opinion on causal relationship consists only of 

checking “Yes” to a form question, without more by the way of medical rationale, that opinion has little probative 

value and is insufficient to establish causal relationship. Lillian M. Jones, 34 ECAB 379, 381 (1982). 

25 J.D., Docket No. 14-2061 (issued February 27, 2015).
8

equivocal aspect to his opinion on causal relationship when he indicated that the masking sound 

from the white noise generator in appellant’s workplace might contribute to her hearing loss and 

tinnitus. The Board has held that an opinion which is equivocal or speculative is of limited 

probative value regarding the issue of causal relationship.26

For these reasons, appellant has not met her burden of proof to establish hearing loss and 

other conditions due to factors of her federal employment.

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 established hearing loss and other conditions due 

to factors of her federal employment.

ORDER

IT IS HEREBY ORDERED THAT the April 4, 2017 merit decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 28, 2018

Washington, DC

Christopher J. Godfrey, 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

 

26 See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956). The Board notes that 

appellant also did not submit medical evidence sufficient to establish her claim that she sustained headaches, difficulty 

concentrating, and sleep apnea due to exposure to hazardous noise in the workplace.