United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.B., Appellant

and

DEPARTMENT OF THE ARMY, ARMY 

CORPS OF ENGINEERS, Vicksburg, MS, 

Employer

__________________________________________

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Docket No. 18-0720

Issued: November 13, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 February 20, 2018 appellant, through counsel, filed a timely appeal from a January 22, 

2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). 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.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq. 
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, 2015 appellant, then a 64-year-old retired engineer equipment operator,3

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

by factors of his federal employment. He indicated that he first became aware of his claimed 

condition on September 2, 1986 and of its relationship to factors of his federal employment on 

June 16, 1998. Appellant explained that his delay in filing his claim was because he had developed 

kidney failure and was in and out of the hospital. 

By development letter dated December 30, 2015, OWCP advised appellant of the 

deficiencies in his claim. It requested that he submit additional evidence regarding the exposure 

or work factors he believed had caused his injury. Appellant was also asked to complete a 

questionnaire listing his employment history, exposure to hazardous noise at work, the date he first 

noticed his hearing loss, all previous ear or hearing programs in which he participated, and hobbies 

involving exposure to loud noise. OWCP afforded him 30 days to submit the requested 

information. 

In a separate letter, also dated December 30, 2015, OWCP requested information from the 

employing establishment, including the locations 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. 

OWCP subsequently received evidence that included the results of audiograms performed 

by the employing establishment’s for their hearing conservation program dated September 2, 1986, 

June 16, 1998, June 29, 2000, and July 2012. 

On November 11, 2015 Dr. Robert Moore, a Board-certified family practitioner, 

performed an audiogram and advised that appellant had 67 percent hearing loss in the right ear and 

62 percent hearing loss in the left ear and recommended hearing aids.

On January 6, 2016 appellant responded to the development questionnaire OWCP sent to 

the employing establishment. He indicated that the employing establishment did not challenge his

allegations. Appellant noted that he began working in the Mat Sinking unit at the employing 

establishment in 1984 and worked there for a total of 30 years. He worked with and was exposed 

to noise from heavy machinery such as, bulldozers, a track hoe with bucket, anchor driver 

machines, and other heavy equipment to perform various tasks. Appellant also worked fully with 

 

3 The record reflects that appellant retired on July 31, 2013. 
3

heavy machinery for 22 years in the Mat Sinking unit, and as a result, he claimed that he suffered 

a significant amount of hearing loss/damage. He related that a supervisor would provide all 

documentation pertaining to his claim. 

On February 18, 2016 OWCP advised appellant that he had mistakenly responded to the 

employing establishment’s development questionnaire. Appellant was asked to complete the 

development questionnaire sent to him. 

On February 25, 2016 appellant responded to OWCP’s development questionnaire directed 

to him. He indicated that his last date of exposure was January 24, 2013 and that he officially 

retired on July 31, 2013. Appellant further indicated that on June 16, 1998 he first realized his 

hearing loss. He maintained that he did not have any hobbies that involved loud noise. Appellant 

reiterated his employment history at the employing establishment, his exposure to equipment noise 

at work, and claimed that he sustained significant hearing loss/damage. He noted that he held 

several positions in the Mat Sinking unit, which included a revetment worker, engineer equipment 

operator, engineer equipment operator foreman, and engineer equipment operator leader in the 

Operations Divisions, River Operations Branch, Revetment Section. Appellant sometimes worked 

overtime. He claimed that, on average he worked “about 140 plus hours a week” in the Mat 

Sinking unit around loud machines such as, anchor drivers, bulldozers, and tract hoe machines. 

Appellant also worked in closed areas, such as the Mississippi River Bank and the Mat Plant which 

was on the Mississippi River. In addition, he worked around steel anchors along with the heavy 

machines during work hours. Appellant indicated that he was provided with small foam earplugs 

upon working in the Mat Sinking unit.

By letter dated May 2, 2016, OWCP referred appellant, together with a statement of 

accepted facts and the medical record, to Dr. Melanie H. Smith, a Board-certified otolaryngologist, 

for a second opinion to determine whether appellant sustained employment-related hearing loss. 

Dr. Smith completed an outline for otologic evaluation (Form CA-1332) dated June 1, 2016 and 

provided audiometric test results. In the CA-1332 form, she noted that appellant had normal 

hearing until 2012 when his hearing dropped substantially according to his medical records. On 

examination Dr. Smith observed a normal canal and drum mobility. There was no indication of 

any medical condition such as an acoustic neuroma or Meniere’s disease. Dr. Smith suggested 

malingering. She checked a box indicating that appellant’s sensorineural hearing loss was not due 

to noise exposure in his federal civilian employment. Dr. Smith noted that no other history 

contributed to his hearing loss. She recommended repeat audio testing as the present audiometric 

findings were inconsistent. In addition, Dr. Smith advised that appellant’s hearing loss, as 

documented, did not match the otoacoustic emission test findings and that his speech 

discrimination scores were also inconsistent.

A June 1, 2016 audiogram performed on Dr. Smith’s behalf by Cathryn Crawford Hollis, 

an audiologist reflected testing at the frequency levels of 500, 1,000, 2,000, and 3,000 hertz (Hz)

which revealed the following: right ear 30, 40, 45, and 45 decibels (dBs), respectively, left ear 45, 

45, 50, and 75 dBs, respectively. Ms. Crawford Hollis had to reinstruct appellant several times for 

consistency. Appellant’s word recognition skills testing was very questionable. Ms. Crawford 

Hollis recommended repeat audio testing.
4

By decision dated June 21, 2016, OWCP denied appellant’s hearing loss claim. It found 

that the evidence of record established that he was exposed to hazardous noise at work and that he 

was diagnosed with sensorineural hearing loss, however, he had not established that his hearing 

loss was causally related to his federal employment noise exposure. OWCP explained that the 

reason for the finding was that Dr. Smith opined that appellant’s sensorineural hearing loss was 

not due to noise exposure in his federal employment. 

In an appeal request form received on July 12, 2016 and by letter received on July 13, 2016, 

appellant requested a review of the written record by an OWCP hearing representative. He again 

contended that his hearing loss was caused by his employment-related noise exposure. 

Appellant submitted a June 29, 2016 letter from Jason Massey, a Board-certified hearing 

instrument specialist. Mr. Massey performed an audiogram on that date which related testing at 

the frequency levels of 500, 1,000, 2,000, and 3,000 Hz and revealed the following: right ear 85, 

80, 75, and 75 dBs, respectively, left ear 90, 90, 95, and 95 dBs, respectively. He reported that the 

results of his evaluation indicated that appellant had profound bilateral sensorineural hearing loss. 

Mr. Massey noted that appellant’s speech discrimination was at 68 percent in both ears. He further 

related that appellant had extreme difficulty communicating with others due to the nature of his 

hearing loss. Mr. Massey noted that he was being fitted with binaural hearing instruments, but 

that he was still expected to have problems communicating as the extent of his hearing loss was 

great. 

On July 13, 2016 appellant augmented two of his February 25, 2016 responses to OWCP’s 

development questionnaire. He noted that he first realized his hearing loss on September 2, 1986

rather than on June 16, 1988. Appellant further noted that he worked with heavy machinery in the 

Mat Sinking unit for 30 years instead of 22 years. 

By decision dated November 7, 2016, an OWCP hearing representative set aside the 

June 21, 2016 decision and remanded the case to OWCP for further development of the medical 

evidence as Dr. Smith had recommended further audiologic testing and the record suggested 

malingering. 

On January 17, 2017 OWCP again referred appellant to Dr. Smith for a second opinion to 

perform repeat audio testing as she had recommended. Dr. Smith completed a Form CA-1332 

dated January 31, 2017 and provided audiometric test results. She reiterated that appellant’s 

hearing was normal until 2012 when his hearing dropped as documented in enclosed documents.

Dr. Smith maintained that the tests in these documents were not accurate. On examination she 

again observed a normal canal and drum mobility and restated her prior suggestion of malingering. 

Dr. Smith again checked a box indicating that appellant’s sensorineural hearing loss was not due 

to noise exposure in his federal civilian employment and that no other history contributed to his 

hearing loss. She advised that his test results did not match and were inconsistent indicating that 

his hearing was better than he claimed. Dr. Smith maintained that appellant was dishonest,

unreliable, and uncooperative on testing.

On January 31, 2017 Ms. Crawford Hollis performed another audiogram on Dr. Smith’s 

behalf. Testing at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed dBs losses of 

30, 40, 45, and 45, respectively, for the right ear, and dBs losses of 45, 45, 50, and 75, respectively 
5

for the left ear. Ms. Crawford Hollis indicated that the audiometric test results were not reliable 

and not representative of appellant’s hearing sensitivity because he was purposefully trying to 

manipulate the test. Appellant had functional hearing loss and there was a strong possibility of 

malingering. Speech reception thresholds were inconsistent with pure tone averages and that even 

after reinstruction, results remained inconsistent. Optoacoustic emissions testing bilaterally 

indicated normal functioning of the outer hair cells in the inner ear and tympanograms bilaterally 

indicated normal middle ear function. Appellant had no difficulty communicating or following 

instructions at a normal conversation level of 50 dB, but he responded poorly on word recognition 

skills testing at 85 dB bilaterally. 

By decision dated March 8, 2017, OWCP again denied appellant’s claim, finding that the 

medical evidence of record failed to establish that his hearing loss was causally related to his 

accepted federal employment noise exposure. It found that the January 31, 2017 report of

Dr. Smith represented the weight of the medical evidence.

On January 16, 2018 appellant, through counsel, requested reconsideration of the March 8, 

2017 decision. Appellant submitted a December 19, 2017 letter and audiogram from

Dr. Stephen D. Shorts, an otolaryngologist. Dr. Shorts noted appellant’s work history at the 

employing establishment and reviewed the employing establishment audiograms performed in 

1986, 1998, 2000, and 2012. He related that the audiograms performed from 1986 through 2000 

were essentially normal for appellant’s age. Dr. Shorts advised that the July 2012 audiogram 

showed hearing loss in the right ear from 55 to 80 dBs and 60 to 100 dBs in the left ear. He

examined appellant and reported normal canals, tympanic membranes, and middle ears. Dr. Shorts 

further reported that audiometric testing revealed mild-to-moderate sensorineural hearing loss in 

both ears, right a little worse than left. Appellant’s discrimination scores were 76 percent on the 

right and 80 percent on the left. Dr. Shorts noted that these scores placed appellant in hearing aid 

range. He further noted that it appeared that, from approximately 2,000 Hz and above, this type 

of loss could have been caused by noise exposure, but the loss approximately below 2,000 Hz was 

not caused by noise damage and was more likely hereditary. Dr. Shorts believed that appellant’s 

exposure to noise for 30 years accelerated his hearing loss. He recommended hearing aids for both 

ears due to the degree of hearing loss. Dr. Shorts maintained that it was obvious that the 2012 

audiogram was erroneous as the settings of that audiometer or background noise probably caused 

inaccurate testing. He recommended disregarding the audiogram for further comparison in the 

future. 

The December 19, 2017 audiogram performed by Dr. Shorts related that hearing thresholds 

at 500, 1,000, 2,000, and 3,000 Hz were 20, 40, 45, and 40 dBs, respectively, for the right ear, and 

30, 35, 30, and 25 dBs, respectively, for the left ear. 

By decision dated January 22, 2018, OWCP reviewed the merits of appellant’s claim, but

denied modification of its March 8, 2017 decision. It found that Dr. Shorts’ December 19, 2017 

report was insufficient to establish causal relationship between the accepted factors of appellant’s 

federal employment and his diagnosed hearing loss.
6

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 FECA, that the claim was timely filed within the applicable time 

limitation period of FECA, that an injury was sustained in the performance of duty, as alleged, and 

that any disability or specific condition for which compensation is claimed is causally related to 

the employment injury.4 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.5

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; (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 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. 

The medical evidence required to establish causal relationship, generally, is rationalized 

medical opinion evidence. Rationalized medical opinion evidence is medical evidence which 

includes a physician’s rationalized opinion on the issue of whether there is causal relationship 

between the claimant’s diagnosed condition and the implicated 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.6

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. 

In support of his claim, appellant submitted the employing establishment’s annual 

audiograms dated September 2, 1986, June 16, 1998, June 29, 2000, and July 2012. 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.7

 

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5 Victor J. Woodhams, 41 ECAB 345 (1989).

6

Id.

7 M.I., Docket No. 16-0759 (issued June 10, 2016).
7

Appellant also submitted Dr. Moore’s November 11, 2015 audiogram results. Dr. Moore 

opined that appellant had 67 percent hearing loss in the right ear and 62 percent hearing loss in the 

left ear. However, he offered no opinion regarding the cause of appellant’s hearing loss. The 

Board has held that medical evidence that does not offer an opinion regarding the cause of an 

employee’s condition is of limited probative value on the issue of causal relationship.8 As such, 

this report is insufficient to meet appellant’s burden of proof.

Following the submission of evidence from appellant, OWCP referred him to a second 

opinion for an audiological and otologic evaluation by Dr. Smith, who concluded that he did not 

have sensorineural hearing loss due to his federal employment. On June 1, 2016 Dr. Smith 

examined him and reviewed the medical record, including the audiograms conducted during his

federal employment. She suggested malingering. Dr. Smith recommended repeat audiometric 

testing as appellant’s documented hearing loss did not match the optoacoustic emission test 

findings and his speech discrimination scores were inconsistent.

On June 21, 2016 OWCP denied appellant’s hearing loss claim based on Dr. Smith’s 

June 1, 2016 opinion. On November 7, 2016 an OWCP hearing representative remanded the 

matter to OWCP for additional audiologic testing as recommended by Dr. Smith. 

Following remand of the case to OWCP by OWCP’s hearing representative, OWCP 

requested that Dr. Smith perform repeat audiological testing. On January 31, 2017 Dr. Smith again 

reviewed the employing establishment audiograms, examined appellant, and performed a repeat 

audiogram. She restated that he had normal hearing until 2012 when it dropped. Dr. Smith 

maintained, however, that these test results were inaccurate. She reiterated her prior normal 

physical examination findings and her suggestion he was a malingerer. Dr. Smith also reiterated 

her prior opinion that appellant’s sensorineural hearing loss was not due to his federal employment 

noise exposure. She reasoned that his hearing loss was better than he claimed as his test results 

were inconsistent with his condition. Dr. Smith noted that appellant was dishonest, unreliable, and 

uncooperative on testing. Ms. Crawford Hollis, an audiologist, performed the January 31, 2017 

audiogram on Dr. Smith’s behalf and related that the test results were not reliable and not 

representative of his hearing sensitivity as he was purposefully trying to manipulate the test. There 

was a strong possibility that appellant was malingering. Ms. Crawford Hollis indicated that,

speech reception thresholds were inconsistent with pure tone averages and that even after 

reinstruction, results remained inconsistent. In addition, optoacoustic emissions testing bilaterally 

revealed normal functioning of the outer hair cells in the inner ear and tympanograms bilaterally 

indicated normal middle ear function. Ms. Crawford Hollis noted that appellant had no difficulty 

communicating or following instructions at a normal conversation level of 50 dB, but he responded 

poorly on word recognition skills testing at 85 dB bilaterally. 

The Board finds that Dr. Smith’s January 31, 2017 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.9 Dr. Smith’s opinion is based on a proper factual and medical history as 

she reviewed current and previous audiometric test results and related her findings on examination 

 

8 See C.B., Docket No. 09-2027 (issued May 12, 2010); see also S.E., Docket No. 08-2214 (issued May 6, 2009).

9 See R.J., Docket No. 11-1644 (issued February 14, 2012); J.L., Docket No. 07-1740 (issued December 20, 2007).
8

and testing in support of her opinion that his hearing loss was not due to the noise in his federal 

employment.10 

The Board finds that the remaining medical evidence submitted by appellant in support of 

his hearing loss claim is insufficient to establish his burden of proof.

Dr. Shorts’ December 19, 2017 report found that appellant’s mild-to-moderate bilateral 

sensorineural hearing loss was accelerated by his federal employment noise exposure, but he failed 

to provide adequate medical rationale to support his opinion on causal relationship. He indicated 

that it appeared that appellant’s hearing loss from 2,000 Hz and above could have been caused by 

noise exposure, while appellant’s hearing loss below 2,000 Hz was more likely hereditary. The 

opinion of a physician supporting causal relationship must rest on a complete factual and medical 

background supported by affirmative evidence, address the specific factual and medical evidence 

of record, and provide medical rationale explaining the relationship between the diagnosed 

condition and the established incident or factor of employment.11 Dr. Shorts noted that appellant’s 

hearing was within a normal range until 2012, but he did not note that appellant retired in 2013. 

The Board finds that he did not adequately address how appellant’s federal employment noise 

exposure, based upon an accurate factual and medical background, caused or contributed to the 

hearing loss he found in December 2017.12 Dr. Shorts’ opinion is couched in speculative terms, is 

not fully rationalized, and is of diminished probative value.13 The mere fact that a condition arises 

during a period of employment and was not present prior to the period of employment is 

insufficient to support causal relationship.14

The June 29, 2016 audiogram and report of Mr. Massey, a Board-certified hearing 

instrument specialist, have no probative medical value. A hearing instrument specialist is not 

considered a “physician” as defined under FECA.15 As such, this evidence is also insufficient to 

meet appellant’s burden of proof.

Although appellant was exposed to noise while in the performance of his federal 

employment duties, the medical evidence of record is insufficient to establish that he had binaural 

hearing loss causally related to the accepted factors of his federal employment. Thus, the evidence 

of record is insufficient to establish his claim.16

 

10 See T.T., Docket No. 17-0471 (issued August 8, 2017).

11 Supra note 5.

12 See E.J., Docket No. 17-1755 (issued March 9, 2018); Solomon Polen, 51 ECAB 341 (2000).

13 L.P., Docket No. 14-1360 (issued October 29, 2014).

14 See M.J., Docket No. 17-0725 (issued May 17, 2018); Michael S. Mina, 57 ECAB 379 (2006).

15 5 U.S.C. § 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. See also M.F., Docket No. 16-1296 (issued December 15, 2016); Roy L. Humphrey, 57 ECAB 

238 (2005).

16 See J.B., Docket No. 17-0984 (issued July 11, 2018); Mary E. Marshall, 56 ECAB 420, 427 (2005).
9

On appeal, counsel simply contends that the January 22, 2018 OWCP decision is contrary 

to fact and law. For the reasons stated above, the Board finds that the weight of the medical 

evidence of record is insufficient to establish that appellant sustained binaural hearing loss causally 

related to his federal employment noise exposure.

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 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 January 22, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 13, 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