United States Department of Labor

Employees’ Compensation Appeals Board

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H.R., Appellant

and

TENNESSEE VALLEY AUTHORITY, 

DIVISION OF FOSSIL & HYDRO POWER, 

Tuscumbia, AL, Employer

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Docket No. 19-0860

Issued: October 17, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 14, 2019 appellant filed a timely appeal from a December 12, 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 greater than one

percent monaural (right ear) hearing loss, for which he previously received a schedule award.

FACTUAL HISTORY

On June 12, 2017 appellant, then a 64-year-old senior instrument mechanic foreman, filed 

an occupational disease claim (Form CA-2) alleging that he had sustained hearing loss and tinnitus, 

due to persistent noise exposure while in the performance of duty. On the reverse side of the claim 

form, the employing establishment indicated that appellant was last exposed to conditions alleged 

to have caused his injury on July 1, 2016.

In a development letter dated July 6, 2017, OWCP informed the employing establishment 

of appellant’s claim, and requested additional information, including all employing establishment 

audiograms of record, in order for it to render a decision as to whether he was eligible for FECA 

benefits. In a separate development letter to appellant dated July 7, 2017, it advised him of the 

deficiencies of his claim, requested additional factual and medical evidence, and provided a 

questionnaire for his completion. OWCP afforded appellant and the employing establishment 30 

days to submit the necessary evidence.

On October 12, 2017 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and a copy of the medical record, to Dr. Dennis G. Pappas, a Board-certified 

otolaryngologist, for a second opinion impairment evaluation pursuant to the sixth edition of the 

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

Guides).

3

 In a November 6, 2017 report, Dr. Pappas reviewed appellant’s history of noise 

exposure at work and provided examination findings. He performed an otologic evaluation and 

audiometric testing was obtained on his behalf on November 6, 2017. Testing at frequency levels 

of 500, 1,000, 2,000, and 3,000, Hertz (Hz) revealed the following: right ear 20, 10, 30, and 55 

decibels (dBs); and left ear 20, 15, 20, and 35 dBs. Dr. Pappas calculated 0 percent hearing 

impairment on the left, 5.6 percent hearing impairment on the right, and 0.93 percent binaural 

hearing impairment. He determined a tinnitus impairment rating of 3 percent, and added that to 

the calculation for binaural hearing impairment of 0.93 percent to establish 3.93 percent total

binaural hearing impairment. Dr. Pappas diagnosed bilateral sensorineural hearing loss and 

bilateral tinnitus. He noted that the hearing loss pattern and severity were consistent with 

employment-related noise-induced hearing loss, and listed the date of maximum medical 

improvement as November 6, 2017. 

In a report dated January 24, 2018, Dr. Jeffrey M. Israel, a Board-certified otolaryngologist 

serving as the district medical adviser (DMA), reviewed the SOAF and medical records. He 

indicated that the earliest audiogram of record was from June 1999 and revealed normal hearing 

in appellant’s right ear with the exception of a 25 dB level at 6,000 Hz, and normal hearing in 

appellant’s left ear with the exception of a 35 dB level at 4,000 Hz. Dr. Israel noted that the several 

subsequent audiograms revealed a progressive sensorineural hearing loss. He then reviewed

 

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

appellant’s most recent audiogram from November 6, 2017 performed by Dr. Pappas, and opined 

that the patterns were suggestive of sensorineural hearing loss due to at least in part to employmentrelated noise-induced acoustic trauma. Dr. Israel indicated a date of MMI of November 6, 2017, 

the date of appellant’s last audiogram. He reviewed the audiogram performed on November 6, 

2017 and concurred with Dr. Pappas’ calculation of a right ear hearing impairment rating of 5.625 

percent, a left ear hearing impairment rating of 0 percent, and binaural hearing loss rating of 0.9 

percent. Dr. Israel related that Dr. Pappas used a “Tinnitus Impairment Chart to determine that 

there should be a 3 percent tinnitus award added to the calculated binaural loss ... there was no 

discussion of tinnitus in the records and its impact on the activities of daily life. Nevertheless, if 

one adds that 3 percent to the .9 percent binaural loss, one receives a total award of 3.9 percent.” 

On January 26, 2018 OWCP accepted appellant’s claim for binaural sensorineural hearing 

loss.

On April 5, 2018 appellant filed a claim for a schedule award (Form CA-7). 

By decision dated December 12, 2018, OWCP granted appellant a schedule award for one

percent monaural (right ear) hearing loss. The award ran for .52 weeks from November 6 

to 9, 2017. OWCP noted that the percentage of permanent impairment was based on Dr. Pappas’

report dated November 6, 2017 and the report of the DMA, Dr. Israel, dated January 24, 2018.

LEGAL PRECEDENT

The schedule award provisions of FECA4 and its implementing regulations5 set 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. 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 sound 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. The A.M.A., Guides has 

been adopted by OWCP for evaluating schedule losses and the Board has concurred in such 

adoption.6

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 Hz, the losses at each 

frequency are added up and averaged.7 Then, the fence of 25 dBs is deducted because, as the 

A.M.A., Guides points out, losses below 25 dBs result in no impairment in the ability to hear 

 

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

See J.W., Docket No. 17-1339 (issued August 21, 2018); R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 

ECAB 143 (2000).

7 A.M.A., Guides 250.
4

everyday speech under everyday conditions.8 The remaining amount is multiplied by a factor of 

1.5 to arrive at the percentage of monaural hearing loss.9

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, then added to the greater loss and the total is 

divided by six to arrive at the amount of the binaural hearing loss.10 The Board has concurred in 

OWCP’s adoption of this standard for evaluating hearing loss.11 The policy of OWCP is to round 

the calculated percentage of impairment to the nearest whole number.12 OWCP’s procedures 

provide that percentages should not be rounded until the final percent for award purposes is 

obtained. Fractions should be rounded down from .49 and up from .50.13

If tinnitus interferes with ADL’s, including sleep, reading, and other tasks requiring 

concentration, enjoyment of quiet recreation and emotional well-being, up to five percent may be 

added to measurable binaural hearing impairment.14 A schedule award for tinnitus is not payable 

unless the medical evidence establishes that the condition caused or contributed to a ratable hearing 

loss.15

ANALYSIS

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

In his November 6, 2017 report, Dr. Pappas performed an otologic evaluation and reviewed 

appellant’s audiometric testing. Testing at frequency levels of 500, 1,000, 2,000, and 3,000 Hz 

revealed the following: right ear 20, 10, 30, and 55 decibels (dBs); and left ear 20, 15, 20, and 35 

dBs. Dr. Pappas calculated a 0 percent hearing impairment on the left, 5.6 percent hearing 

impairment on the right, and 0.93 percent binaural hearing impairment. He determined a tinnitus 

impairment rating of 3 percent, and added that to the calculation for binaural hearing impairment 

of 0.93 percent to find a 3.93 percent total binaural hearing impairment. 

In his January 24, 2018 report, Dr. Israel, serving as the DMA, indicated a date of MMI of 

November 6, 2017, the date of appellant’s last audiogram. He reviewed the November 6, 2017

audiogram and concurred that appellant had a right ear hearing impairment rating of 5.625 percent, 

a left ear hearing impairment rating of 0 percent, and binaural hearing loss rating of 0.9 percent. 

 

8

Id.; C.D., Docket No. 18-0251 (issued August1, 2018).

9

Id.

10 Id.

11 V.M., Docket No. 18-1800 (issued April23, 2019); see J.W., supra note 6; C.D., supra note 8.

12 V.M., supra note 11; P.L.,Docket No. 17-0355 (issued June27, 2018).

13 V.M., id.; C.D., supra note 8; Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,Chapter 

3.700.4 (January 2010).

14 A.M.A., Guides 249.

15 V.M., supra note 11; see Charles H. Potter, 39 ECAB 645 (1988).
5

Dr. Israel found that the medical record lacked findings regarding tinnitus and its impact on 

ADL’s, but he noted that when Dr. Pappas “uses a Tinnitus Impairment Chart to determine that 

there should be a 3 percent tinnitus award added to the calculated binaural loss ... there was no 

discussion of tinnitus in the records and its impact on the activities of daily life. Nevertheless, if 

one adds that 3 percent to the .9 percent binaural loss, one receives a total award of 3.9 percent.” 

The Board finds that the DMA’s statement is unclear regarding whether he agrees with the rating 

of three percent for tinnitus. 

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement 

to compensation, OWCP shares the responsibility in the development of the evidence to see that 

justice is done. As OWCP undertook development of the evidence by referring appellant to both

Dr. Pappas, the second opinion examiner, and Dr. Israel, the DMA, it has the duty to secure an 

appropriate report addressing the relevant issues.16 The Board finds, however, that OWCP did not 

properly obtain a rationalized opinion from the DMA regarding the application of the A.M.A., 

Guides for a rating for tinnitus. 

The case must therefore be remanded to OWCP for clarification. Following this and any 

necessary further development, OWCP shall issue a de novo decision relative to the extent and 

degree of appellant’s hearing impairment.

CONCLUSION

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

 

16 D.M., Docket No. 17-1832 (issued March 14, 2018); PeterC. Belkind, 56 ECAB 580 (2005).
6

ORDER

IT IS HEREBY ORDERED THAT the December 12, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

consistent with this decision of the Board. 

Issued: October 17, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy 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