United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.A., Appellant

and

DEPARTMENT OF THE ARMY, TANKAUTOMOTIVE & ARMAMENTS COMMAND, 

ANNISTON ARMY DEPOT, AL, Employer

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Docket No. 19-0747

Issued: September 16, 2019

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 February 11, 2019 appellant filed a timely appeal from a September 24, 2018 merit 

decision and a January 25, 2019 nonmerit 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

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish greater than 

56 percent binaural (both ears) hearing loss, for which he previously received schedule award

 

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

compensation; and (2) whether OWCP properly denied appellant’s request for a review of the 

written record before an OWCP hearing representative as untimely filed pursuant to 5 U.S.C. 

§ 8124(b).

FACTUAL HISTORY

On January 7, 2016 appellant, then a 60-year-old painting worker, filed an occupational 

disease claim (Form CA-2) alleging hearing loss due to factors of his federal employment on or 

about May 1, 2013.3 After developing the factual and medical evidence of record, OWCP 

accepted his claim for binaural sensorineural hearing loss. 

On September 27, 2016 appellant filed a claim for a schedule award (Form CA-7). By 

decision dated November 30, 2016, OWCP granted a schedule award for 55 percent permanent 

binaural hearing loss. The award ran for 110 weeks from May 11, 2016 to June 29, 2018.

An August 20, 2018 audiogram demonstrated testing at the frequencies of 500, 1,000, 

2,000, and 3,000 Hertz (Hz), which revealed the following: right ear -50, 55, 70, and 70 decibels 

(dBs), respectively; and left ear -60, 60, 75, and 75 dBs, respectively. 

On August 23, 2018 Dr. Jeffrey M. Israel, a Board-certified otolaryngologist acting as a 

district medical adviser (DMA), reviewed the August 20, 2018 audiogram and related that the test 

findings were suggestive of a sensorineural hearing loss due, at least in part, to noise-induced 

work-related acoustic trauma. He opined that the audiometric test results were representative of 

appellant’s hearing sensitivity. Utilizing the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),4the DMA calculated that 

appellant had 54.375 percent right monaural hearing loss and 63.75 percent left monaural hearing 

loss for a total binaural hearing loss of 55.9 percent. He noted that appellant had previously 

received an award of 54.7 percent for binaural hearing loss. The DMA determined that 55.9 

percent minus 54.7 percent was equal to 1.2 percent, the adjusted award. He reported that appellant 

had reached maximum medical improvement (MMI) as of the date of his latest audiogram.

In a September 17, 2018 report, Mary Ann Gieger, a hearing instrument specialist, noted 

that on August 20, 2018 appellant underwent an audiogram which revealed 58 percent pure-tone 

average for the right ear and 65 percent pure-tone average for the left ear. The report also included 

the results of appellant’s August 20, 2018 audiogram, which Ms. Gieger signed.

OWCP referred the case back to its DMA to consider Ms. Gieger’s September 17, 2018 

report. In a September 19, 2018 supplemental report, the DMA indicated that the August 20, 2018 

audiogram was the same one he evaluated in his prior report. He reiterated his previous finding 

of 55.9 percent binaural hearing loss, with an August 20, 2018 date of MMI.

 

3 The employing establishment provided occupational noise exposure data covering the period 2003 through 2013. 

It also controverted the claim arguing that appellant’s hearing loss was not likely caused by his employment exposure. 

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

By decision dated September 24, 2018, OWCP granted appellant a schedule award for an 

additional one percent permanent binaural hearing loss, for a total binaural hearing loss of 56 

percent. The additional one percent award covered a two-week period from August 20 to 

September 2, 2018.

On January 10, 2019 appellant requested a review of the written record by a representative 

of OWCP’s Branch of Hearings and Review.

By decision dated January 25, 2019, an OWCP hearing representative determined that 

appellant was not entitled to a review of the written record as a matter of right because his request 

was untimely filed. He also denied a discretionary hearing finding that the contested issue could 

equally well be addressed by appellant requesting reconsideration and providing new evidence or 

argument to establish that he was entitled to a greater schedule award for his binaural hearing loss. 

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA5and its implementing regulations6set forth the 

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

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

the manner by which the percentage loss of a member, function or organ 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 under the law, the Board has authorized the use of a 

single set of tables so that there may be a uniform standards applicable to all claimants. OWCP 

evaluates the degree of permanent impairment according to the standards set forth in the specified 

edition of the A.M.A., Guides.7 Effective May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).8 The Board has approved 

OWCP’s use of the A.M.A., Guides for the purpose of determining the percentage loss of use of a 

member of the body for schedule award purposes.9

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

A.M.A., Guides.10 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, 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 dB result in no impairment in the ability to hear 

 

5 5 U.S.C. §§ 8101-8193, 8107.

6 20 C.F.R. § 10.404.

7

Id. 

8 A.M.A., Guides (6th ed. 2009); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 

3.700, Exhibit 1 (January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and

Permanent Disability Claims, Chapter 2.808.5a (March 2017).

9 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10 A.G., Docket No. 17-1778 (issued December 18, 2018); E.S., 59 ECAB 249 (2007); Reynaldo R. Lichetenberger, 

52 ECAB 462 (2001).
4

everyday speech under everyday conditions.11 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.12

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish greater than 56 

percent binaural hearing loss, for which he previously received schedule award compensation.

On August 23, 2018 a DMA reviewed the August 20, 2018 audiogram and opined that 

appellant’s hearing loss was due, at least in part, to his workplace noise exposure. Testing for the 

right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed decibel losses of 50, 

55, 70, and 70, which totaled 245 dBs. Appellant’s left ear hearing losses were 60, 60, 75, and 75, 

which totaled 270. The right ear hearing loss resulted in an average loss of 61.25 (245 ÷ 4) dBs, 

and the left ear loss averaged 67.5 (270 ÷ 4) dBs. After subtracting the 25 dB fence, the right ear 

loss was 36.25, which was then multiplied by 1.5 to equal 54.38 percent hearing loss for the right 

ear. Applying the same formula to the left ear (67.5 – 25 = 42.5 x 1.5), resulted in 63.75 dBs. The 

DMA then multiplied the 54.38 percent monaural hearing loss for the right ear by 5, added the 

63.75 percent left ear monaural hearing loss, divided the total by 6 as directed by the A.M.A., 

Guides, resulting in 55.9 percent binaural hearing loss.13 The Board finds that the DMA properly 

calculated the percentage of impairment for appellant’s binaural hearing loss in accordance with 

the A.M.A., Guides.

14

 OWCP rounded-up the rating to the nearest whole number (56 percent), 

and reduced the current total permanent impairment by the prior binaural hearing loss award (55 

percent).15

The Board finds that there is no current medical evidence of record supporting that 

appellant has a ratable hearing loss greater than the 56 percent binaural hearing loss previously 

awarded. It is appellant’s burden of proof to submit evidence of additional hearing loss under 

OWCP’s standardized procedures for rating hearing impairment than that previously awarded 

under OWCP’s standardized procedures for rating hearing loss.16 He has not submitted such 

evidence in support of his claim.

 

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

12 Id. at 251.

13 R.F., Docket No. 18-0810 (issued February 27, 2019); W.C., Docket No. 18-0290 (issued July 13, 2018).

14 A.G., supra note 10.

15 The Board notes OWCP’s policy to round the calculated percentage of impairment to the nearest whole number. 

See V.M., Docket No. 18-1800 (issued April 23, 2019); J.H., Docket No. 08-2432 (issued June 15, 2009); Robert E. 

Cullison, 55 ECAB 570 (2004). See also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,

Chapter 3.700.3(b) (January 2010).

16 J.W., Docket No. 17-1339 (issued August 21, 2018); J.B., Docket No. 15-1474 (issued March 4, 2016).
5

On appeal appellant alleges that he was entitled to schedule awards for 58 percent hearing 

loss for the right ear and 60 percent hearing loss for the left ear. However, as explained above, the 

DMA properly calculated that appellant had a total binaural hearing loss of 56 percent in 

accordance with the A.M.A., Guides.

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 or increased impairment.

LEGAL PRECEDENT -- ISSUE 2

Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title 

[relating to reconsideration], a claimant for compensation not satisfied with a decision of the 

Secretary under subsection (a) of this section is entitled, on request made within 30 days after the 

date of the issuance of the decision, to a hearing on his [or her] claim before a representative of 

the Secretary.”

17

Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a 

review of an adverse decision by a hearing representative. Initially, the claimant can choose 

between two formats: an oral hearing or a review of the written record.”

18

 The hearing request 

must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the 

date of the decision for which the hearing is sought.19 However, OWCP has discretion to grant or 

deny a request that is made after this 30-day period.20 In such a case, it will determine whether to 

grant a discretionary hearing and, if not, will so advise the claimant with reasons.21

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s January 10, 2019 request for a 

review of the written record before an OWCP hearing representative as untimely filed pursuant to 

5 U.S.C. § 8124(b).

Appellant had 30 days from OWCP’s September 24, 2018 merit decision to request a 

review of the written record before a representative of OWCP’s Branch of Hearings and Review. 

As appellant’s hearing request was dated January 10, 2019, more than 30 days after OWCP’s 

September 24, 2018 decision, it was untimely filed and he was, therefore, not entitled to a review 

 

17 5 U.S.C. § 8124(b)(1).

18 20 C.F.R. § 10.615.

19 Id. at § 10.616(a).

20 See T.L., Docket No. 19-0028 (issued April 26, 2019); G.W., Docket No. 10-0782 (issued April 23, 2010); James 

Smith, 53 ECAB 188, 191-92 (2001).

21 James Smith, id. 
6

of the written record as a matter of right.22 Section 8124(b)(1) is unequivocal on the time limitation 

for requesting a hearing.23

The Board further finds that OWCP properly exercised its discretion in denying appellant’s 

request for a review of the written record by determining that the issue in the case could equally 

well be addressed by requesting reconsideration and submitting new evidence or argument relevant 

to the issue of his schedule award.24 The Board has held that the only limitation on OWCP’s 

authority is reasonableness, and an abuse of discretion is generally shown through proof of 

manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to 

both logic and probable deduction from established facts.25 The Board finds that the evidence of 

record does not indicate that OWCP abused its discretion in its denial of appellant’s untimely 

request for a review of the written record.

Accordingly, the Board finds that OWCP properly denied appellant’s January 10, 2019 

request for a review of the written record as untimely filed pursuant to 5 U.S.C. § 8124(b).26

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish greater than 56 

percent binaural hearing loss, for which he previously received schedule award compensation. The 

Board also finds that OWCP properly denied appellant’s request for a review of the written record 

before an OWCP hearing representative as untimely filed under 5 U.S.C. § 8124(b).

 

22 Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis 

of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings 

and Reviews of the Written Record, Chapter 2.1601.4a (October 2011); see also G.S., Docket No. 18-0388 (issued 

July 19, 2018).

23 5 U.S.C. § 8124(b)(1); see M.K., Docket No. 19-0428 (issued July 15, 2019); R.H., Docket No. 18-1602 (issued 

February 22, 2019); William F. Osborne, 46 ECAB 198 (1994).

24 M.K., id.; M.H., Docket No. 15-0774 (issued June 19, 2015).

25 Id.; Teresa M. Valle, 57 ECAB 542 (2006).

26 Id.; T.L., Docket No. 19-0028 (issued April 26, 2019); R.P., Docket No. 16-0554 (issued May 17, 2016).
7

ORDER

IT IS HEREBY ORDERED THAT the January 25, 2019 and September 24, 2018 

decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: September 16, 2019

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