United States Department of Labor

Employees’ Compensation Appeals Board

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R.B., Appellant

and

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD &

INTERMEDIATE MAINTENANCE FACILITY, 

Bremerton, WA, Employer

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Docket No. 19-1466

Issued: April 9, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 26, 2019 appellant filed a timely appeal from March 21 and May 8, 2019 merit 

decisions 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.

ISSUES

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

hearing loss for schedule award purposes; and (2) whether OWCP properly exercised its discretion 

in denying authorization for a right-side hearing aid.

 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On December 4, 2018 appellant, then an 87-year-old retired tool and parts attendant, filed 

an occupational disease claim (Form CA-2) alleging that he developed hearing loss due to factors 

of his federal employment.2 He indicated that he first became aware of his hearing loss and its 

relationship to his federal employment on March 3, 1988.

Appellant submitted employment-related audiometric reports providing the results of 

audiometric testing from January 24, 1966 to March 3, 1988. The March 3, 1988 results of 

audiometric testing for the right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 Hertz 

(Hz) revealed decibel losses of 10, 5, 5, and 20, respectively. Testing for the left ear at the same 

frequency levels revealed decibel losses of 25, 15, 20, and 30, respectively. 

In a development letter dated December 13, 2018, OWCP requested that the employing 

establishment review appellant’s claim and provide comments from a knowledgeable supervisor 

regarding appellant’s employment-related exposure to hazardous noise. 

In an undated summary of occupational exposure to noise, the employing establishment

noted that, from May 30, 1971 until June 2, 1989, appellant worked as a tool and parts attendant. 

The background sound level range of the ship work area was measured as 80 to 85 decibels (dBs)

continuously, while the background sound level range of the shop work area was measured as 70

to 80 dBs continuously.

OWCP subsequently prepared a statement of accepted facts (SOAF) and referred appellant 

for a second opinion examination. 

In a February 28, 2019 report, Dr. Edward Treyve, a Board-certified otolaryngologist 

serving as an OWCP second opinion physician, noted appellant’s history of noise exposure during 

his federal employment. He also examined appellant, obtained a current audiogram, and reviewed 

the results of appellant’s previous audiograms from January 24, 1966 through October 10, 2018. 

Dr. Treyve advised that the ear canals were normal, while the tympanic membranes were scarred. 

He noted that the latest audiometric testing, on February 28, 2019, revealed moderate-tomoderately-severe sensorineural hearing loss on the right with moderate-to-profound 

sensorineural hearing loss on the left. Dr. Treyve noted that review of appellant’s audiometry 

results from January 24, 1966 through March 3, 1988 revealed high-frequency hearing loss 

involving 4,000 to 6,000 Hz in the right ear and 3,000 to 6,000 Hz in the left ear, resulting in a 

deterioration of hearing at 4,000 Hz in both ears over the course of employment. Audiometry 

results from October 10, 2018 revealed moderate-to-severe binaural hearing loss, worse on the left 

than the right. Dr. Treyve diagnosed binaural hearing loss. He indicated that deterioration in 

hearing over the course of employment was in excess of what would have been predicted on the 

basis of presbycusis alone, and workplace exposures were of significant intensity and duration to 

have contributed to appellant’s hearing loss. Dr. Treyve calculated that, under the sixth edition of 

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

 

2 Appellant voluntarily retired effective June 2, 1989.
3

Guides),

3 appellant had a binaural hearing impairment of 46.3 percent, with monaural impairments 

of 61.9 percent on the left and 43.1 percent on the right. He recommended binaural amplification, 

the need for which was, in part, related to the combination of occupational noise exposure and 

presbycusis. Dr. Treyve explained that, based on the results of his industrial audiometry from 

1988, amplification would have been recommended only for the left ear at that time. 

By decision dated March 21, 2019, OWCP accepted appellant’s claim for binaural hearing 

loss. It found that the medical evidence of record established that he would benefit from a hearing 

aid for the left ear only. Appellant was informed that he could file a claim for a schedule award 

and/or wage-loss compensation. 

On April 4, 2019 appellant filed a claim for a schedule award (Form CA-7). 

OWCP forwarded the case, including Dr. Treyve’s February 28, 2019 second opinion 

evaluation and audiogram, to a district medical adviser (DMA) for an assessment of the extent, if

any, of appellant’ binaural hearing loss.

In an April 22, 2019 report, Dr. Stephen Maturo, a Board-certified otolaryngologist serving 

as the DMA, reviewed the otologic and audiologic testing performed by Dr. Treyve and applied 

OWCP’s standardized procedures to his evaluation. He noted that in 1966 appellant had highfrequency hearing loss, worse in the left ear than the right ear, and that over the next decade this 

became a severe loss in the left ear and a moderate loss in the right ear. From 1976 through 1988 

appellant’s hearing loss remained stable, and he retired in 1989. Dr. Maturo found zero percent 

binaural hearing loss based upon the hearing testing from 1988, noting that appellant had retired 

in 1989, and thus hearing tests after that time period should not be used to calculate hearing loss. 

He indicated that occupational hearing loss does not progress once a person is removed from the 

noise environment. Dr. Maturo disagreed with Dr. Treyve’s findings regarding the extent of 

appellant’s ratable hearing loss noting that the rating should be based on appellant’s 1988 

audiogram data.

By decision dated May 8, 2019, OWCP denied appellant’s schedule award claim. It

explained that while the claim had been accepted for employment-related hearing loss, based upon 

the 1988 audiogram appellant had no ratable hearing loss. OWCP noted the DMA’s comment that 

as appellant retired in 1989, his impairment rating should be based on the 1988 audiogram data, 

as occupational hearing loss does not progress once one is removed from a loud noise environment. 

LEGAL PRECEDENT -- ISSUE 1

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 by which the percentage loss of a member, function, or organ shall be 

 

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

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.
4

determined. To ensure consistent results and equal justice under the law, good administrative 

practice requires the use of uniform standards applicable to all claimants. Through its 

implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for 

evaluating schedule losses.6 As of May 1, 2009, schedule awards are determined in accordance 

with the sixth edition of the A.M.A., Guides (2009).7

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. 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 

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

evaluating hearing loss.9

Regarding progression of hearing loss, OWCP’s procedures provide, that noise-induced 

hearing loss does not typically progress after exposure to noise ceases. A claimant with an 

audiogram showing less than a 25-dB loss soon after exposure ceases and a second audiogram 

showing a ratable loss may be denied if a DMA provides a well-reasoned opinion. Other benefits 

remain payable if any employment-related hearing loss exists.10

ANALYSIS -- ISSUE 1

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

OWCP referred appellant for a second opinion evaluation with Dr. Treyve, who obtained 

audiometric data on February 28, 2019. In his February 28, 2019 report, Dr. Treyve determined 

that appellant sustained work-related binaural hearing loss and calculated binaural hearing 

impairment of 46.3 percent, with monaural impairments of 61.9 percent on the left, and 43.1 

percent on the right under the sixth edition of the A.M.A., Guides. 

OWCP’s DMA, Dr. Maturo, disagreed with Dr. Treyve, noting that occupational hearing 

loss does not progress once a person is removed from the source of noise. He concluded that based 

 

6

Id. B.B., Docket No. 19-1491 (issued February 3, 2020); see also Ronald R. Kraynak, 53 ECAB 130 (2001).

7

See 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).

8

See A.M.A., Guides 250.

9 V.M., Docket No. 18-1800 (issued April23, 2019); E.S., 59 ECAB 249 (2007); Reynaldo R. Lichetenberger, 52 

ECAB 462 (2001).

10 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January

2010); W.H., Docket No. 13-1470 (issued January 6, 2014).
5

on appellant’s March 3, 1988 audiogram, he had no ratable hearing loss. As previously noted, a 

DMA’s opinion that hearing loss due to hazardous noise exposure does not progress after noise

exposure ceases must be supported by medical rationale.11 The Board finds, however, that the 

DMA merely concluded that hearing loss does not progress after exposure to hazardous noise ends. 

The DMA did not offer a rationalized medical opinion explaining why appellant’s hearing loss 

progression was not compensable, given the factual and medical evidence of record.12 

Further, there is evidentiary support in the record, based upon the report of Dr. Treyve, 

OWCP’s second opinion physician, that the progression of appellant’s hearing loss after 1989 

should be compensable. The Board has recognized that a claimant may be entitled to a schedule 

award for hearing loss, even after exposure to hazardous noise has ceased, if causal relationship is 

supported by the medical evidence of record.13 

When a DMA fails or neglects to provide rationale for a percentage of impairment 

specified, OWCP should request a clarification or supplemental report from the DMA.

14

 The 

Board finds that OWCP failed to request a clarification or supplemental report containing 

necessary rationalization from the DMA as to whether appellant had a progression of sensorineural 

hearing loss after 1989 due to his accepted employment-related hearing loss based upon the 

medical evidence of recording including the report of Dr. Treyve. 

On remand OWCP should request a supplemental report from the DMA which addresses,

with the necessary medical rationale, whether appellant sustained a progression of hearing loss 

due to the accepted employment injury. Following this and such further development as deemed 

necessary, OWCP shall issue a de novo decision.

LEGAL PRECEDENT -- ISSUE 2

Section 8103(a) of FECA provides that the United States shall furnish to an employee who 

is injured while in the performance of duty the services, appliances, and supplies prescribed or 

recommended by a qualified physician, which the Secretary of Labor considers likely to cure, give 

relief, reduces the degree, or the period of any disability, or aid in lessening the amount of any 

monthly compensation.15 OWCP must therefore exercise discretion in determining whether the 

particular service, appliance, or supply is likely to affect the purposes specified in FECA. 16

 

11 Id.;see also E.C., Docket No. 19-1007 (issued November 8, 2019; Adelbert E Buzzell, 34 ECAB 96 (1982).

12 Id. 

13 See E.R., Docket No. 16-1529 (issued March 3, 2017); Adelbert E. Buzzell, supra note 11.

14 Supra note 7at 2.808.6.f(2)(a).

15 See J.W., Docket No. 16-0231 (issued March 10, 2016); Joshua A. Holmes, 42 ECAB 231, 236 (1990).

16 5 U.S.C. § 8103.
6

Following medical evaluation of a claim, if the hearing loss is determined to be nonratable 

for schedule award purposes, other benefits such as hearing aids may still be payable if any 

employment-related hearing loss exists.17

ANALYSIS -- ISSUE 2

The Board finds that OWCP abused its discretion in denying appellant’s request for a rightside hearing aid.

18

The Board has held that, following medical evaluation of a claim, if the hearing loss is 

determined to be nonratable for schedule award purposes, other benefits such as hearing aids may 

still be provided if any causally related hearing loss exists.19 Dr. Treyve’s February 28, 2019 report 

recommended binaural amplification, the need for which was in part related to the combination of 

occupational noise exposure and presbycusis. Dr. Treyve explained that based on industrial 

audiometry in 1988, amplification would have been recommended only for the left ear. However,

as previously noted, OWCP’s procedures provide that other benefits are still payable if any 

employment related hearing loss exists, even if progression of hearing loss after exposure to 

hazardous noise ends was not related to the accepted exposure.20

Dr. Treyve recommended bilateral amplification based in part on appellant’s occupational 

noise exposure, and the DMA did not offer any opinion disputing appellant’s need for bilateral 

hearing aids. The Board therefore finds that OWCP abused its discretion in denying appellant’s 

request for a right-side hearing aid. Upon return of the case record, OWCP shall authorize a rightside hearing aid.

CONCLUSION

The Board finds that the case is not in posture for decision regarding whether appellant met 

his burden of proof to establish a ratable hearing loss, warranting a schedule award. The Board 

also finds that OWCP abused its discretion in denying a right-side hearing aid.

 

17 J.M., Docket No. 16-0526 (issued May 13, 2016); see F.D., Docket No. 10-1175 (issued January 4, 2011).

18 See J.W., supra note 15; R.N., Docket No. 13-284 (issued July 3, 2013).

19 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies,Chapter 3.400.3(d)(2) 

(October 1995); J.W., supra note 15; Raymond VanNett, 44 ECAB 480 (1993).

20 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010); W.H., Docket No. 13-1470 (issued January 6, 2014).
7

ORDER

IT IS HEREBY ORDERED THAT the March 21, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed in part regarding the denial of the right-sided 

hearing aid. 

IT IS FURTHER ORDERED THAT the May 8, 2019 decision is set aside and this case 

is remanded for further proceedings consistent with this decision of the Board.

Issued: April 9, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board