United States Department of Labor

Employees’ Compensation Appeals Board

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E.C., Appellant

and

DEPARTMENT OF THE NAVY, MARINE 

CORPS RECRUIT DEPOT, Parris Island, SC, 

Employer

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Docket No. 19-1007

Issued: November 8, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 8, 2019 appellant filed a timely appeal from a January 30, 2019 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 following the January 30, 2019 decision, OWCP received additional evidence. 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 a total 

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

FACTUAL HISTORY

On April 10, 2008 appellant, then a 61-year-old materials handler, filed an occupational 

disease claim (Form CA-2) alleging that he developed hearing loss in both ears due to noise 

exposure as factors of his federal employment. On November 19, 2008 OWCP accepted his claim 

for binaural hearing loss. By decision dated December 4, 2008, it granted appellant a schedule

award for 54 percent binaural loss of hearing.

On December 31, 2012 appellant stopped work. On October 8, 2013 he filed a claim for a 

schedule award (Form CA-7) for increased hearing loss. In a February 10, 2014 development 

letter, OWCP noted that as appellant’s hearing loss claim continued to be open for medical 

benefits, he was free to use his entitlement to medical benefits to provide the medical 

documentation needed to establish his increased schedule award claim. Appellant sought medical 

treatment on May 30, 2014 and submitted a report to OWCP. By decision dated February 19, 

2015, OWCP granted him a schedule award for an additional 16 percent binaural hearing loss, for 

a total of 70 percent.

In a report dated June 25, 2018, Monica Wiser, an audiologist, examined appellant due to 

his binaural hearing loss and noted that he had reported a change in his hearing since his last 

evaluation on May 12, 2016. She opined that there was a decrease in his hearing and word 

recognition ability since his last hearing evaluation in 2016.

In a letter dated November 1, 2018, appellant requested a second opinion referral from 

OWCP for evaluation of his binaural loss of hearing. On November 27, 2018 he filed a schedule 

award claim (Form CA-7) for increased hearing loss.

In a December 12, 2018 development letter, OWCP advised appellant of the deficiencies 

of his schedule award claim. It requested additional factual and medical evidence from him and 

provided a list of questions. OWCP directed appellant to forward the development letter to his 

physician. It afforded 30 days for a response. No additional evidence was received.

By decision dated January 30, 2019, OWCP denied appellant’s claim for an additional 

schedule award finding that he had not submitted medical evidence establishing an additional loss 

of hearing beyond the 70 percent binaural loss of hearing for which he had previously received 

schedule awards.
3

LEGAL PRECEDENT

The schedule award provision of FECA,3and its implementing federal regulations,4set 

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. However, 

FECA does not specify the manner in which the percentage of loss shall be determined. For 

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.6

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

A.M.A., Guides.

7

 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hertz (Hz), the losses at 

each frequency are added up and averaged. Then, the fence of 25 decibels (dBs) is deducted 

because, as the A.M.A., Guides point out, losses below 25 dBs result in no impairment in the 

ability to hear everyday speech under everyday conditions. 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, then added to the greater loss, and the total is divided by six to arrive at the 

amount of binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard 

for evaluating hearing loss.8

A claim for an increased schedule award may be based on new employment exposure; 

however, additional occupational exposure is not a prerequisite. A claim for an increased schedule 

award based on additional exposure constitutes a new claim.9 Absent additional employment 

exposure, an increased schedule award may also be based on evidence demonstrating that the 

progression of an employment-related condition has resulted in greater permanent impairment than 

previously calculated.10 The Board has long recognized that, if a claimant’s employment-related 

hearing loss worsens in the future, he may apply for an additional schedule award for any increased 

permanent impairment. The Board has also recognized that a claimant may be entitled to a 

schedule award for increased hearing loss, even after exposure to hazardous noise has ceased, if 

 

3 5 U.S.C. § 8107.

4 20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6 Federal (FECA) Procedure Manual, Part 2 -- Claims , Schedule Awards and Permanent Disability Claims, Chapter 

2.808.5.a (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

7 A.M.A., Guides 248-51 (6th ed. 2009).

8 See V.M., Docket No. 18-1800 (issued April 23, 2019).

9 V.G., Docket No. 17-0494 (issued July 6, 2018); R.A., Docket No. 16-1218 (issued November 10, 2016); James R. 

Hentz, 56 ECAB 573 (2005); Paul Fierstein, 51 ECAB 381 (2000).

10 V.G., id.; R.A., id.; Linda T. Brown, 51 ECAB 115 (1999).
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causal relationship is supported by the medical evidence of record.11 The Board has cautioned 

against an OWCP medical adviser providing a blanket unrationalized statement that hearing loss 

does not progress following the cessation of hazardous noise exposure.12

OWCP’s procedures require referral to a second opinion physician in hearing loss cases 

when the attending physician’s examinations and reports do not provide the specific evidence that 

OWCP requires for adjudication13 in compliance with the specifications outlined in Federal 

(FECA) Procedure Manual Chapter 3.0600.

14

 This provision specifically requires both an 

audiological and otological examination by appropriately certified medical professionals.

15

ANALYSIS

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

Appellant submitted additional evidence from Ms. Wiser dated June 25, 2018 opining that 

his hearing loss had increased. While this report is insufficient to meet appellant’s burden of proof, 

it raises an uncontroverted inference of a worsening of his accepted condition and is sufficient to 

require OWCP to undertake further development of appellant’s claim.16 

In keeping with its procedures, OWCP should have referred appellant for a second opinion 

evaluation by an otolaryngologist as well as an additional audiogram. Instead, it failed to develop 

and evaluate the evidence that appellant submitted in support of his claim for an additional 

schedule award.17 Further development is therefore required to determine whether appellant is 

entitled to an additional schedule award for increased hearing loss. 

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. 

While appellant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence to see that justice is done.18

Accordingly, the Board will remand the case to OWCP to obtain a second opinion 

evaluation from an otolaryngologist, which includes audiometric testing, for a fully-rationalized 

opinion regarding whether appellant developed increased hearing loss as a result of his federal 

 

11 R.B., Docket No. 16-1863 (issued April 3, 2017).

12 E.R., Docket No. 16-1529 (issued March 3, 2017); Adelbert E. Buzzell, 34 ECAB 96 (1982).

13 Supra note 6 at Chapter 2.810.9.b(2) (June 2015). 

14 Supra note 6 at Chapter 3.600 Exhibit 4-6 (September 1996). 

15 Id.

16 J.F., Docket No. 16-1225 (issued November 21, 2016); John J. Carlone, 41 ECAB 354, 358-60 (1989).

17 W.H., Docket No. 14-1661 (issued December 24, 2014).

18 P.L., Docket No. 17-0355 (issued June 27, 2018).
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employment noise exposure. Following this and any other further development deemed necessary, 

OWCP shall issue a de novo decision on appellant’s schedule award claim.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the January 30, 2019 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: November 8, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board