United States Department of Labor

Employees’ Compensation Appeals Board

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G.G., Appellant

and

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer

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Docket No. 19-1084

Issued: October 23, 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

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On April 15, 2019 appellant filed a timely appeal from an April 3, 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.

ISSUE

The issue is whether appellant met his burden of proof to establish binaural hearing loss 

causally related to the accepted factors of his federal employment.

FACTUAL HISTORY

On October 24, 2018 appellant, then a 74-year-old retired sign painter, filed an 

occupational disease claim (Form CA-2) alleging that he sustained bilateral hearing loss and 

 

1

5 U.S.C. § 8101 et seq.
2

tinnitus as a result of exposure to noise while in the performance of duty. He indicated that he first 

became aware of his hearing loss and learned that his hearing loss was employment related on 

June 1, 1993. On the reverse side of the claim form, a supervisor noted that appellant retired on 

September 30, 1993 and was last exposed to conditions alleged to have caused his hearing loss on 

that date. The supervisor stated that appellant had first reported the condition to a supervisor on 

October 17, 2018 and noted that the employing establishment would challenge appellant’s claim. 

OWCP received hearing conservation data, including a reference audiogram dated May 3,

1984 and an audiogram dated May 10, 1993. Using the frequencies of 500, 1,000, 2,000, and 

3,000 Hertz (Hz) a reference audiogram dated May 3, 1984 documented appellant’s hearing as 

follows: 0, 5, 15, and 15 decibels (dBs) in the left ear, and 0, 5, 15, and 40 dBs in the right ear. 

Using the same frequencies, a May 10, 1993 audiogram revealed appellant’s hearing measured as: 

0, 10, 15, and 20 dBs in the left ear and 0, 5, 20, and 50 dBs in the right ear. 

In an audiogram dated July 27, 2018, an audiologist using the same frequencies measured 

appellant’s hearing as follows: 10, 20, 40, and 50 dBs in the left ear and 10, 15, 40, and 55 dBs in 

the right ear. 

In a checklist for filing a federal occupational hearing loss claim, dated July 27, 2018, 

appellant noted that he had worked at the employing establishment from 1968 through 1993. From 

1968 through 1989, he worked as a painter and was exposed to noise from the waterfront, chippers, 

grinders, deck-crawlers, needle guns, cranes, and forklifts for eight hours per day plus overtime 

with safety devices provided and used to protect against noise exposure. From 1989 through 1993, 

appellant worked as a rigger and was exposed to the same sources of noise for up to 14 hours per 

day with safety devices provided and used to protect against noise exposure. From 1994 through 

1997, he worked for a private company as a part-time helper and was exposed to noise from nailing 

guns, heavy equipment, loaders, dump trucks, and graters for up to four hours per day with safety 

devices provided and used to protect against noise exposure. From 1998 through 2015, appellant 

worked for another private company as a truck driver and was exposed to noises from long haul 

trucks without safety devices provided or used. 

In a November 2, 2018 development letter, OWCP informed appellant that he had not 

submitted sufficient medical evidence to establish his claim. It advised him that OWCP would 

schedule a second opinion examination to address this deficiency. 

In a letter dated November 6, 2018, the employing establishment challenged appellant’s 

claim on the bases of timeliness, factual and medical fact of injury, performance of duty, and causal 

relationship. 

On January 11, 2019 OWCP referred appellant to Dr. Edward Treyve, a Board-certified 

otolaryngologist, for otologic examination and audiological evaluation. 

In a January 31, 2019 report, Dr. Treyve reviewed a statement of accepted facts (SOAF), 

the medical evidence of record, and examination findings, diagnosing bilateral sensorineural 

hearing loss and tinnitus. Appellant told Dr. Treyve that he had a rifle that he used recreationally 

since childhood every four to five months while wearing ear protection and a pistol that he shot 

twice a year with ear protection. Dr. Treyve noted that appellant had bilateral sensorineural 
3

hearing loss that he believed was related to occupational noise exposure, recreational noise 

exposure, and presbycusis. He noted that appellant’s hearing remained normal in his left ear 

through his course of employment and that he had not sustained occupational noise-induced 

hearing loss up until retirement in 1993. Dr. Treyve noted that appellant had high-frequency 

hearing loss in the right ear that was present from the start of his federal employment, which 

progressed over the course of employment, but noted that it was highly unlikely that it was related 

to occupational noise exposure, which was always fairly symmetric. He observed that 

deterioration in both ears since 1993 was likely in part related to occupational noise exposure, as 

well as recreational noise exposure and presbycusis. Dr. Treyve opined that appellant’s 

audiometric testing demonstrated hearing levels that were in excess of what would be predicted on 

the basis of presbycusis alone and that workplace exposure was likely of significant intensity and 

duration as to potentially contribute to hearing loss. He indicated that recreational gunfire had 

contributed somewhat to appellant’s hearing loss over the years. Dr. Treyve opined that appellant 

more likely than not sustained occupational noise exposure subsequent to his federal employment 

and that his asymmetric hearing loss throughout employment was likely related to undiagnosed 

medical causes or recreational exposure. Using the frequencies of 500, 1,000, 2,000, and 3,000 

Hz, an audiogram dated January 31, 2019 documented appellant’s hearing as follows: 15, 25, 

40, and 50 dBs in the left ear and 10, 15, 45, and 60 dBs in the right ear. Dr. Treyve checked a 

box indicating that appellant’s sensorineural hearing loss was not due to noise exposure in his 

federal civilian employment. 

In a letter dated February 27, 2019, OWCP requested that Dr. Treyve clarify whether he 

opined if any aspect of appellant’s federal employment may have caused or contributed to 

appellant’s hearing loss. 

Dr. Treyve responded on February 27, 2019 noting that he did not believe that appellant’s 

hearing loss in the right ear was only related to occupational noise-induced causes, as it was 

extremely unlikely that a noisy work environment like a shipyard would affect only one ear. He 

opined that hearing loss subsequent to his retirement in 1993 was related to subsequent 

occupational causes and presbycusis, and that he did not believe that any aspect of appellant’s 

hearing loss was related to federal employment, as evidenced by entirely normal hearing in the left 

ear throughout the course of his federal employment. 

By decision dated April 3, 2019, OWCP denied appellant’s occupational disease claim for 

hearing loss. 

LEGAL PRECEDENT

An employee seeking benefits under FECA2 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 of FECA, that the claim was timely filed within the applicable 

time limitation of FECA,3that an injury was sustained in the performance of duty as alleged, and 

 

2

Id.

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).
4

that any disability or medical 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: (1) a factual statement identifying employment factors 

alleged to have caused or contributed to the presence or occurrence of the disease or condition; 

(2) medical evidence establishing the presence or existence of the disease or condition for which 

compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is

causally related to the identified employment factors.6

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.7 A physician’s opinion as to whether there is a causal relationship 

between the diagnosed condition and the implicated employment factor(s) must be based on a 

complete factual and medical background.8 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty, and must be supported by medical 

rationale that explains the nature of the relationship between the diagnosed condition and 

appellant’s specific employment factor(s).9

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. 

Appellant did not submit medical evidence providing an opinion regarding the cause of his 

alleged binaural sensorineural hearing loss. However, OWCP referred appellant to Dr. Treyve for 

a second opinion evaluation regarding his hearing loss claim. Dr. Treyve concluded that appellant 

did not have sensorineural hearing loss due to his federal employment. In a report dated

January 31, 2019 and a clarification letter dated February 27, 2019, he reviewed the medical record 

and a SOAF, related examination findings, and diagnosed bilateral sensorineural hearing loss and 

tinnitus. Dr. Treyve opined that appellant more likely than not sustained occupational noise 

exposure subsequent to his federal employment and that his asymmetric hearing loss throughout 

employment was likely related to undiagnosed medical causes or recreational exposure. He further 

opined that hearing loss subsequent to appellant’s retirement in 1993 was related to subsequent 

occupational causes and presbycusis, noting that it was extremely unlikely that a noisy work 

 

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

5 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

DeloresC. Ellyett, 41 ECAB 992 (1990).

6

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7 T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8 M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.; Victor J. Woodhams, supra note 6.
5

environment like a shipyard would affect only one ear, and that he did not believe that any aspect 

of appellant’s hearing loss was related to federal employment, as evidenced by normal hearing in 

the left ear throughout the course of his federal employment.

The Board finds that Dr. Treyve’s report dated January 31, 2019 and letter dated 

February 27, 2019 represent the weight of the medical evidence and establish that appellant’s 

sensorineural hearing loss was not due to exposure to noise in the federal workplace. 10 

Dr. Treyve’s opinion is based on a proper factual and medical history as he reviewed current 

audiometric test results and related his findings on examination and testing in support of his 

opinion that appellant’s hearing loss was not due to the exposure to noise in his federal 

employment.

The Board thus finds that the medical evidence of record is insufficient to establish that he 

had sensorineural hearing loss causally related to the accepted factors of his federal employment. 

Appellant has not met his burden of proof.11

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.

 

10 See T.K., Docket No. 19-0074 (issued May 15, 2019); R.B., Docket No. 18-0720 (issued November 13, 2018); 

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

11 See T.K., id.; J.B., Docket No. 17-0984 (issued July 11, 2018); Mary E. Marshall, 56 ECAB 420, 427 (2005).
6

ORDER

IT IS HEREBY ORDERED THAT the April 3, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: October 23, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board