United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.S., Appellant

and

DEPARTMENT OF THE ARMY, TOOELE 

ARMY DEPOT, Tooele, UT, Employer

__________________________________________

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Docket No. 17-0344

Issued: February 15, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

On November 29, 2016 appellant filed a timely appeal from a June 2, 2016 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards

assigned Docket No. 17-0344.2

On June 25, 2013 appellant, then a 59-year-old former equipment specialist, filed an 

occupational disease claim (Form CA-2) for a hearing disorder (tinnitus) and chronic sinusitis, 

which allegedly arose in the performance of duty on or about February 11, 2013. He attributed his 

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 

C.F.R. § 501.3(e)-(f). One hundred and eighty days from June 2, 2016, the date of OWCP’s last merit decision, was 

November 29, 2016. Because using December 5, 2016, the date the Clerk of the Appellate Boards received the appeal, 

would preclude review of the June 2, 2016 decision, the date of the postmark is considered the date of filing. The date 

of the U.S. Postal Service postmark is November 29, 2016, rendering the appeal timely filed. See 20 C.F.R. 

§ 501.3(f)(1). 

2 The Board notes that following the June 2, 2016 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

hearing condition to workplace noise, which included exposure to loud machines and

pneumatic/electric equipment. Appellant voluntarily retired effective May 3, 2011.

On January 29, 2014 OWCP accepted appellant’s claim for binaural sensorineural hearing 

loss. By separate decision dated January 29, 2014, it found that he was not entitled to a schedule 

award because there was no ratable impairment in either ear. OWCP also declined to accept 

tinnitus.3

Appellant subsequently requested an oral hearing before OWCP’s Branch of Hearings and 

Review. He also submitted additional medical evidence. By decision dated November 25, 2014, 

the hearing representative vacated OWCP’s January 29, 2014 schedule award decision, and 

remanded the case for further medical development regarding whether appellant had a ratable 

hearing loss.

On remand, OWCP referred appellant for a second opinion evaluation. In a January 6, 

2015 report, Dr. Stewart E. Barlow, a Board-certified otolaryngologist and OWCP referral 

physician, diagnosed bilateral high-frequency sensorineural hearing loss and tinnitus, which he 

attributed to appellant’s federal civilian occupational noise exposure. He found 3.4 percent hearing 

impairment, plus an additional 4 percent permanent impairment due to tinnitus, for a total binaural 

hearing impairment of 7.4 percent.

In a January 8, 2015 report, OWCP’s DMA agreed with Dr. Barlow’s 7.4 percent 

permanent impairment rating, but found that the results of the latest audiogram, dated January 6, 

2015, were unrelated to appellant’s accepted occupational noise exposure. He noted that appellant 

retired in May 2011 and did not have a ratable hearing impairment as of December 16, 2013. The 

DMA explained that noise-induced hearing loss stops as soon as the claimant/employee is no 

longer exposed to hazardous workplace noise, which in this case was May 3, 2011. He further 

explained that the December 16, 2013 audiogram results, which showed no ratable impairment,

were representative of appellant’s work-related damage. As such, the increased impairment 

demonstrated on appellant’s January 6, 2015 audiogram was unrelated to his federal workplace 

exposure. 

By decision dated January 15, 2015, OWCP again denied appellant’s claim for a schedule 

award. It explained that the ratable hearing impairment noted on the January 6, 2015 audiogram 

was unrelated to appellant’s employment as he had not been exposed to hazardous workplace 

noise(s) since May 3, 2011. OWCP also declined to expand the claim to include tinnitus as an 

accepted condition.

Appellant timely requested reconsideration and submitted additional medical evidence.4

 

3 OWCP based its findings on the December 16, 2013 evaluation of Dr. Craig W. Anderson, a Board-certified 

otolaryngologist and OWCP referral physician, as well as the January 24, 2014 opinion of its district medical adviser 

(DMA). The DMA explained that appellant was not eligible for a tinnitus rating because there was no ratable hearing 

impairment in either ear as demonstrated by the December 16, 2013 audiogram. 

4

In a March 13, 2015 report, Dr. Barlow indicated that appellant’s hearing loss and tinnitus were due to noise 

exposure encountered in his federal civilian employment. 
3

OWCP subsequently declared a conflict in medical opinion between the DMA and

Dr. Barlow, the second opinion examiner, regarding whether appellant’s tinnitus was causally 

related to his accepted employment exposure. In a January 22, 2016 statement of accepted facts

(SOAF), it noted that the claim had been accepted for “binaural sensorineural hearing loss....” 

OWCP also noted that appellant’s work environment included “exposure to high level noise and 

required use of protective equipment.” It referred appellant to Dr. Justin D. Gull, a Board-certified 

otolaryngologist, to resolve the purported conflict in medical opinion. 

In a May 16, 2016 report, Dr. Gull diagnosed bilateral sensorineural hearing loss and 

bilateral tinnitus. Based on the results of an April 28, 2016 audiogram, he calculated 8.47 percent 

binaural hearing impairment, which included 5 percent impairment due to tinnitus. However,

Dr. Gull concluded that appellant’s hearing loss was not due to noise exposure encountered in his 

federal civilian employment. He explained that preexisting asymmetry in hearing combined with 

presbycusis led to appellant’s hearing loss. In his narrative report, Dr. Gull reiterated his belief 

that appellant’s “symptoms” and his “impairment” were “unrelated to his employment.”

In a May 27, 2016 report, another DMA reviewed Dr. Gull’s findings and calculated 8.1 

percent binaural hearing impairment, which included 4 percent impairment due to tinnitus.5

By decision dated June 2, 2016, OWCP denied modification of its January 15, 2015 

schedule award decision. It found that Dr. Gull, the “referee examiner,” represented the weight of 

the medical evidence, which demonstrated that there was no causal relationship between 

appellant’s binaural hearing impairment and his federal employment exposure that ended 

May 3, 2011.6

The Board finds that the case is not in posture for decision regarding appellant’s claimed 

entitlement to a schedule award. OWCP erroneously declared a conflict in medical opinion 

between its DMA and an OWCP referral physician (2nd opinion), Dr. Barlow. As neither physician 

was appellant’s treating physician, OWCP improperly declared a conflict in medical opinion.

7

 

Absent a true conflict in medical opinion, Dr. Gull’s May 16, 2016 opinion cannot be afforded 

determinative weight as an impartial medical evaluation. However, even as a second opinion 

evaluation, Dr. Gull’s finding regarding the cause of appellant’s binaural hearing loss/impairment 

lacks probative value. 

The January 22, 2016 SOAF clearly delineated that appellant’s claim had been accepted 

for employment-related “binaural sensorineural hearing loss....” Dr. Gull ostensibly disagreed 

with OWCP regarding the cause of appellant’s accepted hearing condition. He offered a contrary 

opinion noting that the current hearing loss was due to a combination of age-related change and 

an asymmetry that preexisted his employment. An OWCP referral physician’s findings, be it a 

second opinion or impartial medical evaluation, must be based on the factual underpinnings of the 

 

5

In a June 1, 2016 supplemental report, the DMA recommended hearing aids.

6

In a separate June 2, 2016 decision, OWCP authorized hearing aids. 

7 See 5 U.S.C. § 8123(a); 20 C.F.R. § 10.321(b); S.G., 58 ECAB 383, 387 (2007) (a conflict may only exist between 

an employee’s physician and a physician designated or approved by OWCP); Federal (FECA) Procedure Manual, 

Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.11a (September 2010).
4

claim, as set forth in the SOAF.

8

 The SOAF should be the framework of the referral physician’s 

opinion.9 As Dr. Gull’s May 16, 2016 second opinion evaluation is inconsistent with OWCP’s 

January 22, 2016 SOAF, his opinion on causal relationship is of diminished probative value.10 

Once OWCP undertakes development of the record, it must do a complete job in procuring 

medical evidence that will resolve the relevant issues in the case.11 Because of the above-noted 

deficiencies in Dr. Gull’s report, additional medical development is warranted. Accordingly, the 

June 2, 2016 schedule award decision shall be set aside, and the case remanded for further medical 

development. After such further development as OWCP deems necessary, it shall issue a de novo 

decision regarding appellant’s entitlement to a schedule award.

IT IS HEREBY ORDERED THAT the June 2, 2016 decision of the Office of Workers’

Compensation Programs is set aside, and the case is remanded for further action consistent with 

this order.

Issued: February 15, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.2c 

(September 2009).

9

Id. at Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 3.500.3f and 3.500.4g (June 2015).

10 Id. at Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3a (October 1990).

11 See A.P., Docket No. 17-0813 (issued January 3, 2018); Richard F. Williams, 55 ECAB 343, 346 (2004).