United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.U., Appellant

and

DEPARTMENT OF THE ARMY, ANNISTON 

ARMY DEPOT, Anniston, AL, Employer

__________________________________________

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Docket No. 20-0172

Issued: November 3, 2020

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 16, 2019 appellant, through counsel, filed a timely appeal from an October 10, 

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

ISSUE

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

related to the accepted factors of his federal employment.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are as follows. 

On August 2, 2017 appellant, then a 58-year-old small arms repairer, filed an occupational 

disease claim (Form CA-2) alleging an employment-related hearing loss. He asserted that he had 

been working around noise every day and had not been able to hear or understand his coworkers. 

Appellant noted that he first became aware of his claimed condition and its relation to his federal 

employment on March 1, 2013. He did not stop work. 

Appellant submitted an undated document describing his jobs at the employing 

establishment. He indicated that he worked there as a forklift operator from December 26, 2007 

to August 17, 2008, but he did not reference his exposure to noise while working in this job. 

Appellant noted that he worked as a sandblaster from August 17, 2008 to March 28, 2010 and was 

exposed to noise from blasting machines, sanding tables, tumblers, and sanding machines. He 

worked as a small arms repairer from March 28, 2010 to the present and was exposed to noise 

from hammers, impact wrenches, screwdrivers, punches, chisels, grinders, and other tools. 

Appellant advised that he utilized ear protection in the form of earplugs while working as a 

sandblaster and small arms repairer.4

In separate undated document, appellant indicated that he worked as a supply technician in

the U.S. Army from December 1977 to October 10, 1979 at which time he was exposed to noise

from M16 rifles and hand grenades. Between 1986 and 2002, he worked for private employers in

various positions, including as a nursing assistant, supervisor for a food manufacturing company, 

truck loader/unloader, and sheriff’s deputy.

In a July 12, 2017 letter, Dr. Juan C. Diaz, a Board-certified occupational medicine

physician and the medical director of an employing establishment health clinic, and Kerri

Klingsels, the chief audiologist of an employing establishment hospital, indicated that appellant

was exposed to noise while working at the employing establishment from 2008 to 2017. The 

officials reported that an audiological evaluation revealed that appellant had a sensorineural 

hearing loss which, based on the degree and configuration of the audiogram, was likely caused by 

a combination of hazardous noise exposure and age-related hearing changes. They noted that, 

 

3 Docket No. 18-1480 (issued February 6, 2019).

4

In a December 8, 2016 document, appellant indicated that he worked as a small arms repairer for nine hours per 

day, five days per week. In a December 12, 2016 document, he noted that he started wearing ear protection at work 

on August 17, 2008 his first day of work as a sandblaster. In an undated document, appellant described the incidents 

in March 2013 which brought about his realization that he had an employment-related hearing loss.
3

because he acknowledged wearing hearing protection at work when exposed to hazardous noise, 

it was unlikely that the changes in hearing noted on his hearing examinations were caused by 

employment-related hazardous noise exposure while working at the employing establishment. The 

officials noted that the noise exposure levels at the employing establishment, as detailed in an 

attached document, did not take into consideration the wearing of hearing protection. Therefore, 

appellant’s noise exposure levels would have been at least 15 decibels (dBs) lower than those listed 

on the document when he wore hearing protection. The officials noted, “In summary, [appellant’s] 

noise exposure history and hearing protection usage indicate a lack of duration of exposure to high 

intensity noise for a hearing loss to be likely caused by noise from ... employment” at the 

employing establishment. 

In an August 11, 2017 development letter, OWCP requested that appellant submit 

additional evidence in support of his occupational disease claim. It requested that he complete and 

return an attached questionnaire which posed various questions regarding his exposure to 

hazardous noise at work. In a letter of even date, OWCP also requested additional information 

from the employing establishment. It afforded both parties 30 days to respond.

On September 29, 2017 appellant submitted his August 29, 2017 responses to the

development questionnaire. He noted that he continued to be exposed to hazardous noise at work 

and advised that he did not have hobbies which involved noise exposure. Audiograms obtained 

by audiologists on December 11, 2007, July 11, 2014, January 7 and September 16, 2015, and 

October 3, 2016 were added to the record. The audiograms were not cosigned by physicians. The 

July 11, 2014 and October 3, 2016 audiograms noted that the results showed binaural highfrequency sensorineural hearing loss in both ears. 

In September 2017, OWCP referred appellant for a second opinion examination with

Dr. Howard Goldberg, a Board-certified otolaryngologist. It requested that Dr. Goldberg conduct

a comprehensive audiologic evaluation and provide an opinion regarding whether appellant had 

hearing loss due to exposure to hazardous noise at work. OWCP provided Dr. Goldberg with a

statement of accepted facts that provided a detailed discussion of the hazardous noise to which 

appellant was exposed while working for the employing establishment as a sandblaster and small 

arms repairer.

In an October 17, 2017 report, Dr. Goldberg recounted appellant’s factual and medical

history, including the course of his reported hearing problems and the history of audiogram testing

(including the testing from 2007). He reported the findings of the audiologic evaluation he

conducted on October 17, 2017 noting that the examination of appellant’s bilateral canals and

drums was normal (including drum mobility) and that bilateral basic fork testing was normal.

Dr. Goldberg noted that audiogram testing for the left ear at the frequency levels of 500, 1,000,

2,000, and 3,000 Hertz (Hz) revealed dB losses of 20, 30, 30, and 40, respectively. Audiogram 

testing for the right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed dB

losses of 25, 30, 30, and 35, respectively. Dr. Goldberg diagnosed mild high-frequency 

sensorineural hearing loss in both ears, with normal speech recognition threshold, and tinnitus in 

both ears. He noted that mild bilateral hearing loss was present at the start of appellant’s federal 

employment and indicated that appellant wore hearing protection during such employment. 

Dr. Goldberg opined that appellant’s current mild hearing loss was consistent with age-related loss 
4

and checked a box indicating that appellant’s hearing loss was not due, in part or all, to noise 

exposure in his federal employment. He recommended that appellant continue with hearing aids.

By decision dated October 24, 2017, OWCP denied appellant’s hearing loss claim, finding 

that the medical evidence of record was insufficient to establish hearing loss causally related to the 

accepted employment exposure. It afforded the weight of the medical evidence to second opinion 

physician Dr. Goldberg, who determined in his October 17, 2017 report that appellant had not 

developed employment-related hearing loss. 

On November 17, 2017 appellant requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review.

During the hearing, held on April 16, 2018 appellant testified regarding his exposure to 

hazardous noise at work and the progression of his hearing loss. He noted that he generally wore 

ear plugs while operating noisy tools at work, but advised that he could hear some noise while 

doing so. Counsel argued that Dr. Goldberg’s opinion that appellant did not have employmentrelated hearing loss was not supported by adequate medical rationale.

By decision dated June 27, 2018, OWCP’s hearing representative affirmed OWCP’s 

October 24, 2017 decision. She indicated that the weight of the medical opinion evidence with 

respect to the cause of appellant’s hearing loss continued to rest with the well-rationalized opinion 

of Dr. Goldberg, OWCP’s referral physician.

Appellant appealed his case to the Board and, by decision dated February 6, 2019,5the 

Board affirmed the June 27, 2018 hearing decision. The Board found that the weight of the 

medical opinion evidence was represented by the thorough, well-rationalized opinion of

Dr. Goldberg, OWCP’s referral physician. 

On July 25, 2019 appellant, through counsel, requested reconsideration of the merits of his 

claim. 

In support thereof, appellant submitted a June 11, 2019 report from Dr. Morton Goldfarb, 

a Board-certified otolaryngologist, who noted that appellant reported working at the employing 

establishment and had previously served in the military where he was exposed to loud machine

gunfire. He advised that appellant reported that his job required working on 50-caliber machine 

guns, including rebuilding, testing, and firing them to make sure the mechanisms were correct. 

Dr. Goldfarb indicated that, although he did not have access to a hearing test taken prior to 

appellant’s working at the employing establishment, he could say that appellant’s bilateral hearing 

was “beyond what we would consider normal” for a person of age 60. He noted that his impression 

was that appellant’s hearing loss had been directly affected by appellant’s occupation at the 

employing establishment, including exposure to machine gunfire, and indicated that he would

definitely say that the exposure to machine gunfire at work was “the culprit in giving rise to the 

 

5 Supra note 3.
5

hearing loss.”

6

 Dr. Goldfarb noted that appellant had hearing protection on when he was exposed 

to noise at work and indicated, “That could be a deciding factor indicating that perhaps exposure 

to the noise itself was not the culprit at the time that this was done.” He advised that he could not 

provide a definitive answer on causation given that he did not have access to a hearing test taken 

prior to appellant’s working at the employing establishment and he noted that “without the hearing 

protection in, I am sure [appellant’s] noise level was beyond what is acceptable.” Dr. Goldfarb 

indicated that the report of a 50-caliber machine gun was extremely loud even with hearing 

protection and noted, “I am not sure that the muffler hearing devices that [appellant] wore were 

adequate in stopping this sound from penetrating the inner ear and giving rise to a nerve hearing 

loss which he has.” He further noted that appellant drove forklifts, which were very noisy, and 

advised that he reported not wearing hearing protection while driving them. Dr. Goldfarb 

indicated, “Please see if you can give [appellant] all consideration for getting some compensation 

for this hearing loss that he has had from his occupation.” He attached a June 11, 2019 audiogram 

which he had obtained.

In a July 16, 2019 supplemental report, Dr. Goldfarb thanked counsel for sending him

previous audiometric evaluations of appellant. He advised that one of the top audiologists in his 

office interpreted them as showing a significant drop in appellant’s hearing between the

October 17, 2017 and June 11, 2019 evaluations. Dr. Goldfarb noted that there definitely was a 

decrease in hearing acuity from the initial examination to the present time, and advised counsel 

that he would send him copies of the audiograms which the audiologist had plotted from 2007 to 

2017, as well as from 2017 to 2019. He noted that one could see the significant differences in 

appellant’s audiometric perception thresholds. Dr. Goldfarb indicated that he did not have this

information previously and again noted that he would send counsel copies of the audiograms which 

contained the plotting. He attached a previously submitted October 17, 2017 audiogram (obtained 

by Dr. Goldberg, OWCP’s referral physician) and another copy of the June 11, 2019 audiogram 

which he had obtained. 

By decision dated October 10, 2019, OWCP denied modification, finding that appellant 

had not met his burden of proof to establish hearing loss causally related to factors of his federal 

employment. 

LEGAL PRECEDENT

An employee seeking benefits under FECA 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 period of FECA,7and that an injury was sustained in the performance of duty as 

alleged, and that any disability or medical condition for which compensation is claimed is causally 

 

6 Dr. Goldfarb advised that appellant’s discrimination scores to determine what words were being presented were

very good in the right ear (better than in the left ear) and indicated that appellant could benefit from amplification 

devices.

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

153 (1989).
6

related to the employment injury.8 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.9

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (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.10

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.11 A physician’s opinion on whether there is causal relationship 

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

complete factual and medical background.12 Additionally, the physician’s opinion must be 

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

rationale explaining the nature of the relationship between the diagnosed condition and appellant’s 

specific employment factor(s).13

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish hearing loss 

causally related to factors of his federal employment.

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s June 27, 2018 decision because the Board 

considered that evidence in its February 6, 2019 decision and found it insufficient to establish 

causal relationship. The Board notes that findings made in prior Board decisions are res judicata 

absent any further review by OWCP under section 8128 of FECA.14 In its February 6, 2019 

decision, the Board found that OWCP had properly determined that the weight of the medical 

opinion evidence was represented by the thorough, well-rationalized October 17, 2017 opinion of

Dr. Goldberg, OWCP’s referral physician, who opined that appellant had not sustained a hearing 

 

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

ECAB 312 (1988).

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

Delores C. Ellyett, 41 ECAB 992 (1990).

10 R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. 

Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

11 W.M., Docket No. 14-1853 (issued May 13, 2020); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 

238 (1996).

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

13 Id.; Victor J. Woodhams, supra note 10.

14 See B.B., Docket No. 17-0294 (issued May 11, 2018).
7

loss due to factors of his federal employment. Dr. Goldberg explained that appellant’s mild 

hearing loss was consistent with age-related loss and found that appellant’s hearing loss was not 

due, in part or all, to noise exposure in his federal employment. 

On reconsideration, appellant submitted June 11 and July 16, 2019 reports of Dr. Goldfarb. 

In his June 11, 2019 report, Dr. Goldfarb opined that appellant had an employment-related 

hearing loss. He noted that his impression was that appellant’s hearing loss had been directly 

affected by appellant’s occupation at the employing establishment, including exposure to machine 

gunfire, and indicated that he would definitely say that the exposure to machine gunfire at work 

was “the culprit in giving rise to the hearing loss.” Moreover, Dr. Goldfarb noted, “Please see if 

you can give [appellant] all consideration for getting some compensation for this hearing loss that 

he has had from his occupation.” He also indicated that, although he did not have access to a 

hearing test taken prior to appellant’s working at the employing establishment, he could say that 

appellant’s bilateral hearing was “beyond what we would consider normal” for a person of age 60.

Dr. Goldfarb’s opinion on causal relationship is of limited probative value, however, because he 

did not provide adequate medical rationale, based on a complete factual background, in support of 

his opinion on causal relationship.15 He did not provide a detailed account of appellant’s accepted 

exposure to hazardous noise in the workplace. Dr. Goldfarb did not adequately describe the varied 

types of noise to which appellant was exposed or the degree and extent to which appellant was 

exposed to such noise over the course of years. He did not explain the medical process through 

which the accepted noise exposure could have caused the observed hearing loss and his opinion 

on causal relationship is essentially conclusory in nature. The Board has held that a report is of 

limited probative value regarding causal relationship if it does not contain medical rationale 

explaining how a given medical condition has an employment-related cause.16 

In addition, the probative value of Dr. Goldfarb’s June 11, 2019 report is further reduced 

with respect to the cause of appellant’s hearing loss because the report also contains statements in 

which Dr. Goldfarb indicated that he could not relate appellant’s hearing loss to hazardous work 

noise, thereby rendering his opinion equivocal in nature. He noted that appellant wore hearing 

protection when he was exposed to noise at work and indicated, “That could be a deciding factor 

indicating that perhaps exposure to the noise itself was not the culprit at the time that this was 

done.” Dr. Goldfarb further advised that he could not provide a definitive answer on causation 

given that he did not have access to a hearing test taken prior to appellant’s working at the 

employing establishment. The Board has held that an opinion which is equivocal in nature is of 

limited probative value regarding the issue of causal relationship.

17

 For these reasons,

Dr. Goldfarb’s June 11, 2019 report is insufficient to create a conflict in the medical opinion 

evidence or otherwise establish appellant’s hearing loss claim.

In connection with his June 11, 2019 report, Dr. Goldfarb attached a June 11, 2019 

audiogram which he had obtained. The audiogram shows hearing loss, but it does not contain an 

 

15 See supra notes 11 through 13.

16 See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

17 See E.B., Docket No. 18-1060 (issued November 1, 2018); Leonard J. O’Keefe, 14 ECAB 42, 48 (1962).
8

opinion on the cause of the hearing loss and, therefore, the audiogram is of no probative value on 

the issue of causal relationship. The Board has held that medical evidence that does not offer an 

opinion regarding the cause of an employee’s medical condition is of no probative value on the issue 

of causal relationship.18 Therefore, this report is also insufficient to create a conflict in the medical 

opinion evidence or otherwise establish appellant’s hearing loss claim. 

Appellant also submitted a July 16, 2019 supplemental report from Dr. Goldfarb.

Dr. Goldfarb thanked counsel for sending him previous audiometric evaluations of appellant and 

advised that one of the top audiologists in his office interpreted them as showing a significant drop 

in appellant’s hearing between the October 17, 2017 and June 11, 2019 evaluations. He noted that 

there definitely was a decrease in hearing acuity from the initial examination to the present time, 

and advised that one could see the significant differences in appellant’s audiometric perception 

thresholds. However, the Board finds that this report of no probative value regarding appellant’s 

claim for an employment-related hearing loss because Dr. Goldfarb did not provide an opinion on 

the cause of the observed hearing loss. As noted above, medical evidence that does not offer an 

opinion regarding the cause of an employee’s condition or disability is of no probative value on the 

issue of causal relationship.

19

 Therefore, this report is insufficient to create a conflict in the medical 

opinion evidence or otherwise establish appellant’s hearing loss claim.

As appellant has not submitted rationalized medical evidence establishing hearing loss due 

to factors of his federal employment, or to create a conflict in medical opinion evidence, the Board 

finds that he has not met his burden of proof. The opinion of Dr. Goldberg, OWCP’s second opinion 

specialist, continues to represent the weight of the medical evidence and establishes that appellant’s 

hearing loss is not causally related to factors of his federal employment.

On appeal counsel argues that these reports are of sufficient probative value regarding 

appellant’s claimed employment-related hearing loss to create a conflict in the medical opinion 

evidence regarding this matter and to require referral of appellant to an impartial medical specialist. 

As explained above the Board finds that appellant has not met his burden of proof.

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(a) 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 hearing loss 

causally related to factors of his federal employment.

 

18 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

19 Id.
9

ORDER

IT IS HEREBY ORDERED THAT the October 10, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 3, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board