United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.G., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Laredo, TX, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-0891

Issued: October 1, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 21, 2019 appellant filed a timely appeal from a February 26, 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 to 

consider the merits of this case.

ISSUE

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

warranting a schedule award.

FACTUAL HISTORY

On September 23, 2016 appellant, then a 52-year-old customs and border protection 

officer, filed an occupational disease claim (Form CA-2) alleging that he developed hearing loss 

and tinnitus as a result of 15 years of employment-related noise exposure during daily processing 

of commercial cargo vehicles and quarterly weapons qualifications. He alleged that he first 

 

1

5 U.S.C. § 8101 et seq.
2

became aware of the conditions on September 27, 2012 and their relationship to his federal

employment on August 26, 2016. Appellant did not stop work.

In a development letter dated October 14, 2016, OWCP advised appellant that the evidence 

submitted was insufficient to establish his claim. It advised him of the type of evidence necessary 

to establish his claim and provided a questionnaire for completion. OWCP afforded appellant 30 

days to submit the necessary evidence. In a letter of even date, it requested that the employing 

establishment provide comments regarding his exposure to hazardous noise during his federal 

employment.

OWCP received responses from both appellant and the employing establishment clarifying 

appellant’s exposure to hazardous noise from heavy vehicle traffic during the period July 2001 to 

May 2005, as well as exposure to heavy commercial truck traffic, and quarterly weapons

qualifications from May 2005 to the present.

Following initial development of the claim, on November 8, 2016 OWCP referred 

appellant for audiometric testing and a second opinion examination to Dr. Paul W. Loeffler, a 

Board-certified otolaryngologist, to evaluate the nature, extent, and relationship of his hearing loss.

In a November 22, 2016 report, Dr. Loeffler opined that appellant sustained work-related 

bilateral sensorineural hearing loss and tinnitus. He further related that hearing aids were not 

recommended. Audiometric testing was performed on November 17, 2016. Testing at the 

frequencies of 500, 1,000, 2,000, and 3,000 Hertz (Hz) revealed the following: right ear 25, 25, 

20, and 20 decibels (dBs); left ear 25, 20, 25, and 20 dBs. Dr. Loeffler determined that appellant 

had no ratable hearing impairment and listed November 17, 2016 as the date of maximum medical 

improvement (MMI).

By decision dated December 9, 2016, OWCP accepted appellant’s claim for bilateral

sensorineural hearing loss and tinnitus due to his employment-related noise exposure. It further 

determined that hearing aids were not authorized.

On December 15, 2016 Dr. Jeffrey M. Israel, a Board-certified otolaryngologist, OWCP’s

district medical adviser (DMA), reviewed Dr. Loeffler’s report and the November 17, 2016 

audiometric testing. He concluded that, in accordance with the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment2(A.M.A., Guides), 

appellant had zero percent monaural hearing loss in each ear and zero percent binaural hearing 

loss. The DMA determined that appellant’s hearing loss was not sufficiently severe to be ratable 

for schedule award purposes after applying OWCP’s standards for evaluating hearing loss to the 

results of the November 17, 2016 audiogram. He recommended yearly audiograms, noise 

protection for appellant’s ears, and hearing aids for both hearing loss and tinnitus masking. 

On December 21, 2016 appellant filed a claim for a schedule award (Form CA-7).

By decision dated January 12, 2017, OWCP denied appellant’s claim for a schedule award. 

It explained that under the A.M.A., Guides his hearing loss was not sufficiently severe to be 

considered ratable for purposes of a schedule award. 

 

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

On February 3, 2017 appellant requested a telephonic hearing before an OWCP hearing 

representative. A hearing was held on July 12, 2017. In support of his claim, appellant submitted 

a July 20, 2017 audiogram. 

By decision dated September 8, 2017, OWCP’s hearing representative affirmed the 

January 12, 2017 decision denying appellant’s claim for a schedule award. He noted that OWCP 

may consider further evaluation to determine whether hearing aids should be authorized to treat 

appellant’s work-related hearing loss and tinnitus. 

Audiograms dated October 12, 2017 and June 6, 2018 were received by OWCP. On 

October 2, 2018 appellant filed another Form CA-7 claim for a schedule award.

On October 17, 2018 OWCP referred appellant for audiometric testing and a second 

opinion examination with Dr. William C. Smith, a Board-certified otolaryngologist. In a 

November 5, 2018 medical report, Dr. Smith diagnosed bilateral high-frequency sensorineural 

hearing loss and tinnitus as a result of employment-related noise exposure. He recommended 

hearing aids. November 5, 2018 audiometric testing at the frequencies of 500, 1,000, 2,000, and 

3,000 Hz revealed the following: right ear 10, 10, 15, and 35 dBs; left ear 10, 10, 15, and 25 dBs. 

Dr. Smith determined the monaural hearing loss of each ear was zero percent, but that appellant 

had one percent binaural hearing loss due to tinnitus. The date of MMI was noted as 

November 5, 2018.

On January 31, 2019 Dr. Israel, acting as OWCP’s DMA, reviewed Dr. Smith’s 

November 5, 2018 report and audiometric testing and determined that no additional impairment 

had been incurred. He explained that, in accordance with the A.M.A., Guides, appellant had zero 

percent monaural hearing loss in each ear. Dr. Israel noted that, while Dr. Smith provided one 

percent permanent impairment for binaural hearing loss for tinnitus, a tinnitus award could not be 

granted under the A.M.A., Guides “when there is a zero percent binaural hearing impairment such 

as in this case.” Thus, appellant sustained zero percent binaural hearing loss. Dr. Israel 

recommended hearing aids and noted the date of MMI as November 5, 2018. 

By decision dated February 26, 2019, OWCP found that, although appellant’s hearing loss 

was employment related, it was insufficient to establish that appellant has ratable binaural hearing 

loss and therefore, a schedule award for tinnitus was not payable. It further determined that he 

was entitled to medical benefits and hearing aids for his condition if recommended by his 

physician.

LEGAL PRECEDENT

The schedule award provisions of FECA,

3 and its implementing federal regulation,4 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 in which the percentage loss of a member shall be 

determined. The method used in making such a determination is a matter which rests in the 

discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized 

 

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.
4

the use of a single set of tables so that there may be uniform standards applicable to all claimants. 

OWCP evaluates the degree of permanent impairment according to the standards set forth in the 

specified edition of the A.M.A., Guides, published in 2009.5 The Board has approved the use by 

OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a 

member of the body for schedule award purposes.6

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.7 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.

9

 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 the 

binaural hearing loss.

10

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

evaluating hearing loss.

11

ANALYSIS

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

loss, warranting a schedule award.

Appellant submitted audiograms dated October 12, 2017 and June 6, 2018 from an 

audiologist. However, these audiogram do not constitute probative medical evidence of hearing 

loss because they were not certified by a physician as being accurate. The Board has held that, if 

an audiogram is prepared by an audiologist, it must be certified by a physician as being accurate 

before it can be used to determine the percentage of hearing loss.12

OWCP properly referred appellant to Dr. Smith for a second opinion examination relative 

to evaluate his hearing loss. In his November 5, 2018 report, Dr. Smith related appellant’s 

audiogram findings and concluded that his binaural sensorineural hearing loss was due to his 

workplace noise exposure. He determined that appellant sustained zero percent monaural hearing 

loss in each ear and provided one percent binaural hearing impairment for tinnitus. 

 

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

6

See J.W., Docket No. 17-1339 (issued August 21, 2018); R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 

ECAB 143 (2000).

7 A.M.A., Guides 250.

8

Id.; C.D., Docket No. 18-0251 (issued August1, 2018).

9

Id.

10 Id.

11 V.M., Docket No. 18-1800 (issued April23, 2019). 

12 See J.O., Docket No. 17-1618 (issued June 14, 2018).
5

On January 31, 2019 the DMA reviewed Dr. Smith’s report and concurred that appellant 

had zero percent monaural hearing loss in each ear. Testing at the frequency levels of 500, 1,000, 

2,000, and 3,000 Hz revealed decibel losses of 10, 10, 15, and 35 for the right ear and 10, 10, 15, 

and 25 for the left ear. The decibel losses for the right ear were totaled at 70 and then divided by 

4 to obtain the average hearing loss of 17.5. The decibel losses for the left ear were totaled at 60 

and then divided by 4 to obtain the average hearing loss of 15. After subtracting the 25 decibel 

fence, both the right ear and left ear losses were reduced to zero. When multiplied by 1.5, the 

resulting monaural loss in each ear was zero percent. The DMA therefore found a total of zero 

percent binaural hearing loss. The Board finds that the DMA properly concluded that appellant 

did not have permanent impairment of his hearing warranting a schedule award.13 Although 

appellant has accepted employment-related hearing loss, it is not sufficiently severe to be ratable 

for schedule award purposes.14

The Board notes that, while Dr. Smith found one percent permanent impairment due to 

tinnitus, the DMA properly explained that because appellant’s hearing loss was not ratable, he was 

not entitled to a schedule award for tinnitus. The A.M.A., Guides provide that, if tinnitus interferes 

with activities of daily living (ADL’s), including sleep, reading (and other tasks requiring 

concentration), enjoyment of quiet recreation and emotional well-being, up to five percent may be 

added to a measurable binaural hearing impairment.15 A schedule award for tinnitus however is 

not payable unless the medical evidence establishes that the condition caused or contributed to a 

ratable hearing loss.16 As such, the Board has held that, in the absence of ratable hearing loss, a 

schedule award for tinnitus is not appropriate.17 Accordingly, the Board finds that appellant is not 

entitled to a schedule award for tinnitus.18

The Board finds that there is no current medical evidence of record supporting that 

appellant has ratable hearing loss under OWCP’s standardized procedures for rating hearing 

impairment.19 Although the evidence of record establishes that appellant has an employmentrelated hearing loss, it is not sufficiently severe to be ratable for schedule award purposes.20

Appellant may request a schedule award or increased schedule award at any time based on 

evidence of a new exposure or medical evidence showing progression of an employment-related 

condition resulting in permanent impairment or increased impairment.

 

13 B.E., Docket No. 18-1785 (issued April1, 2019).

14 W.T., Docket No. 17-1723 (issued March 20, 2018); E.D., Docket No. 11-0174 (issued July 26, 2011).

15 Id. See also RobertE. Cullison, 55 ECAB 570 (2004).

16 A.W., Docket No. 16-0795 (issued August 29, 2016).

17 D.G., Docket No. 16-1486 (issued December 16, 2016).

18 G.G., Docket No. 18-0566 (issued October 2, 2018).

19 L.H., Docket No. 18-0696 (issued November 28, 2018).

20 R.S., Docket No. 18-1524 (issued February 5, 2019).
6

CONCLUSION

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

loss, warranting a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the February 26, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 1, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board