United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.F., Appellant

and

DEPARTMENT OF THE ARMY, CHEMICAL 

MATERIALS AGENCY, Tooele, UT, Employer

__________________________________________

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Docket No. 18-0810

Issued: February 27, 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 March 6, 2018 appellant filed a timely appeal from a November 8, 2017 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 has met his burden of proof to establish more than 29 percent 

binaural hearing loss, for which he previously received a schedule award.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances as set forth 

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

follows. 

On May 18, 2015 appellant, then a 68-year-old retired diesel generator mechanic, filed an 

occupational disease claim (Form CA-2) for employment-related bilateral hearing loss. He 

indicated that he first became aware of his claimed condition in June 1975, and first realized it was 

related to his federal employment in July 1984. Appellant had retired, effective April 3, 2007.3

By decision dated April 19, 2017, OWCP accepted his occupational disease claim for bilateral 

sensorineural hearing loss and bilateral tinnitus. 

On April 25, 2017 appellant filed a claim for a schedule award (Form CA-7).

In an October 23, 2015 report, Dr. Stewart E. Barlow, a Board-certified otolaryngologist 

and OWCP referral physician, diagnosed bilateral sensorineural hearing loss and tinnitus, which 

he attributed to appellant’s federal employment. Based on the results of an October 23, 2015 

audiogram, he found 20.9 percent permanent binaural hearing impairment.4 Dr. Barlow also found 

an additional one percent impairment due to tinnitus, for a total of 21.9 percent permanent binaural 

hearing impairment pursuant to the sixth edition of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (A.M.A., Guides).5

A March 10, 2016 audiogram noted losses at the frequencies of 500, 1,000, 2,000, and 

3,000 Hz. The right ear losses were recorded as 45, 30, 50, and 85 dBs. The left ear losses were 

recorded as 40, 25, 30, and 60 dBs.6

In an April 19, 2017 report, Dr. Jeffrey M. Israel, a Board-certified otolaryngologist and 

district medical adviser (DMA), noted that the results of the most recent audiogram, dated 

March 10, 2016, were valid and representative of appellant’s hearing sensitivity. Based on this 

study, he calculated 41.25 percent right monaural loss and 20.625 left monaural loss, which 

 

2 Docket No. 16-1398 (issued December 19, 2016).

3 By decision dated November 2, 2015, OWCP denied appellant’s claim, finding that it was untimely pursuant to 

5 U.S.C. § 8122. On March 19, 2016 appellant requested reconsideration of the November 2, 2015 decision. By 

decision dated April 28, 2016, OWCP denied his March 19, 2016 request for reconsideration. Appellant appealed to 

the Board. By decision dated December 19, 2016, the Board found that OWCP had improperly denied his request for 

reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a). The Board noted that appellant had 

submitted employing establishment hearing conservation records, which the Board determined were relevant and 

pertinent to the timeliness issue. Therefore, the Board set aside the November 3, 2015 decision and remanded the 

case to OWCP for consideration of the merits followed by a de novo decision.

4 Appellant’s October 23, 2015 audiogram noted losses at the frequencies of 500, 1,000, 2,000, and 3,000 Hertz

(Hz). The right ear losses were recorded as 50, 35, 45, and 80 decibels (dBs). The left ear losses were recorded as 

35, 20, 30, and 60 dBs.

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

represented 24.1 percent permanent binaural loss. With respect to appellant’s tinnitus, Dr. Israel 

noted that a recent tinnitus handicap inventory revealed a score of 82, which represented 5 percent 

impairment for tinnitus. Therefore, appellant’s combined permanent binaural hearing loss was 

29.1 percent. Dr. Israel found that he had reached maximum medical improvement (MMI) as of 

March 10, 2016, which was the date of his latest audiogram.

By decision dated November 8, 2017, OWCP granted appellant a schedule award for 29 

percent permanent binaural hearing loss. The award covered a 58-week period from March 10, 

2016 to April 19, 2017.

LEGAL PRECEDENT

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions, and organs of the body.7 FECA, however, 

does not specify the manner by which the percentage loss of a member, function or organ shall be 

determined. To ensure consistent results and equal justice under the law, good administrative 

practice requires the use of uniform standards applicable to all claimants. The implementing 

regulations have adopted the A.M.A., Guides as the appropriate standard for evaluating schedule 

losses.8 Effective May 1, 2009, schedule awards are determined in accordance with the sixth 

edition of the A.M.A., Guides.

9

Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each frequency are 

added up and averaged.10 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.11 The remaining amount is multiplied by a factor of 1.5 to arrive at 

the percentage of monaural hearing loss.12 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, and then added 

to the greater loss and the total is divided by six to arrive at the amount of the binaural hearing 

loss.13

 

7 For complete loss of hearing of one ear, an employee shall receive 52 weeks’ compensation. 5 U.S.C. 

§ 8107(c)(13). For complete loss of hearing of both ears, an employee shall receive 200 weeks’ compensation. Id.

8 20 C.F.R. § 10.404. 

9 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.6a (March 2017).

10 See Section 11.2, Hearing and Tinnitus, A.M.A., Guides 248-51 (6th ed. 2009).

11 Id. at 250.

12 Id. at 250-51.

13 Id. at 251.
4

Regarding tinnitus, the A.M.A., Guides provides that tinnitus is not a disease, but rather a 

symptom that may be the result of disease or injury.14 If tinnitus interferes with activities of daily 

living, 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

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish more than 29

percent binaural hearing loss, for which he previously received a schedule award.

In an April 19, 2017 narrative report, Dr. Israel, the DMA, noted that based on the 

March 10, 2016 audiogram performed on behalf of the second opinion specialist, Dr. Barlow,

appellant’s right ear hearing losses at 500, 1,000, 2,000, and 3,000 Hz were 45, 30, 50, and 85 dBs, 

which totaled 210 dBs. His left ear losses were 40, 25, 30, and 60 dBs, which totaled 155 dBs. 

The right ear hearing loss resulted in an average loss of 52.5 (210 ÷ 4) dBs, and the left ear loss 

averaged 38.75 (155 ÷ 4) dBs. After subtracting the 25 dB fence, the right ear loss was 27.5, and 

when multiplied by 1.5, represented 41.25 percent monaural loss. Applying the same formula to 

the left ear (38.75 – 25 = 13.75 x 1.5) resulted in 20.625 percent monaural loss. The DMA then 

applied the appropriate formula to convert the left and right monaural losses to a binaural loss of 

24.1 percent.16 He then added the maximum 5 percent impairment for tinnitus for a total, 

permanent binaural hearing loss of 29.1 percent, which OWCP properly rounded down to 29 

percent.17 The Board finds that there is no current medical evidence of record supporting that 

appellant has a greater hearing loss than previously awarded.

On appeal appellant challenges the period of the schedule award, noting that it “did not 

match up with his injury date.” As noted, OWCP found 29 percent binaural hearing loss and 

properly calculated that he was entitled to 58 weeks of compensation.18 Schedule awards begin 

on the date of MMI, unless circumstances show a later date should be used.19 The question of 

when MMI has been reached is a factual one that depends upon the medical findings in the record.20 

In the absence of evidence to the contrary, the date of MMI is usually considered to be the date of 

 

14 See A.M.A., Guides 249 (6th ed. 2009).

15 Id.; see also R.H., Docket No. 10-2139 (issued July 13, 2011).

16 Dr. Israel multiplied the lesser loss of 20.63 percent monaural hearing loss for the left ear by 5, added the 41.25 

percent right ear monaural hearing loss, and divided the total by 6.

17 Supra note 9, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3b (January 2010) (results should be rounded 

down for figures less than .5 and up for .5 and over).

18 See supra note 7 (0.29 x 200 weeks’ compensation = 58 weeks).

19 Supra note 9, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.7b

(March 2017).

20 L.H., 58 ECAB 561, 563 (2007).
5

the evaluation that is accepted as definitive by OWCP.21 In this instance, OWCP based the 

schedule award on the results of appellant’s March 10, 2016 audiogram, and therefore, properly 

found that he reached MMI by that date. Accordingly, the 58-week period of the schedule award 

commenced on March 10, 2016.22

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.

CONCLUSION

The Board finds that appellant did not met his burden of proof to establish greater than 29 

percent binaural hearing loss, for which he previously received a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the November 8, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 27, 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

 

21 See supra note 17 at Chapter 3.700.3a(1)(c).

22 See supra note 19.