United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.G., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PATROL, Roma, TX, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-1958

Issued: June 12, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On September 24, 2019 appellant filed a timely appeal from a September 11, 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 has met his burden of proof to establish ratable binaural 

hearing loss for schedule award purposes.

FACTUAL HISTORY

On September 26, 2018 appellant, then a 57-year-old customs and border patrol officer, 

filed an occupational disease claim (Form CA-2) alleging binaural hearing loss due to factors of 

 

1 5 U.S.C. § 8101 et seq.
2

his federal employment including daily exposure to loud noises from motor vehicles, construction 

at bridges, gunfire, horns, x-ray equipment, and tractor trailers. He noted that he first became 

aware of his condition and realized that it was caused or aggravated by factors of his federal 

employment on January 1, 2011.

An October 13, 2016 employing establishment audiogram reflected testing at the frequency 

levels of 500, 1,000, 2,000, and 3,000 hertz (Hz) and revealed findings for the left ear of 10, 10, 5, 

and 10 decibels (dBs) and for the right ear 15, 10, 10, and 35 dBs. Appellant’s August 7, 2012 

baseline audiometric results at the same frequency levels revealed 5, 10, 5, and 10 dBs for the left 

ear and 5, 10, 10, and 30 dBs on the right.

On January 30, 2019 OWCP referred the case record, including a statement of accepted 

facts (SOAF) and a list of questions to Dr. John R. Austin, a Board-certified otolaryngologist, for 

a second opinion evaluation. In a February 20, 2019 report, Dr. Austin examined appellant and 

administered an audiogram. The audiogram reflected testing at the frequency levels of 500, 1,000, 

2,000, and 3,000 Hz and revealed findings for the right ear of 10, 10, 15, and 35 dBs and for the 

left ear 15, 10, 20, and 30 dBs. Dr. Austin diagnosed a mild-to-moderately severe binaural high 

frequency sensorineural hearing loss with tinnitus. He opined that appellant’s hearing loss was 

related to noise exposure encountered in his federal employment. Dr. Austin further found that, 

based on results of the February 20, 2019 audiogram, the impairment calculations under the sixth 

edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment2

(A.M.A., Guides) revealed a monaural loss of zero percent in each ear and zero percent binaural 

hearing loss.

3

 He found zero percent impairment for tinnitus noting that there were no activities 

of daily living assessment. 

By decision dated March 18, 2019, OWCP accepted appellant’s claim for binaural 

sensorineural hearing loss. 

On June 12, 2019 appellant filed a claim for a schedule award (Form CA-7). 

On June 21, 2019 OWCP referred the case record, including Dr. Austin’s February 20, 

2019 report and audiogram, to a district medical adviser (DMA) to determine whether appellant 

had a ratable hearing loss. In a September 7, 2019 report, Dr. Jeffrey M. Israel, a Board-certified 

otolaryngologist serving as the DMA, reviewed appellant’s medical records, the SOAF, and

Dr. Austin’s February 20, 2019 report and audiogram. He found that the date of maximum medical 

improvement was February 20, 2019 and agreed with Dr. Austin that appellant had hearing loss of 

zero percent under the A.M.A., Guides. Based upon the audiogram the total for the left ear was 

75, while the total for the right ear was 70. These totals were divided by four, resulting in 18.75 

for the left ear and 17.50 for the right ear. These averages were reduced by the 25 dBs fence, 

resulting in zero percent monaural loss for both ears, and zero percent binaural loss. The DMA 

thus concluded that appellant did not have a ratable permanent hearing loss. He recommended 

annual audiograms, noise protection for his ears, and authorization for hearing aids. 

 

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

3 Dr. Austin noted that the audiometer had last been calibrated on August 23, 2018.
3

By decision dated September 11, 2019, OWCP found that appellant’s hearing loss was not 

sufficiently severe to be considered ratable and he was therefore not entitled to schedule award 

compensation. It further found that he was entitled to medical benefits including hearing aids, if 

recommended by his physician. 

LEGAL PRECEDENT

The schedule award provisions of FECA4and its implementing regulations5set 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 of loss of a member shall be determined. The method 

used in making such determination is a matter which rests in the sound discretion of OWCP. For 

consistent results and to ensure equal justice, the Board has authorized the use of a single set of 

tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has 

been adopted by OWCP as a standard for evaluation of schedule losses and the Board has 

concurred in such adoption.6 For schedule awards after May 1, 2009, the impairment is evaluated 

under the sixth edition of the A.M.A., Guides, published in 2009.7

A claimant seeking compensation under FECA has the burden of proof to establish the 

essential elements of his or her claim.8 With respect to a schedule award, it is the claimant’s burden 

of proof to establish permanent impairment of a scheduled member or function of the body as a 

result of his or her employment injury.9 The medical evidence must include a detailed description 

of the permanent impairment.10

OWCP evaluates occupational hearing loss in accordance with the standards contained in 

the A.M.A., Guides.

11

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

frequency are added up and averaged. 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.12 The remaining amount is multiplied by a factor of 

 

4 Supra note 1 at § 8107.

5 20 C.F.R. § 10.404.

6

Id.; see also Jacqueline S. Harris, 54 ECAB 139 (2002).

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 

2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

8 C.U., Docket No. 18-1480 (issued February 6, 2019); John W. Montoya, 54 ECAB 306 (2003).

9 D.S., Docket No. 19-0292 (issued June 21, 2019); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 

53 ECAB 229 (2001).

10 See Vanessa Young, 55 ECAB 575 (2004).

11 T.O., Docket No. 18-0659 (issued August 8, 2019); R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 

143 (2000); see also supra note 5.

12 See A.M.A., Guides 250 (6th ed. 2009).
4

1.5 to arrive at the percentage of monaural hearing loss.13 The binaural loss is determined by 

calculating the loss in each ear using the formula for monaural loss and 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.14 The Board has concurred in OWCP’s adoption of this standard for 

evaluating hearing loss.15

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.16

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to a DMA for an opinion concerning the nature and percentage of permanent 

impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the 

percentage of impairment specified.17

ANALYSIS

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

hearing loss for schedule award purposes.

In a February 20, 2019 report, second opinion physician Dr. Austin noted binaural 

sensorineural hearing loss with tinnitus due to noise exposure encountered in appellant’s federal 

employment. An audiogram he obtained at the frequency levels of 500, 1,000, 2,000, and 3,000 

Hz, respectively revealed dB losses in the right ear of right ear of 10, 10, 15, and 35 dBs 

respectively, and for the left ear 15, 10, 20, and 30 dBs, respectively.

OWCP’s DMA, Dr. Israel, on September 7, 2019, reviewed Dr. Austin’s report and 

audiometric findings, properly applied OWCP’s standardized procedures, and concurred with

Dr. Austin in finding that appellant had no monaural or binaural hearing loss. He totaled the dB 

losses to equal 75 on the left and 70 on the right. These values, when divided by four, resulted in

average hearing loss of 18.75 on the left and 17.50 on the right, which when reduced by the 25 

dBs fence, resulted in zero percent loss.

The Board finds that, as the March 20, 2019 audiogram did not demonstrate that appellant’s 

hearing loss was ratable, he is not entitled to a schedule award for his accepted hearing loss 

condition. Both the DMA and Dr. Austin found appellant had no ratable impairment. There is no 

other evidence of record establishing a ratable hearing loss.

 

13 Id.

14 Id.

15 E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

16 A.M.A., Guides 249; G.G., Docket No. 18-0373 (issued September 25, 2019); see also R.H., Docket No. 10-2139 

(issued July 13, 2011).

17 Supra note 7 at Chapter 2.808.6(f) (March 2017).
5

On appeal appellant contends that the accepted binaural hearing loss makes it difficult to 

hear conversations and interferes with other activities of daily living. As explained above, he has 

not established that the accepted hearing loss is ratable for schedule award purposes. Although 

appellant has an employment-related hearing loss, it is not significant enough to be ratable for 

schedule award purposes.18

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 has not met his burden of proof to establish ratable hearing 

loss for schedule award purposes.

ORDER

IT IS HEREBY ORDERED THAT the September 11, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 12, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

18 See L.H., Docket No. 18-0696 (issued November 28, 2018); G.G., Docket No. 18-0566 (issued October 2, 2018);

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