United States Department of Labor

Employees’ Compensation Appeals Board

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D.L., Appellant

and

DEPARTMENT OF JUSTICE, OFFICE OF 

THE INSPECTOR GENERAL, San Bruno, CA, 

Employer

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Docket No. 17-1440

Issued: September 10, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 19, 2017 appellant filed a timely appeal from a May 10, 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 the case.

ISSUE

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

thereby entitling him to a schedule award.

FACTUAL HISTORY

On September 2, 2016 appellant, then a 53-year-old criminal investigator, filed an 

occupational disease claim (Form CA-2) alleging that he sustained a continuous gradual loss of 

hearing due to exposure to loud noises while at work over several years. His work-related exposure 

 

1 5 U.S.C. § 8101 et seq.
2

allegedly occurred at both firearms and explosives ranges. Appellant stated that on three occasions 

firearms were fired at ranges when he did not have hearing protection in place. He also reported 

unprotected exposure during the detonation of explosives. Appellant identified October 26, 1993 

as the date he first became aware of his condition, and it was not until August 30, 2016 that he first 

realized his condition was caused or aggravated by his federal employment. The employing 

establishment indicated that appellant was last exposed to the alleged conditions on 

August 25, 2016.

OWCP received the results of various audiograms administered between October 26, 1993 

and June 18, 2012, as well as a November 23, 2004 letter from the employing establishment 

advising appellant that based on a recent examination he had not satisfied the hearing standard for 

his then-position as a special agent.

After further development of the record regarding appellant’s occupational noise exposure, 

OWCP prepared a statement of accepted facts (SOAF) and referred him for a second opinion 

examination.

In a January 30, 2017 report, Dr. Barry C. Baron, a Board-certified otolaryngologist and 

OWCP referral physician, noted appellant’s history of noise exposure during his federal 

employment. He also examined appellant, obtained a current audiogram, and reviewed the results 

of appellant’s previous audiograms dating back to 1993. Dr. Baron advised that the ear canals and 

tympanic membranes were clear. He noted that the latest audiometric testing (January 30, 2017) 

revealed a bilateral symmetrical high frequency sensorineural hearing loss, especially at 40 and 50 

Hertz (Hz). Dr. Baron also reported that speech reception thresholds were 10 decibels bilaterally. 

He diagnosed high frequency sensorineural hearing loss of both ears and mild tinnitus. Dr. Baron 

attributed 90 percent of appellant’s hearing loss to industrial causes, and the remaining 10 percent 

to nonindustrial causes. Lastly, he noted there was no medical or surgical treatment for 

sensorineural hearing loss and tinnitus, and that appellant did not currently require hearing aids. 

By decision dated March 2, 2017, OWCP accepted appellant’s claim for bilateral 

sensorineural hearing loss and bilateral tinnitus. It also provided appellant information on filing a 

claim for a schedule award and/or wage-loss compensation (Form CA-7).

On March 7, 2017 appellant filed a Form CA-7 requesting a schedule award.

OWCP prepared an amended SOAF dated April 14, 2017, and forwarded the case, 

including Dr. Baron’s January 30, 2017 second opinion evaluation and audiogram, to its district 

medical adviser (DMA) for an assessment of whether appellant had any permanent functional loss 

of hearing.

In a May 1, 2017 report, Dr. Charles R. Pettit, a Board-certified otolaryngologist and 

DMA, reviewed the otologic and audiologic testing performed by Dr. Baron and applied OWCP’s 

standardized procedures to his evaluation. The DMA determined that maximum medical 

improvement was achieved on January 30, 2017. He utilized the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides) and 

determined that appellant had zero percent binaural hearing loss because appellant’s hearing was 
3

in the “near-normal range.”

2

 The DMA also explained that he did not allow any disability/loss for 

tinnitus because appellant’s tinnitus appeared to be “light” in severity, episodic, and did not appear 

to significantly affect his daily activity. Lastly, the DMA noted that hearing aids were not 

indicated.

By decision dated May 10, 2017, OWCP explained that while the claim had been accepted 

for employment-related hearing loss, based on the most recent audiogram (January 30, 2017) 

appellant did not have a permanent functional hearing loss, and thus, he was not entitled to a 

schedule award. It noted the DMA’s comment that, as appellant’s hearing was in the “near-normal 

range,” his percentage of hearing loss “would be zero.”

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.3 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.4 Effective May 1, 2009, schedule awards are determined in accordance with the sixth 

edition of the A.M.A., Guides (2009).5

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

added up and averaged.6 Then, the “fence” of 25 decibels is deducted because, as the A.M.A., 

Guides points out, losses below 25 decibels result in no impairment in the ability to hear everyday 

speech under everyday conditions.7 The remaining amount is multiplied by a factor of 1.5 to arrive 

at the percentage of monaural hearing loss.8 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 

 

2 Testing for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps) revealed 

decibel losses of 10, 0, 5 and 50 respectively. Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 

3,000 cps revealed decibel losses of 10, 5, 10 and 45 respectively. 

3 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.

4 20 C.F.R. § 10.404. 

5 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 (February 2013).

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

7

Id. at 250.

8

Id. at 250-51.
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added to the greater loss and the total is divided by six to arrive at the amount of the binaural 

hearing loss.9

ANALYSIS

The Board finds that the evidence of record is insufficient to establish that appellant is 

entitled to a schedule award for his hearing loss in accordance with the sixth edition of the A.M.A., 

Guides.

On May 1, 2017 the DMA reviewed the otologic and audiologic testing performed on 

appellant by the second opinion physician, Dr. Baron, a Board-certified otolaryngologist, and 

properly applied OWCP’s standardized procedures to this evaluation. Testing for the right ear at 

the frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed decibel losses of 10, 0, 5 and 50 

respectively. These decibel losses were totaled at 65 decibels and were divided by 4 to obtain the 

average hearing loss of 16.25 decibels. This average loss was then reduced by 25 decibels, “the 

fence,” to equal a negative figure, or zero (0) percent right monaural loss. Testing for the left ear 

at the frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed decibel losses of 10, 5, 10 and 

45 respectively. These decibel losses total 70 decibels and when divided by 4 result in an average 

hearing loss of 17.5 decibels. This average loss when reduced by 25 decibels equals a negative 

figure, or zero (0) percent left monaural loss. The DMA properly concluded that the calculations 

showed that appellant did not have ratable hearing loss under the relevant standards of the A.M.A., 

Guides. 

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.10 Although appellant has employment-related hearing loss, it is not sufficiently 

severe to be ratable for schedule award purposes.11

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, thereby entitling him to a schedule award.

 

9

Id. at 251.

10 Although the record includes the results of audiograms administered during the period October 1993 through 

June 2012, these results do not satisfy OWCP’s quality standards. See J.H., 59 ECAB 377, 380 (2008). 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. See Joshua A. Holmes, 42 ECAB 231, 236 (1990).

11 L.H., Docket No. 17-1957 (issued June 13, 2018); W.T., Docket No. 17-1723 (issued March 20, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the May 10, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: September 10, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board