United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.T., Appellant

and

DEPARTMENT OF THE NAVY, PEARL 

HARBOR NAVAL SHIPYARD, 

Pearl Harbor, HI, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-1705

Issued: April 16, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

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 July 29, 2019 appellant filed a timely appeal from a February 6, 2019 merit decision of 

the Office of Workers’ Compensation Programs (OWCP).1 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.3

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from February 6, 2019, the date of OWCP’s last decision, was 

August5, 2019. Since using August 13, 2019, the date the appeal was received by the Clerk of the Appellate Boards, 

would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. 

Postal Service postmark is July 29, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

2

5 U.S.C. § 8101 et seq.

3 The Board notes that following the February6, 2019 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provide: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

ISSUE

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

for schedule award purposes.

FACTUAL HISTORY

On August 30, 2018 appellant, then a 63-year-old marine machinery mechanic, filed an 

occupational disease claim (Form CA-2) alleging that he developed binaural hearing loss and 

tinnitus due to factors of his federal employment. He indicated that he first became aware of the 

condition and attributed it to factors of his federal employment on June 20, 2018. Appellant did 

not stop work. 

In an accompanying narrative statement, appellant explained that he first became aware of 

his hearing loss in June 2018 after he experienced difficulty hearing conversations. He noted that 

he had audiograms taken yearly which showed a decline in his hearing. Appellant reported that 

he started to experience a constant ringing in his ears that made hearing more difficult. He 

indicated that his work as a marine mechanic exposed him to loud noises from pumps, diesel 

engines, compressors, generators, blowers, cranes, loud speakers, operating equipment, air 

systems, needle guns, grinders, drill presses, and saws. Appellant noted that when feasible he used 

earplugs and earmuffs for protection. He indicated that he was exposed to loud noises between 

three to six hours per day, five days per week. Appellant related that he had not experienced any 

hearing problems prior to his federal employment.

In an August 27, 2018 employment history form, appellant listed his jobs from June 1975 

to August 2018. He reported that he was not exposed to any significant loud noises prior to his 

federal employment. Appellant noted that from September to August 2018 he worked as a 

shipfitter laborer and a marine mechanic which exposed him to loud noises two to six hours daily. 

He related that he used earplugs and earmuffs for protection. 

In a May 15, 2012 report, Dr. Caton Harris, an employing establishment audiologist, saw 

appellant for an annual hearing screening and diagnostic evaluation. He related that appellant 

worked as a marine mechanic and was exposed to hazardous noises for 50 percent of his day. 

Dr. Harris indicated that appellant reported constant tinnitus. He performed audiometry tests and 

diagnosed sensorineural hearing loss. 

In an April 24, 2014 report, Dr. Kathryn Watts, an employing establishment audiologist, 

indicated that appellant experienced deterioration in hearing sensitivity in his right ear as a result 

of noise exposure. She related that he was exposed to hazardous noises as a result of his work as 

a marine mechanic. Dr. Watts performed audiometry tests and found sensorineural hearing loss. 

She diagnosed bilateral sensorineural hearing loss and tinnitus. 

Appellant submitted audiograms performed by the employing establishment as part of a 

hearing conservation program dated from April 23, 1984 through April 11, 2018. 

In a September 6, 2018 development letter, OWCP informed appellant that the evidence of 

record was insufficient to establish his claim. It advised him of the type of medical evidence 

needed. OWCP indicated that it was scheduling a second opinion examination for appellant to 

address this deficiency.
3

On September 6, 2018 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and the medical record, to Dr. Ronald Peroff, a Board-certified otolaryngologist, for a 

second opinion evaluation.

In a report dated October 4, 2018, Dr. Peroff reviewed the SOAF and a September 27, 2018 

audiogram, performed a physical examination, and completed OWCP’s evaluation questionnaire. 

He indicated that there was no significant variation from the SOAF. Dr. Peroff diagnosed mild 

sensorineural hearing loss that he opined was due to noise exposure related to appellant’s federal 

employment. He reviewed appellant’s audiogram, which demonstrated losses of 15, 20, 15, and 

30 decibels (dBs) on the right and 5, 15, 25, and 25 dBs on the left at 500, 1,000, 2,000, and 3,000 

Hertz (Hz), respectively. Utilizing the sixth edition of the American Medical Association, Guides 

to the Evaluation of Permanent Impairment (A.M.A., Guides),4 Dr. Peroff calculated that appellant 

had a monaural loss of zero percent in each ear for a binaural loss of zero percent. He rated 

appellant’s tinnitus at four percent permanent impairment to arrive at a total binaural hearing loss 

of four percent.

By decision dated December 26, 2018, OWCP accepted appellant’s claim for binaural

sensorineural hearing loss and binaural tinnitus. 

On December 26, 2018 OWCP referred the medical record and SOAF to its district medical 

adviser (DMA), Dr. Jeffrey M. Israel, a Board-certified otolaryngologist, for calculation of 

appellant’s percentage of permanent hearing impairment and assignment of the date of maximum 

medical improvement (MMI). In a January 9, 2019 report, Dr. Israel concurred with Dr. Peroff’s 

assessment of zero percent monaural loss in each ear. However, he opined that under the sixth 

edition of the A.M.A., Guides, a tinnitus award could not be given when there was zero percent 

binaural hearing impairment. As such, Dr.Israel found that the total binaural loss was zero percent. 

He recommended that appellant receive yearly audiograms and provided authorization for hearing 

aids. Dr. Israel determined that the date of MMI was September 27, 2018, the date of appellant’s 

last audiogram.

By decision dated February 6, 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 found, however, that he was entitled to medical benefits for the effects of his 

injury, including hearing aids, if recommended by his physician. 

LEGAL PRECEDENT

The schedule award provisions of FECA5 and its implementing regulations6 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. However, FECA does not 

specify the manner in which the percentage of loss shall be determined. For consistent results and 

to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A., Guides as 

 

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

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.
4

the uniform standard applicable to all claimants.7 As of May 1, 2009, the sixth edition of the 

A.M.A., Guides is used to calculate schedule awards.8

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

essential elements of his or her claim.9 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.10 A claimant may seek an increased schedule award if the 

evidence establishes that he or she sustained an increased impairment causally related to an 

employment injury.11 The medical evidence must include a detailed description of the permanent 

impairment.12

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

A.M.A., Guides.

13

 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 point out, losses below 25 dBs result in no impairment in the ability to hear 

everyday speech under everyday conditions. The remaining amount is multiplied by a factor of 

1.5 to arrive at the percentage of monaural hearing loss. 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 binaural 

hearing loss. The Board has concurred in OWCP’s adoption of this standard for evaluating hearing 

loss.14

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.15 If tinnitus interferes with activities of daily 

living, including sleep, reading, and other tasks requiring concentration, up to five percent may be 

added to a measurable binaural hearing impairment.16

 

7

Id. at § 10.404(a).

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

2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 --Medical, Schedule Awards, Chapter 3.700.2 and 

Exhibit 1 (January 2010).

9 B.B., Docket No. 19-1491 (issued February 3, 2020); John W. Montoya, 54 ECAB 306 (2003).

10 R.R., Docket No. 19-0750 (issued November 15, 2019); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. 

Meehan, 53 ECAB 229 (2001).

11 B.B., supra note 9; Rose V. Ford, 55 ECAB 449 (2004).

12 B.B., supra note 9; Vanessa Young, 55 ECAB 575 (2004).

13 A.M.A., Guides 250.

14 J.E., Docket No. 19-1325 (issued December 13, 2019); E.C., Docket No. 19-1007 (issued November 8, 2019).

15 See A.M.A., Guides 249.

16 Id.
5

ANALYSIS

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

loss for schedule award purposes.

OWCP referred appellant to Dr. Peroff for a second opinion examination to evaluate his 

hearing loss. In his October 4, 2018 report, Dr. Peroff found mild sensorineural hearing loss and 

binaural tinnitus due to noise exposure related to appellant’s federal employment and calculated 

that appellant had a monaural loss of zero percent in each ear for a binaural loss of zero percent. 

He then rated appellant’s tinnitus at four percent permanent impairment to arrive at a total binaural 

hearing impairment of four percent.

In a January 9, 2019 report, Dr. Israel, OWCP’s DMA, reviewed Dr. Peroff’s report and 

determined that appellant had zero percent monaural hearing loss in each ear. He related that

September 27, 2018 testing revealed losses of 15, 20, 15, and 30 dBs on the right and 5, 15, 25, 

and 25 dBs on the left at 500, 1,000, 2,000, and 3,000 Hz, respectively. Dr. Israel totaled the dB 

losses to 80 on the right and 70 on the left. These values, when divided by four, resulted in an 

average hearing loss of 20 on the right and 17.5 on the left, which when reduced by the 25 dB 

fence, resulted in zero percent loss.

The Board finds that as the September 27, 2018 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. Although appellant has an employment-related hearing loss, it is not significant 

enough to be ratable for schedule award purposes.17 

While Dr. Peroff added a four percent impairment rating based on appellant’s tinnitus,

Dr. Israel correctly explained that tinnitus may not be added to an impairment rating for hearing 

loss under the sixth edition of the A.M.A., Guides unless such hearing loss is ratable. 18 

Accordingly, as appellant does not have ratable hearing loss, the Board finds that he is not entitled 

to a schedule award for tinnitus.

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 permanent impairment.

CONCLUSION

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

loss for schedule award purposes.

 

17 See L.R., Docket No. 18-0823 (issued December 9, 2019); L.H., Docket No. 18-0696 (issued November 28, 

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

18 B.B., supra note 9; J.E., supra note 14.
6

ORDER

IT IS HEREBY ORDERED THAT the February 6, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 16, 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