United States Department of Labor

Employees’ Compensation Appeals Board

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D.L., Appellant

and

DEPARTMENT OF THE ARMY, U.S. ARMY 

CORPS OF ENGINEERS, Portland, OR, 

Employer

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Docket No. 19-0987

Issued: October 23, 2019

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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 4, 2019 appellant filed a timely appeal from a January 18, 2019 merit decision

and a March 22, 2019 nonmerit 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.2

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish greater than 

10 percent binaural hearing loss, for which he previously received schedule award compensation; 

 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the March22, 2019 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “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

and (2) whether OWCP properly denied appellant’s request for an oral hearing before an OWCP 

hearing representative as untimely filed under 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On March 27, 2018 appellant, then a 60-year-old production machinery mechanic, filed an 

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

causally related to factors of his federal employment. He indicated that he first became aware of 

his condition and its relationship to factors of his federal employment on December 20, 2010. 

OWCP received an employing establishment summary listing of appellant’s audiogram 

testing results from March 1, 1999 through February 16, 2017. 

On August 8, 2018 OWCP referred appellant for a second opinion evaluation with

Dr. Harold Kim, a Board-certified otolaryngologist. In his August 21, 2018 report, Dr. Kim 

examined appellant due to his history of hearing loss with tinnitus, and calculated a permanent 

impairment rating. He obtained an August 21, 2018 audiogram, which indicated that testing of the 

right ear at frequency levels of 500, 1,000, 2,000, and 3,000 Hertz (Hz) revealed decibel (dB) 

losses of 25, 30, 25, and 55, respectively. Pursuant to the standardized procedures, Dr. Kim totaled 

these dB losses at 135 and divided by 4 to obtain an average hearing loss at those cycles of 33.75 

dBs. The average of 33.75 dBs was then reduced by 25 dBs (the first 25 dBs were discounted as 

discussed below) to equal 8.75, which was then multiplied by 1.5 to equal 13.125 percent hearing 

loss for the right ear. Testing for the left ear at frequency levels of 500, 1,000, 2,000, and 3,000 

Hz revealed dB losses of 20, 20, 35, and 50, respectively. These dBs were totaled at 125 and were 

divided by 4 to obtain the average hearing loss at those cycles of 31.25 dBs, and then reduced by 

25 dBs to equal 6.25 which was then multiplied by 1.5 to equal 9.375 percent hearing loss for the 

left ear. To determine appellant’s binaural hearing loss, the lesser loss of 9.375 was multiplied by 

5 to total 46.875, the greater loss of 13.125 was then added to total 60, and was then divided by 6

to determine the binaural loss of 10 percent. Dr. Kim concluded that, pursuant to the sixth edition 

of the American Medical Association, Guides to the Evaluation of Permanent Impairment

(A.M.A., Guides),3 appellant had 10 percent binaural hearing loss. 

By decision dated September 24, 2018, OWCP accepted appellant’s claim for “noise 

effects on inner ear, bilateral and bilateral tinnitus.”

On September 27, 2018 Dr. Jeffrey M. Israel, a Board-certified otolaryngologist serving as 

an OWCP district medical adviser (DMA), reviewed appellant’s medical record and a statement 

of accepted facts (SOAF). He indicated that the earliest audiogram on record was dated 

March 1999 and that the latest audiogram on record was dated August 21, 2018. Dr. Israel 

concurred with Dr. Kim’s assessment of 10 percent binaural hearing loss. He determined the date 

of maximum medical improvement was August 21, 2018, the date of appellant’s last audiogram. 

Dr. Israel also noted that, while Dr. Kim related that appellant was bothered by constant ringing in 

the ears, there was no discussion of tinnitus in the records other than that and no suggested tinnitus 

impairment score. He indicated that a tinnitus handicap inventory would be useful. 

 

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

By decision dated October 24, 2018, OWCP accepted appellant’s claim for binaural 

sensorineural hearing loss and tinnitus. 

On November 13, 2018 appellant filed a claim for a schedule award (Form CA-7).

By decision dated January 18, 2019, OWCP granted appellant a schedule award for 10 

percent binaural hearing loss. The award ran from August 22, 2018 to January 8, 2019, for a total 

of 140 days of compensation. 

On February 27, 2019 appellant requested a telephonic oral hearing before an OWCP 

hearing representative.

By decision dated March 22, 2019, OWCP’s hearing representative determined that 

appellant was not entitled to an oral hearing as a matter of right because his request was untimely 

filed. The hearing representative also denied a discretionary hearing, finding that the contested 

issue could equally well be addressed by appellant requesting reconsideration and providing new 

evidence or argument to establish that he had a greater percentage of permanent impairment than 

awarded.

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA4 and its implementing regulations5 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment for 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 determination is a matter which rests in the 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. OWCP evaluates the degree of 

permanent impairment according to the standards set forth in the specified edition of the A.M.A., 

Guides. For decisions issued after May 1, 2009, OWCP began using the sixth edition of the 

A.M.A., Guides.

6

 The Board has approved OWCP’s use 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. 7

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

A.M.A., Guides.

8

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

 

4

5 U.S.C. §§ 8101-8193, 8107.

5

20 C.F.R. § 10.404.

6 A.M.A., Guides (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and 

Permanent Disability Claims, Chapter 2.808.6a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, 

Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

7 R.H., Docket No. 18-1721 (issued March 25, 2019); P.R., Docket No. 19-0022 (issued April9, 2018); Isidoro 

Rivera, 12 ECAB 348 (1961).

8 R.B., Docket No. 19-0257 (issued August 5, 2019); A.G., Docket No. 17-1778 (issued December 18, 2018); E.S.,

59 ECAB 249 (2007); ReynaldoR. Lichetenberger, 52 ECAB 462 (2001).
4

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.9 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 and then added to the greater loss and the total is divided by six to arrive at the amount of the 

binaural hearing loss.10

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.11 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.12

ANALYSIS -- ISSUE 1

The Board finds that the case is not in posture for decision. 

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

to his hearing loss.13 On September 27, 2018 Dr. Israel, serving as OWCP’s DMA, reviewed

Dr. Kim’s report and concurred with his findings and conclusions. Both Dr. Kim and Dr. Israel 

properly applied the standardized procedures to the August 21, 2018 audiogram performed for

Dr. Kim to determine that appellant had a 10 percent binaural hearing loss. 

However, the Board finds that the case is not in posture for decision as OWCP did not 

properly develop whether appellant was entitled to an additional schedule award for his accepted 

tinnitus. As noted above, the A.M.A., Guides provides that, “if tinnitus interferes with activities 

of daily living, such as sleep, reading, enjoyment of quiet recreation, and emotional wellbeing, up 

to five percent may be added to a measurable binaural hearing impairment”

14

It is well established that proceedings under FECA are not adversarial in nature and OWCP 

is not a disinterested arbiter.15 While the claimant has the burden of proof to establish entitlement 

to compensation, OWCP shares responsibility in the development of the evidence and to see that 

justice is done.16 Once OWCP undertook development of the evidence it had a duty to secure an 

 

9 A.M.A., Guides at 250 (6th ed. 2009).

10 Id.

11 See id. at 249 (6th ed. 2009).

12 Id.

13 Id.

14 Supra note 12. 

15 T.O., Docket No. 18-0659 (issued August 8, 2019). 

16 Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999); WilliamJ. Cantrell,

34 ECAB 1233, 1237 (1983).
5

appropriate report addressing the relevant issues.17 OWCP accepted the claim for tinnitus, but

Dr. Israel noted that the record did not provide documentation of a tinnitus impairment score. 

Dr. Israel recommended that a tinnitus handicap inventory be prepared. However, it did not obtain 

any further documentation relative to appellant’s tinnitus. Since OWCP did not obtain the 

necessary evidence to determine appellant’s entitlement to an additional award for tinnitus, the 

case will be remanded to OWCP to obtain the necessary documentation. Following this and any 

necessary further development, it shall issue a de novo decision relative to the extent and degree 

of appellant’s hearing impairment.18

CONCLUSION

The Board finds that this case is not in posture for decision. 

IT IS HEREBY ORDERED THAT the March 22 and January 18, 2019 decisions of the 

Office of Workers’ Compensation Programs are set aside and the case is remanded for further 

proceedings consistent with this decision of the Board.

Issued: October 23, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

17 PeterC. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi, 56 ECAB 234 (2004).

18 In light ofthe Board’s disposition of issue 1, issue 2 is renderedmoot.