United States Department of Labor

Employees’ Compensation Appeals Board

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K.C., Appellant

and

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer

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Docket No. 19-1185

Issued: November 12, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On May 3, 2019 appellant filed a timely appeal from a January 16, 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 that he developed 

binaural hearing loss causally related to the accepted factors of his federal employment.

FACTUAL HISTORY

On September 14, 2018 appellant, then a 53-year-old deputy project superintendent, filed 

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

 

1 5 U.S.C. § 8101 et seq.
2

due to exposure to hazardous noise in the course of his federal employment. He noted that he first 

became aware of his claimed condition and its relation to his federal employment on 

September 5, 2013.

In support of his claim, appellant provided an April 4, 2017 report from Dr. Todd Jones, 

an otolaryngologist, who noted gradual hearing loss and that appellant first became aware of same

in 2013. He denied tinnitus or vertigo. Dr. Jones diagnosed sensorineural hearing loss and 

recommended hearing aids. Appellant also underwent an audiogram on February 22, 2017. He 

provided a September 5, 2013 audiogram and audiologic report which diagnosed asymmetrical 

hearing loss.

In an October 24, 2018 development letter, OWCP advised appellant of the deficiencies of 

his claim. It requested additional factual and medical evidence from him and provided a 

questionnaire for his completion. OWCP afforded appellant 30 days to respond. In a separate 

development letter of even date, it requested that the employing establishment provide comments 

from a knowledgeable supervisor on the accuracy of his statements, describe the sources of 

exposure to noise, and provide a copy of all medical examinations and audiograms pertaining to 

hearing or ear problems. OWCP again afforded appellant 30 days to respond.

On October 26, 2017 appellant provided his employment history as a sheet metal mechanic 

from 1982 through 1987, a ship fitter from 1987 through 1997, and as a deputy project 

superintendent beginning in 1997. He alleged that he was exposed to noise from chippers, 

grinders, sandblasters, as well as to noise from ship checks and job oversite on the waterfront. On 

October 30, 2018 appellant responded to OWCP’s questions and noted that his hearing loss was 

detected during the annual hearing test administered by the employing establishment. 

On November 12, 2018 the employing establishment provided copies of appellant’s yearly 

audiogram findings from August 4, 1984 through September 5, 2013.

On December 14, 2018 OWCP referred appellant, a statement of accepted facts (SOAF), 

and otologic evaluation, for an audiogram and second opinion evaluation with Dr. Edward Treyve, 

a Board-certified otolaryngologist.

In his January 3, 2019 report, Dr. Treyve reviewed appellant’s history of employmentrelated noise exposure and his audiogram. He found mild-to-moderate high-frequency 

sensorineural loss on the right and moderate-to-severe sensorineural loss on the left. Dr. Treyve 

diagnosed binaural asymmetric sensorineural hearing loss. He opined that appellant’s hearing loss 

was not related to occupational noise exposure. Dr. Treyve noted that occupational noise-induced 

hearing loss was typically fairly symmetric, while appellant had left-sided high-frequency hearing 

loss dating back to 2004 with normal hearing in the right ear through 2013. He also noted that 

occupational noise-induced hearing loss did not typically manifest late in the career and that 

appellant’s hearing on the right was normal in 2013, 31 years after the start of employment. 

Dr. Treyve further noted that during appellant’s last 21 years of employment he had minimal noise 

exposure. He concluded that the cause of appellant’s current hearing loss on the right was 

presbycusis. Dr. Treyve further determined that the asymmetry of hearing loss on the left was 

related to causes other than occupational noise exposure or presbycusis such as a possible 

retrocochlear lesion. He found that while workplace exposure was of sufficient intensity and 
3

duration to have contributed to appellant’s hearing loss, he did not believe that it did so, due to 

mitigation through proper ear protection.

By decision dated January 16, 2019, OWCP accepted that appellant had noise exposure 

during the course of his federal employment and accepted that the medical evidence supported 

binaural high frequency sensorineural hearing loss. However, it denied his occupational disease 

claim finding that the medical evidence of record failed to establish causal relationship between 

his hearing loss and his accepted employment exposure.

LEGAL PRECEDENT

An employee seeking benefits under FECA2 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation of FECA,3that an injury was sustained in the performance of duty as alleged, and 

that any disability or medical condition for which compensation is claimed is causally related to 

the employment injury.4 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5

In an occupational disease claim, to establish that an injury was sustained in the 

performance of duty, a claimant must submit the following: (1) a factual statement identifying 

employment factors alleged to have caused or contributed to the presence or occurrence of the 

disease or condition;6(2) medical evidence establishing the presence or existence of the disease or 

condition for which compensation is claimed;7and (3) medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the claimant.8

The medical evidence required to establish causal relationship is rationalized medical 

opinion evidence.9 Rationalized medical opinion evidence is medical evidence which includes a 

physician’s rationalized opinion on the issue of whether there is causal relationship between the 

claimant’s diagnosed condition and the implicated employment factors. The opinion of the 

 

2

Id.

3 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

5 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).

6 C.C., Docket No. 18-1229 (issued March 8, 2019); Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 

468 (2001).

7 R.A., Docket No. 16-1218 (issued November 10, 2016); Michael R. Shaffer, 55 ECAB 386 (2004).

8 T.J., Docket No. 17-1850 (issued February 14, 2018); Beverly A. Spencer, 55 ECAB 501 (2004).

9 M.B., Docket No. 17-1999 (issued November 13, 2018).
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physician must be based on a complete factual and medical background of the claimant, must be 

one of reasonable medical certainty, and must be supported by medical rationale explaining the 

nature of the relationship between the diagnosed condition and the specific employment factors 

identified by the claimant.10 Neither the condition becoming apparent during a period of 

employment, nor the belief of the employee that the hearing loss was causally related to noise 

exposure in federal employment, is sufficient to establish causal relationship.11 

ANALYSIS

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

loss causally related to the accepted factors of his federal employment.

OWCP referred appellant to Dr. Treyve for a second opinion evaluation regarding 

appellant’s hearing loss claim. Dr. Treyve concluded that appellant did not have sensorineural 

hearing loss due to his federal employment. In a report dated January 3, 2019, he related 

examination findings, reviewed the SOAF and diagnosed bilateral sensorineural hearing loss with 

asymmetry involving the left ear. Dr. Treyve noted that occupational noise exposure was typically 

fairly symmetric and opined that the hearing loss in appellant’s left ear was not related to 

occupational noise, but rather was related to a possible retrocochlear lesion.

The Board finds that Dr. Treyve’s January 3, 2019 report represents the weight of the 

medical evidence and establishes that appellant’s sensorineural hearing loss was not due to 

exposure to noise in the workplace.12 Dr. Treyve’s opinion is based on a proper factual and 

medical history as he reviewed current audiometric test results and related his findings on 

examination and testing in support of his opinion that appellant’s hearing loss was not due to the 

exposure to noise in his federal employment.13

As the medical evidence of record is insufficient to establish that appellant had binaural

hearing loss causally related to the accepted factors of his federal employment, appellant has not 

met his burden of proof.14

 

10 T.K., Docket No. 19-0074 (issued May 15, 2019); M.L., Docket No. 18-1605 (issued February 26, 2019).

11 C.C., supra note 6.

12 T.K., supra note 10; R.B., Docket No. 18-0720 (issued November 13, 2018); see R.J., Docket No. 11-1644 (issued 

February 14, 2012); J.L., Docket No. 07-1740 (issued December 20, 2007).

13 R.B., id.; see R.J., id.; J.L., id.

14 A properly completed CA-16 form authorization may constitute a contract for payment of medical expenses to a 

medical facility or physician, when properly executed. The form creates a contractual obligation, which does not 

involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the 

claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance, 

unless terminated earlier by OWCP. 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737 (issued November 2, 2018); 

N.M., Docket No. 17-1655 (issued January 24, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).
5

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

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

developed binaural hearing loss causally related to the accepted factors of his federal employment.

ORDER

IT IS HEREBY ORDERED THAT the January 16, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 12, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board