United States Department of Labor

Employees’ Compensation Appeals Board

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R.R., Appellant

and

DEPARTMENT OF THE NAVY, MARINE 

EXPEDITIONARY FORCE, CAMP LEJEUNE, 

Jacksonville, NC, Employer

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Docket No. 19-0750

Issued: November 15, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On February 11, 2019 appellant filed a timely appeal from a December 21, 2018 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the December 21, 2018 decision, OWCP and the Board 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

ISSUES

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

13.4 percent binaural hearing loss, for which he previously received a schedule award; and

(2) whether OWCP used the proper pay rate in calculating appellant’s schedule award.

FACTUAL HISTORY

On April 25, 2018 appellant, then a 70-year-old boiler plant operator, filed an occupational 

disease claim (Form CA-2) alleging that he developed hearing loss due to factors of his federal 

employment including working around high pressure boilers, generators, and mechanical 

equipment. He first became aware of his condition and its relationship to his employment on 

April 16, 2018. On the reverse of the claim form, appellant’s supervisor indicated that appellant

had retired on April 30, 2018.

On September 18, 2018 OWCP referred appellant, a statement of accepted facts (SOAF), 

and an otologic evaluation questionnaire to Dr. Charles B. Beasley, a Board-certified 

otolaryngologist, for a second opinion evaluation. The SOAF indicated that from March 2006

until his retirement on April 30, 2018 appellant worked around high pressure boilers with eight 

hours per day of noise exposure and that hearing protection was provided.

In his October 3, 2018 report, Dr. Beasley reviewed the SOAF and completed the 

questionnaire. He diagnosed bilateral high frequency hearing loss and attributed this loss of 

hearing to noise exposure during appellant’s federal employment as a boiler plant operator. 

Dr. Beasley also diagnosed constant bilateral tinnitus due to appellant’s employment-related noise 

exposure. He reviewed appellant’s audiogram which demonstrated losses of 20, 35, 50, and 60 

decibels (dBs) on the left and 10, 25, 45, and 50 dBs on the right at 500, 1,000, 2,000, and 3,000 

hertz (Hz), respectively.

On October 22, 2018 appellant filed a claim for a schedule award (Form CA-7). On the 

reverse of the form, the employing establishment listed his date-of-injury pay rate as $38,798.00 

per year and noted that he stopped work on April 30, 2018.

By decision dated October 30, 2018, OWCP accepted appellant’s claim for bilateral 

sensorineural hearing loss and bilateral tinnitus.

On October 30, 2018 OWCP referred the medical evidence to its district medical adviser 

(DMA), Dr. Jeffrey M. Israel, a Board-certified otolaryngologist. Utilizing the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides)

3 The DMA reviewed the October 3, 2018 audiogram on November 1, 2018 and found 

that appellant had a right monaural loss of 11.25 percent, and a left monaural loss of 24.375 percent 

for a binaural loss of 13.4 percent. He determined that appellant reached maximum medical 

improvement (MMI) on October 3, 2018 the date of the most recent audiogram examination.

 

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

In a schedule award memorandum dated December 18, 2018, OWCP found that appellant’s 

binaural loss of 13.4 percent afforded him 26 weeks of compensation, more than the combined 

amount of his individual hearing losses of 5.72 weeks for the right ear and 12.48 weeks for the left 

ear. It utilized his weekly pay rate at the time of his retirement of $746.12 based on his annual 

salary of $38,798.00. OWCP found that appellant reached MMI on October 3, 2018.

By decision dated December 21, 2018, OWCP granted appellant a schedule award for 13.4 

percent binaural loss of hearing. It calculated the period of the award from October 3, 2018 

through April 2, 2019 and that his effective date of pay rate was April 30, 2018 and that he was 

entitled to the augmented 75 percent compensation rate of his weekly pay rate of $746.12 or 

$559.504 per week for a continuing payment every four weeks of $2,238.36.

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA5and its implementing regulations6set 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.7 For schedule awards after May 1, 2009, the impairment is evaluated 

under the sixth edition of the A.M.A., Guides, published in 2009.8

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 

 

4 The Board notes that this appears to be a typographical error in the calculation noted in the December 21, 2018 

decision. The correct weekly compensation rate is $559.59. This does not affect the monthly compensation rate listed 

in the decision as $2,238.36.

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404.

7

Id. at § 10.404; T.O., Docket No. 18-0659 (issued August 8, 2019); Jacqueline S. Harris, 54 ECAB 139 (2002).

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

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

and Exhibit 1 (January 2010).

9 T.O., supra note 7; John W. Montoya, 54 ECAB 306 (2003).

10 T.O., id.; Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).
4

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

everyday speech under everyday conditions.14 The remaining amount is multiplied by a factor of 

1.5 to arrive at the percentage of monaural hearing loss.15 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 the 

binaural hearing loss.16 The Board has concurred in OWCP’s adoption of this standard for 

evaluating hearing loss.17

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. 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.18

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.19

ANALYSIS -- ISSUE 1

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

13.4 percent binaural loss of hearing, for which he previously received a schedule award.

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

relative to his hearing loss. Dr. Beasley’s October 3, 2018 report related appellant’s audiogram 

 

11 T.O., id., Rose V. Ford, 55 ECAB 449 (2004).

12 T.O., id.; Vanessa Young, 55 ECAB 575 (2004).

13 T.O., id.; R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

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

15 Id.

16 Id.

17 T.O., supra note 7; E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

18 A.M.A., Guides 249.

19 Supra note 7 at Chapter 2.808.6(f).
5

findings and concluded that appellant’s binaural hearing loss was due to his workplace noise 

exposure.

On November 1, 2018 a DMA reviewed Dr. Beasley’s report and found testing for the right 

ear at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed dB losses of 10, 25, 45, 

and 50, respectively. These dBs were totaled at 130 and were divided by 4 to obtain an average 

hearing loss at those cycles of 32.5 dBs. The average of 32.5 dBs was then reduced by 25 dBs 

(the first 25 dBs were discounted as discussed above) to equal 7.5, which was then multiplied by 

1.5 to equal 11.25 percent hearing loss for the right ear.

Testing for the left ear at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed 

dB losses of 20, 35, 50, and 60, respectively. These dBs were totaled at 165 and divided by 4 to 

obtain the average hearing loss at those cycles of 41.25 dBs. The average of 41.25 was then 

reduced by 25 dBs to equal 16.25, which was multiplied by 1.5 to equal 24.375 percent hearing 

loss for the left ear. Dr. Israel determined the binaural loss by multiplying the lesser right-sided 

monaural loss of 11.25 by 5, adding the left-sided hearing loss of 24.375, and dividing the total by 

6, to find 13.4 percent binaural loss. 

The Board finds that there is no current medical evidence of record supporting ratable 

hearing loss greater than the 13.4 percent binaural hearing loss previously awarded. It is 

appellant’s burden of proof to submit evidence of additional hearing loss under OWCP’s

standardized procedures for rating hearing impairment.20 He has not submitted such evidence in 

support of his claim. 

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. 

LEGAL PRECEDENT -- ISSUE 2

Section 8107 of FECA provides that schedule award compensation for permanent 

impairment of a scheduled member shall be based on the employee’s monthly pay.21 Such 

compensation is to be based on the pay rate as determined under section 8101(4) which defines 

monthly pay as “[t]he monthly pay at the time of injury, or the monthly pay at the time disability 

begins, or the monthly pay at the time compensable disability recurs, if the recurrence begins more 

than six months after the injured employee resumes regular full-time employment with the United 

States, whichever is greater.”

22

 

20 R.H., Docket No. 18-1721 (issued March 25, 2019); J.W., Docket No. 17-1339 (issued August 21, 2018); J.B.,

Docket No. 15-1474 (issued March 4, 2016).

21 5 U.S.C. § 8107(a).

22 Id. at § 8101(4).
6

The Board has held that where an injury is sustained over a period of time the date of injury 

is the date of last exposure to those work factors causing injury.23 Applying this principle to 

schedule award claims, the Board has held that the date of injury is the date of the last exposure 

which adversely affects the impairment because every exposure which has an adverse effect (an 

aggravation) constitutes an injury.24 In a case where a claimant continues to be exposed to 

injurious work factors and the medical evidence documents continued worsening of the claimed 

condition, OWCP selects the date of last exposure to injurious work factors as the date of injury.25

ANALYSIS -- ISSUE 2

The Board finds that the case not in posture for a decision in regarding to appellant’s pay 

rate for schedule award purposes.

Appellant retired from the employing establishment effective April 30, 2018 and initially 

filed a schedule award claim on October 22, 2018 based on an occupational disease claim. He 

received a schedule award on December 21, 2018, for 13.4 percent binaural loss of hearing for

which he received compensation from October 3, 2018 through April 2, 2019 based on his weekly 

pay rate of $746.12. On appeal appellant claims that his schedule award compensation was paid 

at an improper pay rate. He alleges that due to previously accepted injuries he was working in a 

light-duty position and receiving wage-loss compensation for loss of wage-earning capacity from 

OWCP on April 30, 2018 the date that OWCP used to calculate his pay rate. Appellant asserts

that his hearing loss arose from noise exposure in the position of boiler plant operator, not his lightduty position of secretary on April 30, 2018 such that his pay rate should be based on his date of 

last exposure as a boiler plant operator.

OWCP utilized appellant’s weekly pay rate at the time of his retirement on April 30, 2018 

of $746.12 based on his annual salary of $38,798.00. It found that he reached MMI on 

October 3, 2018. Dividing the $38,798.00 figure by 52 weeks to convert to weekly pay received 

on April 30, 2018 yields $746.12, the figure that OWCP found to be appellant’s weekly pay rate. 

The record does not contain discussion of the date of his last exposure to hazardous noise or what 

his pay rate was at that time.

26

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

while the claimant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence. OWCP has an obligation to see that justice is 

done.27 In a case where OWCP “proceeds to develop the evidence and to procure evidence, it must 

 

23 D.A., Docket No. 18-1105 (issued January 10, 2019); J.S., Docket No. 17-1277 (issued April 20, 2018); 

Sherron A. Roberts, 47 ECAB 617 (1996).

24 D.A., id.; Barbara A. Dunnavant, 48 ECAB 517 (1997).

25 M.P., Docket No. 17-1736 (issued February 14, 2018); K.G., Docket No. 15-1476 (issued May 6, 2016); G.L., 

Docket No. 12-1795 (issued September 24, 2013).

26 Id.

27 M.P., supra note 25; John J. Carlone, 41 ECAB 354, 358-60 (1989).
7

do so in a fair and impartial manner.”

28

 Under FECA, although it is the burden of an employee to 

establish his or her claim, OWCP also has a responsibility in the development of the factual 

evidence, particularly when such evidence is of the character normally obtained from the 

employing establishment or other government source.29

On remand, in order to ensure a comprehensive and well-reasoned consideration of 

appellant’s pay rate for paying schedule award compensation, OWCP should ensure that his case 

record is complete with regard to the issue of date of last exposure to hazardous noise and the 

corresponding pay rate. After carrying out such development, it shall issue a de novo decision 

regarding whether he received schedule award compensation at a proper pay rate.30

CONCLUSION

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

13.4 percent binaural loss of hearing, for which he previously received a schedule award. The 

Board further finds the case not in posture for a decision in regards to appellant’s pay rate for 

schedule award purposes.

 

28 M.P., id.; Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).

29 L.G., Docket No. 17-0699 (issued August 8, 2018); Willie A. Dean, 40 ECAB 1208, 1212 (1989); Willie James 

Clark, 39 ECAB 1311, 1318-19 (1988).

30 Id.
8

ORDER

IT IS HEREBY ORDERED THAT the December 21, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded

for further action consistent with this decision of the Board.

Issued: November 15, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board