United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.E., Appellant

and

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer

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Docket No. 19-1620

Issued: March 9, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 25, 2019 appellant filed a timely appeal from a March 26, 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.2

 

1 5 U.S.C. § 8101 et seq. 

2 The Board notes that, following the March 26, 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

ISSUE

The issue is whether appellant has met his burden of proof to establish greater than 14

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

FACTUAL HISTORY

On June 20, 2018 appellant, then a 61-year-old marine machinery mechanic, filed an 

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

loss and ringing in his ears due to factors of his federal employment. He noted that he first became 

aware of the condition on February 27, 2016 and first attributed the condition to factors of his 

federal employment on July 27, 2016. Appellant was last exposed to the employment factors on 

August 31, 2016 the date of his retirement. 

In a development letter dated June 22, 2018, OWCP informed appellant that the evidence 

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

evidence needed and provided a questionnaire for his completion. In a separate development letter 

of even date, OWCP notified the employing establishment of appellant’s occupational disease 

claim. It requested additional information regarding his exposure to noise due to factors of his 

federal employment. OWCP afforded both parties 30 days to submit the necessary information.

On June 28, 2018 appellant responded to OWCP’s development questionnaire. He noted 

that, from 1975 to 1978, he worked in an engine room where he was exposed to noise 8 to 10 hours 

a day. From 1979 to 1986, appellant reported working as a machinist repairing ships using loud

pneumatic tools, grinders, chippers, and hammers. From 1987 to 2016, he indicated that he worked 

in engine rooms and dry docks and was exposed to loud industrial noises, including blowers, 

exhaust fans, sandblasting equipment, grinders, chippers, and hammers. Appellant noted that the 

employing establishment provided earplugs over the course of his employment. 

On August 14, 2018 the employing establishment confirmed sound level readings for 

equipment and processes which could have been present in appellant’s work environment. 

In an August 27, 2018 report, Robin Fescues, an audiologist, noted that appellant 

experienced constant bilateral tinnitus and reported having significant difficulty understanding in 

the presence of background noise. She also found that pure tone audiometry revealed mild-sloping 

to moderately-severe mixed hearing loss in both of his ears. 

On November 15, 2018 OWCP referred appellant, a statement of accepted facts (SOAF), 

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

a Board-certified otolaryngologist. In a report dated December 13, 2018, Dr. Treyve reviewed the 

SOAF, obtained an audiological examination, and completed OWCP’s evaluation questionnaire. 

He diagnosed bilateral sensorineural hearing loss and tinnitus and opined that the workplace 

exposure described in the SOAF “was sufficient in intensity and duration to have contributed to 

the hearing loss in question.” Dr. Treyve reviewed the audiogram report of December 13, 2018 

from audiologist Lynn E. Byrne, which demonstrated losses of 25, 20, 35, and 55 decibels (dBs) 

on the left and 20, 25, 35, and 60 dBs on the right at 500, 1,000, 2,000, and 3,000 Hertz (Hz), 

respectively. Utilizing the sixth edition of the American Medical Association, Guides to the 
3

Evaluation of Permanent Impairment (A.M.A., Guides),

3 he calculated that appellant had a left 

monaural loss of 13.125 percent and a right monaural loss of 15 percent for a binaural loss of 13.44 

percent. Dr. Treyve further rated appellant’s tinnitus at one percent impairment in each ear. 

By decision dated December 20, 2018, OWCP accepted appellant’s claim for binaural 

hearing loss and bilateral tinnitus. 

On December 20, 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). On January 20, 2019 Dr. Israel concurred with Dr. Treyve’s

assessment of a 13.4 percent binaural loss and a 1 percent tinnitus impairment for a total binaural 

award of 14.4 percent. He determined that the date of MMI was December 13, 2018, the date of 

appellant’s last audiogram. 

On February 13, 2019 appellant filed a claim for a schedule award (Form CA-7). 

In a letter dated February 21, 2019, OWCP requested that Dr. Israel clarify his opinion 

regarding appellant’s entitlement to a tinnitus award. It pointed out that Dr. Treyve had opined 

that appellant should be rated for one percent tinnitus in each ear; therefore, Dr. Israel was asked 

to recalculate appellant’s total binaural hearing loss. 

In a February 27, 2019 report, Dr. Israel clarified that he found one percent tinnitus award

because Dr. Treyve implied that appellant’s activities of daily living (ADLs) were minimally 

impacted. However, he recommended using a tinnitus handicap inventory (THI) to render a 

tinnitus award. Dr. Israel noted that the A.M.A., Guides suggest using a THI and that the “THI is 

a widely used measure for tinnitus handicap that has been extensively researched and proven to 

have both consistent reliability and repeatability.” He attached a THI with his report and indicated 

that “I would suggest leaving the binaural score that I calculated as is due to the fact that Dr. Treyve 

implied that the ADLs were impacted minimally, thus, yielding a one percent award.” 

Alternatively, Dr. Israel suggested that, if OWCP had appellant to complete the THI, he would “be 

happy to review it and adjust the award accordingly.” 

By decision dated March 26, 2019, OWCP granted appellant a schedule award for 14 

percent binaural hearing loss. The award ran from December 13, 2018 to June 26, 2019 for a total 

of 28 weeks of compensation.

LEGAL PRECEDENT

The schedule award provisions of FECA4and its implementing regulations5set 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 

 

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

4 5 U.S.C. § 8107.

5 20 C.F.R. § 10.404.
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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 

the uniform standard applicable to all claimants.6 As of May 1, 2009, the sixth edition of the 

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

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.9

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.10 If tinnitus interferes with ADLs, including 

sleep, reading, and other tasks requiring concentration, up to five percent may be added to a

measurable binaural hearing impairment.11

ANALYSIS

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

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

determine his entitlement to a schedule award for his hearing loss.12 Dr. Treyve’s December 13, 

2018 report reviewed appellant’s audiogram findings and concluded that appellant’s bilateral 

hearing loss and tinnitus were due to his workplace noise exposure. On January 20, 2019

Dr. Israel, serving as OWCP’s DMA, reviewed Dr. Treyve’s report and concurred with his 

findings and conclusions.

Dr. Treyve and Dr. Israel both properly applied the standardized procedures to the 

December 13, 2018 audiogram report to determine that appellant had 13.4 percent binaural hearing 

 

6

Id. at § 10.404(a).

7 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).

8 A.M.A., Guides at 250.

9 E.C., Docket No. 19-1007 (issued November 8, 2019).

10 See A.M.A., Guides at 249.

11 Id.

12 Id.
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loss. Testing for the left ear at frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed dB 

losses of 25, 20, 35, and 55 respectively for a total loss of 135 dBs. Testing for the right ear at the 

same frequency levels revealed dB losses of 20, 25, 35, and 60 for a total loss of 140 dBs. The 

total dB losses were averaged by dividing by 4 to obtain an average hearing loss of 33.75 dBs in 

the left ear and 35 dBs in the right ear. After subtracting the 25 dB fence and multiplying by 1.5

(as explained above), a 13.125 percent monaural loss was found for the left ear, and a 15 percent 

monaural loss was found for the right ear.

However, OWCP did not properly develop appellant’s degree of impairment for his 

accepted bilateral 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 

well being, up to five percent may be added to a measurable binaural hearing impairment.13

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

is not a disinterested arbiter.14 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.15 Once OWCP undertook development of the evidence it had a duty to secure an 

appropriate report addressing the relevant issues.16

OWCP issued a one percent tinnitus impairment award, resulting in a total schedule award 

for 14 percent binaural hearing loss. However, the DMA, Dr. Israel, noted that he based this award 

on Dr. Treyve’s abbreviated statement that appellant “has noted a bilateral high-pitched tinnitus 

for approximately 20 years which is persistent, typically better in the morning and worse as the 

day goes on. It is rarely bothersome.” This statement does not fully address whether appellant’s 

tinnitus impacted his ADLs, such as sleep, reading, enjoyment of quiet recreation, and emotional 

wellbeing. Dr. Israel recommended that a THI be prepared to render a tinnitus award. He attached 

a THI to his February 27, 2019 report and indicated that he would adjust the tinnitus award if 

OWCP had appellant complete it. However, OWCP did not obtain a THI from appellant or any 

further documentation regarding appellant’s tinnitus. Since it did not obtain the necessary 

evidence to properly determine his entitlement to an award for his accepted bilateral tinnitus, the 

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

necessary further development, OWCP shall issue a de novo decision on appellant’s claim for 

schedule award. 

CONCLUSION

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

 

13 Id.

14 D.L., Docket No. 19-0987 (issued October 23, 2019); T.O., Docket No. 18-0659 (issued August 8, 2019).

15 D.L., id.; Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999).

16 D.L., id.; Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi, 56 ECAB 234 (2004).
6

ORDER

IT IS HEREBY ORDERED THAT the March 26, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: March 9, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board