United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.C., Appellant

and

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA, Employer

__________________________________________

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Docket No. 20-0322

Issued: July 8, 2020

Appearances: Case Submitted on the Record

David Jennings, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 26, 2019 appellant, through counsel, filed a timely appeal from a 

November 1, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

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.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish more than 28 percent 

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

FACTUAL HISTORY

On October 10, 2018 appellant, then a 59-year-old quality assurance specialist, filed an 

occupational disease claim (Form CA-2) alleging that he suffered hearing loss in both ears due to 

factors of his federal employment. He noted that he first became aware of his condition and first 

realized it was caused or aggravated by his federal employment on February 1, 2017. Appellant

did not stop work. 

On January 10, 2019 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and copy of the medical record to Dr. Jeffrey Powell, Board-certified in otolaryngology, 

for a second opinion evaluation to determine the nature and extent of his employment-related 

conditions. 

In his February 14, 2019 medical report, Dr. Powell reviewed the SOAF, history of injury 

and the medical evidence of record. He noted mild-to-moderately severe neurosensory hearing 

loss from 500 Hertz (Hz) down to 8,000 Hz and recorded appellant’s speech threshold at 40 

decibels (dBs) in each ear, a speech discrimination score of 100 percent in the right ear and 96

percent in the left ear and a sensation level of 40 dBs in each ear. Dr. Powell reviewed appellant’s

audiometric testing results and, using the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment,

3

(A.M.A., Guides), found at 500, 1,000, 2,000 

and 3,000 Hz losses of 30, 35, 55 and 60 dBs on the right, respectively; and 35, 40, 45 and 55 on 

the left, respectively. He diagnosed bilateral neurosensory hearing loss with tinnitus secondary to 

this hearing loss. Dr. Powell found: 32 percent monaural hearing loss in the right ear, allowing 2 

percent for tinnitus; 30.125 percent monaural hearing loss in the left ear, allowing 2 percent for 

tinnitus; and 30.44 percent binaural hearing loss. He opined that appellant’s hearing loss was due 

to noise exposure in his federal employment and recommended an annual ear, nose, throat, and 

audiometric evaluation, bilateral hearing aids and the use of hearing protection devices around any 

and all types of loud noise exposure. 

By decision dated February 28, 2019, OWCP accepted appellant’s occupational disease 

claim for noise effects on the inner ear and tinnitus, unspecified ear.

On March 19, 2019 OWCP referred the medical record and SOAF to Dr. Charles Pettit, a 

Board-certified otolaryngologist serving as a district medical adviser (DMA), to determine the 

extent of appellant’s hearing loss and permanent impairment due to his employment-related noise 

exposure.

 

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

In his June 5, 2019 report,4 Dr. Pettit reviewed Dr. Powell’s February 14, 2019 report and 

found that it contained a mathematical error. He applied the audiometric data to OWCP’s standard 

for evaluation hearing loss under the sixth edition of the A.M.A., Guides and determined that 

appellant sustained a right monaural loss of 30 percent, a left monaural loss of 26.625 percent and 

binaural hearing loss of 25.52, increased to 27.52 for tinnitus. Dr. Pettit averaged appellant’s right 

ear hearing levels of 30, 35, 55, and 60 dBs at 500, 1,000, 2,000, and 3,000 Hz, respectively, which 

totaled 45. After subtracting out a 25 dB fence, he multiplied the remaining 20 balance by 1.5 to 

calculate 30 percent right ear monaural hearing loss. Dr. Pettit then averaged appellant’s left ear 

hearing levels of 35, 40, 45, and 55 dBs at 500, 1,000, 2,000, and 3,000 Hz, respectively, and 

totaled 42.75. After subtracting out a 25 dB fence, he multiplied the remaining 17.75 balance by 

1.5 to calculate 26.625 left ear monaural hearing loss. Dr. Pettit then calculated 28 percent binaural 

hearing loss by multiplying the left ear loss of 26.625 percent by five, adding the 30 percent right 

ear loss, and dividing this sum by six to get 25.52. He added 2 percent for tinnitus and rounded 

the sum of 27.52 to 28 percent. Dr. Pettit agreed with Dr. Powell’s recommendations for hearing 

conservation and hearing aids. 

On July 11, 2019 appellant filed a claim for a schedule award (Form CA-7).

By decision dated November 1, 2019, OWCP granted appellant a schedule award for 28 

percent binaural hearing loss. It found he had reached MMI on February 14, 2019. The period of 

the award was for 56 weeks to run during the period February 14, 2019 to March 11, 2020.

LEGAL PRECEDENT

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 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 sixth edition of the 

A.M.A., Guides7 has been adopted by OWCP for evaluating schedule losses and the Board has 

 

4 The Board notes that Dr. Pettit previously submitted a March 28, 2019 report in which he explained that he 

received no medical records or SOAF with which to conduct an examination. OWCP later provided him with an 

April 17, 2019 clarification request with the missing information. 

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404.

7 Supra note 3.
4

concurred in such adoption.8 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used 

to calculate schedule awards.9

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

A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each 

frequency are added up and averaged.10 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.11 The remaining amount is multiplied by a factor of 

1.5 to arrive at the percentage of monaural hearing loss.12 The binaural loss of hearing 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.13 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

ANALYSIS

The Board finds that the evidence of record establishes that appellant has 30 percent 

binaural hearing loss.

OWCP accepted appellant’s occupational disease claim for noise effects on the inner ear 

and tinnitus, unspecified ear, due to noise exposure at work and granted him a schedule award for 

28 percent binaural hearing loss based on the June 15, 2019 report of its DMA, Dr. Pettit.

In his report Dr. Pettit reviewed the record, including Dr. Powell’s February 14, 2019 

second opinion report, and provided an impairment evaluation. He applied the audiometric data 

 

8 V.M., Docket No. 18-1800 (issued April 23, 2019); see J.W., Docket No. 17-1339 (issued August 21, 2018).

9 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).

10 A.M.A., Guides 250.

11 Id.; C.D., Docket No. 18-0251 (issued August 1, 2018).

12 Id.

13 Id.

14 V.M., supra note 8.

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

16 Id.
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to OWCP’s standard for evaluation hearing loss under the sixth edition of the A.M.A., Guides17

and determined that appellant sustained a right monaural loss of 30 percent, a left monaural loss 

of 26.625 percent and binaural hearing loss of 27.52, rounded to 28 percent. Dr. Pettit noted that

Dr. Powell’s report was thorough with all salient points covered adequately and agreed with his 

recommendations for hearing conservation and hearing aids, but indicated that their calculations 

differed slightly as there appeared to be a mathematical error in Dr. Powell’s report. 

The Board finds that the DMA’s calculation of appellant’s hearing loss was in error. 

Specifically, the Board finds that while Dr. Pettit’s calculation of 30 percent monaural hearing loss 

for appellant’s right ear was correct, he erred in the calculation of appellant’s left ear monaural 

hearing loss as he incorrectly arrived at an average of 42.75 instead of 43.75 when averaging 

appellant’s left ear audiogram readings of 35, 40, 45, and 55 dBs at 500, 1,000, 2,000, and 3,000 

Hz, respectively. Consequently, the remainder of his calculations were incorrect.18 

In his February 14, 2019 report, Dr. Powell reviewed appellant’s audiometric test and 

found at 500, 1,000, 2,000, and 3,000 Hz losses of 30, 35, 55 and 60 dBs on the right, respectively; 

and 35, 40, 45 and 55 on the left, respectively. He added the losses of the right ear to arrive at 180 

and averaged the total to get 45.19 After subtracting out a 25 dB fence, Dr. Powell multiplied the 

remaining 20 balance by 1.5 to calculate 30 percent. He added two percent for tinnitus to calculate 

32 percent right ear monaural hearing loss. For the left ear, Dr. Powell added appellant’s losses to 

arrive at 175 and averaged the total to get 43.75.20 After subtracting out a 25 dB fence, he 

multiplied the remaining 18.75 by 1.5 to calculate 28.125 percent. Dr. Powell then added 2 percent 

for tinnitus to calculate 30.125 percent left ear monaural hearing loss. To calculate appellant’s 

binaural hearing loss, he multiplied the left ear loss percent by five, adding the 32 percent right ear 

loss, and dividing the sum by six, which totaled 30.44, rounding down to 30 percent binaural 

hearing loss.21

The Board finds that Dr. Powell properly applied the standards of the A.M.A., Guides in 

evaluating appellant’s hearing loss and his opinion is sufficiently well rationalized and based upon 

a proper factual and medical background. Dr. Powell correctly averaged appellant’s left ear 

hearing loss at 43.75. He then correctly arrived at binaural hearing loss of 28.125, rather than the 

26.625 incorrectly recorded by Dr. Pettit. After adding the two percent for tinnitus and rounding 

down, Dr. Powell properly arrived at a total binaural hearing loss impairment rating of 30 percent.22 

 

17 Supra note 3.

18 Using Dr. Pettit’s calculations, the average of appellant’s bilateral hearing loss is 27.19. Also, he incorrectly 

recorded 131.25 instead of 133.125 when he multiplied the left ear score of 26.625 by 5.

19 Supra note 13.

20 Id.

21 The policy of OWCP is to round the calculated percentage of impairment to the nearest whole number. Results 

should be rounded for figures less than .5 and up for .5 and over. See V.M., supra note 8; J.H., Docket No. 08-2432 

(issued June 15, 2009); Robert E. Cullison, 55 ECAB 570 (2004). 

22 See Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.808.5 (March 2017).
6

As he correctly calculated that appellant had 30 percent binaural hearing loss, the Board 

finds that appellant is entitled to an additional award of two percent. Accordingly, the 

November 1, 2019 schedule award shall be modified to reflect entitlement to an additional two 

percent permanent impairment, for a total binaural hearing loss of 30 percent. Upon return of the 

case file OWCP shall pay appellant an additional two percent impairment.

CONCLUSION

The Board finds that appellant has established that he has 30 percent binaural hearing loss. 

OWCP previously awarded 28 percent permanent impairment, and therefore, appellant is entitled 

to an additional schedule award for two percent permanent impairment for his binaural hearing 

loss.

ORDER

IT IS HEREBY ORDERED THAT the November 1, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed as modified.

Issued: July 8, 2020

Washington, DC

Christopher J. Godfrey, Deputy 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