United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.W., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION,

San Antonio, TX, Employer

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Docket No. 20-0924

Issued: January 26, 2021

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 March 29, 2020 appellant filed a timely appeal from a February 10, 2020 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 more than eight

percent monaural (left ear) hearing loss for which he previously received a schedule award.

FACTUAL HISTORY

On August 22, 2019 appellant, then a 63-year-old customs and border protection (CBP) 

officer, filed an occupational disease claim (Form CA-2) alleging that he developed hearing loss 

 

1 5 U.S.C. § 8101 et seq.
2

due to factors of his federal employment. He noted that he first became aware of his condition on 

May 16, 2017 and first realized it was caused or aggravated by his federal employment on 

July 1, 2003. Appellant explained that, as a CBP officer, he worked around loud noises such as 

large crowds of people, cars, 18-wheeler trucks, and airplanes landing and taking off. He did not 

stop work.

In a development letter dated August 29, 2019, OWCP advised appellant of the deficiencies 

of his claim and instructed him as to the factual and medical evidence necessary to establish his 

claim. It provided a questionnaire for his completion and requested that he submit a narrative 

medical report from his physician, which contained a detailed description of findings and 

diagnoses, explaining how his employment duties caused or aggravated his medical condition. In 

a separate development letter of even date, OWCP requested that the employing establishment 

provide additional information regarding appellant’s exposure to noise due to factors of his federal 

employment, including comments from a knowledgeable supervisor regarding the accuracy of his 

statements. It afforded both parties 30 days to respond. 

In an August 9, 2017 medical report, Dr. Jeremy Biggs, Board-certified in occupational 

medicine, provided appellant with the results of a May 16, 2017 audiogram evaluation performed 

by a physician with an illegible signature. He checked a box to indicate an “abnormal hearing --

baseline” and on review of the audiometric testing results, found at 500, 1,000, 2,000, and 3,000 

Hertz (Hz) losses of 10, 5, 10, and 15 decibels (dBs) on the right, respectively; and 5, 0, 10, and 

10 dBs on the left, respectively.

In a September 5, 2019 response to OWCP’s questionnaire, appellant recounted his history 

of employment beginning in 2002 when he was assigned to the Port of Laredo, Texas. He listed 

the loud noises he was exposed to, such as airplanes landing and taking off, loud crowds of people

and working in vehicle lanes inspecting cars and trucks. Appellant indicated that his hearing first 

began to get progressively worse in 2003 until 2017 when his hearing test came back abnormal. 

He noted that he had no hearing problems prior to his federal employment and no hobbies or daily 

activities that involved loud noises. Appellant acknowledged that the employing establishment 

provided earplugs during fire arm qualifications and private plane processing. He concluded by 

asserting that he is still exposed to these noises daily and that his hearing appears to be worsening.

On September 24, 2019 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and copy of the medical record, to Dr. John Edwards, a Board-certified otolaryngologist, 

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

conditions.

In his October 15, 2019 medical report, Dr. Edwards reviewed the SOAF, history of injury 

and the medical evidence of record. He noted that appellant showed sensorineural hearing loss 

and recognized his description of severe tinnitus that interfered with his activities of daily living 

(ADLs). Dr. Edwards reviewed his audiometric testing results and, using the sixth edition of the 

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

2

(A.M.A., 

Guides), found at 500, 1,000, 2,000, and 3,000 Hz losses of 20, 20, 25, and 35 dBs on the right, 

respectively; and 30, 25, 30, and 35 dBs on the left, respectively. He diagnosed bilateral 

 

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

sensorineural hearing loss and bilateral tinnitus. Dr. Edwards found zero percent monaural hearing 

loss in the right ear, eight percent monaural hearing loss in the left ear and one percent binaural 

hearing loss. He allowed four percent for tinnitus for a total of five percent binaural hearing loss. 

Dr. Edwards opined that appellant’s sensorineural hearing loss, in part, was due to noise exposure 

he encountered during his federal employment and found that he reached maximum medical 

improvement (MMI) on October 15, 2019. He recommended yearly audiograms, hearing aid 

amplification and a tinnitus masker as needed.

By decision dated November 26, 2019, OWCP accepted appellant’s occupational disease 

claim for bilateral sensorineural hearing loss and bilateral tinnitus. 

On November 26, 2019 OWCP referred the medical evidence of record and an updated 

SOAF to Dr. Jeffrey Israel, a Board-certified otolaryngologist, acting as an OWCP district medical 

adviser (DMA). It requested that the DMA review Dr. Edwards’ medical report and provide an 

opinion regarding appellant’s permanent impairment due to his bilateral sensorineural hearing loss 

and bilateral tinnitus under the standards of the sixth edition of the A.M.A., Guides.

On December 2, 2019 appellant filed a claim for a schedule award (Form CA-7).

In his December 3, 2019 medical report, Dr. Israel reviewed the SOAF, history of injury 

and medical evidence of record. He determined that the date of MMI was October 15, 2019, the 

date of appellant’s latest audiogram, and concurred with Dr. Edwards’ determination of five

percent binaural hearing loss, with four percent allowed for tinnitus. Dr. Israel repeated

Dr. Edwards’ suggestions of yearly audiograms, noise protection for appellant’s ears and 

authorization for hearing aids. 

In a February 10, 2020 decision, OWCP granted appellant a schedule award for eight

percent permanent loss of use of monaural left ear hearing loss. It found that he reached MMI on 

October 15, 2019. The period of the award was for 4.16 weeks to run during the period October 15 

to November 13, 2019. 

LEGAL PRECEDENT

The schedule award provisions of FECA3and its implementing regulations4set 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., Guides5 has been adopted by OWCP for evaluating schedule losses and the Board has 

 

3 5 U.S.C. § 8107.

4 20 C.F.R. § 10.404.

5 Supra note 2.
4

concurred in such adoption.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. Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each 

frequency are added up and averaged.8 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.10 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.11 The Board has concurred in OWCP’s adoption of this 

standard for evaluating hearing loss.12

Regarding tinnitus, the A.M.A., Guides provides that tinnitus is not a disease, but rather a 

symptom that may be the result of a disease or injury.13 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.14

It is well established that, if calculations based on the monaural hearing loss would result 

in greater compensation than calculations for binaural loss, then the monaural hearing loss 

calculations should be used.15

ANALYSIS

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

 

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

7 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).

8 A.M.A., Guides 250.

9

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

10 Id.

11 Id.

12 See V.M., supra note 6.

13 See A.M.A., Guides 249.

14 Id.

15 Reynoldo R. Lichtenberger, 52 ECAB 462 (2001); B.B., Docket No. 16-0512 (issued May 17, 2016).
5

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

determine his entitlement to a schedule award for his hearing loss.16 Dr. Edwards’ October 15, 

2019 report reviewed appellant’s audiogram findings and concluded that appellant’s bilateral 

hearing loss and tinnitus were due to his workplace noise exposure. On December 3, 2019

Dr. Israel, serving as an OWCP DMA, reviewed Dr. Edwards’ report and concurred with his 

findings and conclusions.

The Board finds that Dr. Edwards and Dr. Israel both properly applied the standardized 

procedures to the October 15, 2019 audiogram report to determine that appellant had developed 

five percent binaural hearing loss. Testing for the right ear at frequency levels of 500, 1,000, 

2,000, and 3,000 Hz revealed dB losses of 20, 20, 25, and 35 respectively, for a total loss of 100

dBs. Testing for the left ear at the same frequency levels revealed dB losses of 30, 25, 30, and 35 

on the right, respectively and 30, 25, 30, and 35 dBs on the left, respectively, for a total loss of 120 

dBs. The total dB losses were averaged by dividing by 4 to obtain an average hearing loss of 23.75 

dBs in the right ear and 30 dBs in the left ear. After subtracting the 25 dB fence and multiplying 

by 1.5 (as explained above), 0 percent monaural hearing loss was found for the right ear and 7.5 

percent monaural hearing loss was found for the left ear. The binaural loss of hearing was then 

determined by multiplying appellant’s 0 percent right ear monaural hearing loss by 5 to get 0, then 

adding his 7.5 percent left ear monaural hearing loss and dividing the total by 6, which totaled 

1.25, rounding down to 1 percent binaural hearing loss.17 Drs. Edwards and Israel both indicated 

that appellant’s tinnitus interfered with his ADLs and allowed an additional four percent for his 

bilateral tinnitus, for a total binaural hearing loss of five percent.

However, OWCP did not include appellant’s degree of impairment for his accepted 

bilateral tinnitus when it calculated his schedule award. As noted above, the A.M.A., Guides

provide that, if tinnitus interferes with ADLs, 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.18 OWCP did not include appellant’s four percent tinnitus impairment rating when 

calculating his total schedule award and, therefore, determined that his eight percent left ear 

monaural hearing loss would result in greater compensation than the calculation for his one percent

binaural hearing loss.19

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

is not a disinterested arbiter.20 While the claimant has the burden of proof to establish entitlement 

 

16 Supra note 13.

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

should be rounded down for figures less than .5 and up for .5 and over. See V.M., supra note 6; J.H., Docket No. 

08-2432 (issued June 15, 2009); Robert E. Cullison, 55 ECAB 570 (2004).

18 Supra note 13.

19 Supra note 15.

20 Y.D., Docket No. 19-1200 (issued April 6, 2020); Vanessa Young, 56 ECAB 575 (2004).
6

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

justice is done.21

As OWCP did not include appellant’s four percent tinnitus impairment rating when it 

calculated his schedule award, the Board finds that it did not properly develop his schedule award 

claim with regard to whether his diagnosed tinnitus warranted an increased impairment rating. 

This case must therefore be remanded to OWCP for recalculation of appellant’s hearing loss 

pursuant to OWCP procedures. After such further development as necessary, OWCP shall issue 

a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the February 10, 2020 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: January 26, 2021

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

 

21 E.S., Docket No. 18-1312 (issued April 3, 2020).