United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.R., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

Falfurrias, TX, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 21-0909

Issued: January 14, 2022

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 May 27, 2021 appellant filed a timely appeal from an April 19, 2021 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 ratable hearing loss 

for schedule award purposes.

FACTUAL HISTORY

On March 16, 2020 appellant, then a 48-year-old supervisory border patrol agent, filed an 

occupational disease claim (Form CA-2) alleging that he developed hearing loss, greater on the 

1

5 U.S.C. § 8101 et seq.
2

left than the right, due to factors of his federal employment including exposure to high volume 

noise and use of an earpiece for radio communication. He noted that he first became aware of his 

condition and realized its relation to factors of his federal employment on March 16, 2020. 

Appellant explained that he had been exposed to these employment factors over his 24 years of 

federal service. He did not stop work.

In a development letter dated May 14, 2020, OWCP informed appellant that additional 

medical and factual evidence was necessary to establish his claim. It informed him regarding the 

evidence necessary and provided a factual questionnaire for his completion. Appellant was 

afforded 30 days to submit the requested evidence.

On July 11, 2020 OWCP received a summary of appellant’s employment history, which 

noted his alleged exposure to loud noise.

On July 17, 2020 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and the medical record to Dr. Paul W. Loeffler, a Board-certified otolaryngologist serving 

as second opinion physician, regarding the nature, extent, and causal relationship of his hearing 

loss.

In a July 27, 2020 report, Dr. Loeffler reviewed the SOAF, history of injury, and medical 

evidence of record. Audiometric testing obtained on August 7, 2020 at the frequencies of 500, 

1,000, 2,000, and 3,000 Hertz (Hz) revealed losses at 15, 15, 15, and 20 decibels (dBs) for the right 

ear, respectively; and 20, 15, 15, and 30 dBs for the left ear, respectively. Dr. Loeffler diagnosed 

tinnitus and left-sided sensorineural hearing loss, opining that appellant’s sensorineural hearing 

loss and tinnitus were due to noise exposure encountered in appellant’s federal employment.

OWCP accepted appellant’s claim for bilateral sensorineural hearing loss and bilateral 

tinnitus by decision dated October 26, 2020.

On November 25, 2020 OWCP referred the medical record and SOAF to Dr. Jeffrey Israel, 

an OWCP district medical adviser (DMA) and Board-certified otolaryngologist, to determine the 

extent of appellant’s hearing loss and permanent impairment due to appellant’s employmentrelated noise exposure. On December 1, 2020 Dr. Israel reviewed Dr. Loeffler’s report and 

applied the audiometric data to OWCP’s standard for evaluating hearing loss under the sixth 

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

2

(A.M.A., Guides) and determined that appellant sustained a right monaural loss of zero percent, a 

left monaural loss of zero percent, and a binaural hearing loss of zero percent. He noted that a 

tinnitus award of five percent could not be given as there was no binaural hearing loss. Dr. Israel 

averaged appellant’s right ear hearing levels of 15, 15, 15, and 20 dBs at 500, 1,000, 2,000, and 

3,000 Hz, respectively, by adding the hearing loss at those 4 levels then dividing the sum by 4, 

which equaled 16.25. After subtracting the 25 dB fence, he multiplied the remaining 0 balance by 

1.5 to calculate 0 percent right ear monaural hearing loss. Dr. Israel then averaged appellant’s left 

ear hearing levels of 20, 15, 15, and 30 dBs at 500, 1,000, 2,000, and 3,000 Hz, respectively, by 

adding the hearingloss at those four levels then dividing the sum by four, which equaled 20. After 

subtracting the 25 dB fence, he multiplied the remaining 0 balance by 1.5 to calculate 0 percent 

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

left ear monaural hearing loss. Dr. Israel then calculated zero percent binaural hearing loss by 

multiplying the right ear loss of zero percent by five, adding the zero percent left ear loss, and 

dividing this sum by six. He recommended yearly audiograms, use of noise protection, and 

authorization for hearing aids for both ears for tinnitus masking and, for the left ear, for hearing 

loss. Dr. Israel determined that appellant had reached maximum medical improvement (MMI) on 

August 7, 2020 the date of audiometric examination with Dr. Loeffler.

By decision dated December 29, 2020, OWCP denied appellant’s schedule award claim, 

finding that the evidence of record was insufficient to establish that his accepted hearing loss 

condition was severe enough to be considered ratable. It noted that he was, however, entitled to 

medical benefits, including hearing aids, if recommended by his physician. 

In a memorandum dated March 11, 2021, Dr. Israel notified OWCP that he had provided 

a DMA report dated December 1, 2020 relative to appellant’s schedule award request for hearing 

loss. He stated that, at that time, a zero percent binaural hearing impairment score was calculated 

and a four percent tinnitus award was disallowed due to the zero percent binaural hearing 

impairment. Dr. Israel noted that he had received a request from OWCP identical to the one he 

received in December 2020 and that it was unclear why OWCP wanted the report completed again, 

as no data had changed according to the case record. He resubmitted his December 1, 2020 DMA 

report to OWCP.

By decision dated April 19, 2021, OWCP denied appellant’s schedule award claim, finding 

that the evidence of record was insufficient to establish that his accepted hearing loss condition 

was severe enough to be considered ratable.

LEGAL PRECEDENT

The schedule award provisions of FECA3 and its implementing regulations4 set 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 sin gle 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 

concurred in such adoption.6

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 

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Supra note 2.

6 H.M., Docket No. 21-0378 (issued August 23, 2021); V.M., Docket No. 18-1800 (issued April23, 2019); J.W., 

Docket No. 17-1339 (issued August21, 2018).
4

frequency are averaged.7 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.8 The remaining amount is multiplied by a factor of 1.5 to arrive at the 

percentage of monaural hearing loss.9 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.10 The Board has concurred in OWCP’s adoption of this standard for evaluating 

hearing loss.11

ANALYSIS

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

loss for schedule award purposes.

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

evaluate appellant’s hearing loss. In his July 28, 2020 report, Dr. Loeffler reviewed audiometric 

testing at the frequencies of 500, 1,000, 2,000, and 3,000 Hz, revealing losses at 15, 15, 15, and 

20 dBs for the right ear, respectively; and 20, 15, 15, and 30 dBs for the left ear, respectively. He

diagnosed tinnitus and left-sided sensorineural hearing loss, opining that appellant’s sensorineural 

hearing loss and tinnitus were due to noise exposure encountered in his federal employment. By 

decision dated October 26, 2020, OWCP accepted appellant’s claim for bilateral sensorineural 

hearing loss and bilateral tinnitus and forwarded appellant’s case to a DMA to assess his 

percentage of permanent employment-related hearing loss.

On December 1, 2020 Dr. Israel reviewed Dr. Loeffler’s examination report and 

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

zero percent, and a binaural hearing loss of zero percent. He noted that a tinnitus award of five 

percent could not be given as there was no binaural hearing impairment loss. Dr. Israel averaged 

appellant’s right ear hearing levels of 15, 15, 15, and 20 dBs at 500, 1,000, 2,000, and 3,000 Hz, 

respectively, by adding the hearing loss at those 4 levels then dividing the sum by 4, which equaled 

16.25. After subtracting the 25 dB fence, he multiplied the remaining 0 balance by 1.5 to calculate 

zero percent right ear monaural hearing loss. Dr. Israel then averaged appellant’s left ear hearing 

levels of 20, 15, 15, and 30 dBs at 500, 1,000, 2,000, and 3,000 Hz, respectively, by adding the 

hearing loss at those four levels then dividing the sum by four, which equaled 20. After subtracting 

the 25 dB fence, he multiplied the remaining 0 balance by 1.5 to calculate 0 percent left ear 

monaural hearing loss. Dr. Israel then calculated zero percent binaural hearing loss by multiplying 

7 A.M.A., Guides 250.

8

Id.

9

Id.

10 Id.

11 V.M., supra note 6.
5

the right ear loss of zero percent by five, adding the zero percent left ear loss, and dividing this 

sum by six.

The Board finds that the DMA properly concluded that appellant did not have ratable 

permanent impairment of his hearing warranting a schedule award. Although appellant has 

accepted employment-related hearing loss, it is insufficiently severe to be ratable for schedule 

award purposes.12

The Board has held that, in the absence of ratable hearing loss, a schedule award for tinnitus 

is not allowable pursuant to the A.M.A., Guides.

13

 Accordingly, as appellant does not have ratable 

hearing loss, the Board finds that he is not entitled to a schedule award for tinnitus.

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 or increased impairment.

CONCLUSION

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

loss, for schedule award purposes.

ORDER

IT IS HEREBY ORDERED THAT the April 19, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 14, 2022

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

12 See W.T., Docket No. 17-1723 (issued March 20, 2018); E.D., Docket No. 11-0174 (issued July 26, 2011).

13 Id.