United States Department of Labor

Employees’ Compensation Appeals Board

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J.G., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION,

Marysville, MI, Employer

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Docket No. 21-0015

Issued: April 27, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 6, 2020 appellant filed a timely appeal from a July 21, 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 a ratable hearing 

loss warranting a schedule award.

FACTUAL HISTORY

On July 6, 2017 appellant, then a 48-year-old supervisor border patrol agent, filed a 

traumatic injury claim (Form CA-1) alleging that on July 4, 2017 he developed ringing in his right 

1

5 U.S.C. § 8101 et seq.
2

ear when a 55-gallon drum he was moving exploded while in the performance of duty. He did not 

stop work. On December 18, 201 OWCP accepted this claim for tinnitus, right ear.

On April 19, 2018 appellant filed a claim for compensation (Form CA-7) for a schedule 

award and submitted a series of reports dated February 2 through March 19, 2018 from 

Margaret E. Kuczynski, a nurse practitioner.

In a June 11, 2018 development letter, OWCP requested that appellant submit a detailed 

medical report from a physician addressing his permanent impairment due to his accepted 

employment-related condition in accordance with the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides).2

Thereafter, OWCP received a July 2, 2018 report from Ms. Kuczynski.

By decision dated August 16, 2018, OWCP denied appellant’s schedule award claim,

finding that he failed to submit any medical evidence of permanent impairment. 

On September 6, 2018 appellant requested a review of the written record before a 

representative of OWCP’s Branch of Hearings and Review.

In a September 5, 2018 letter, appellant asserted that Dr. Neal Obermyer, a Board-certified 

otolaryngologist, had reviewed Ms. Kuczynski’s reports and concurred with her conclusions.

By decision dated November 9, 2018, OWCP’s hearing representative set aside the 

August 16, 2018 decision and remanded the case for further development of the medical evidence,

including review by a district medical adviser (DMA) and a de novo decision.

On November 20, 2018 OWCP referred appellant’s record along with a statement of 

accepted facts (SOAF) to Dr. Jeffrey M. Israel, a Board-certified otolaryngologist serving as the 

DMA. Dr. Israel responded on November 21, 2018notingthat there was no second opinion report 

or audiogram in the record.

On December 6, 2018 OWCP requested an audiogram from appellant’s attending 

physician. 

On March 19, 2018 appellant underwent an audiogram.

By decision dated January 16, 2019, OWCP denied appellant’s schedule award claim.

In a letter dated January 31, 2019, appellant requested that the acceptance of his claim be 

expanded to include bilateral tinnitus and hearing loss. In a February 25, 2019 note, Dr. Obermyer 

diagnosed noise-induced bilateral high-frequency sensorineural hearing loss with tinnitus as 

related to appellant’s accepted employment injury. He reviewed a February 25, 2019 audiogram

and found that appellant had reached maximum medical improvement (MMI).

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

Dr. Obermyer completed a report on July 26, 2019 and noted appellant’s acoustic trauma 

in 2017 and diagnosed bilateral sensorineural hearing loss and tinnitus, worse on the right. On 

November 25, 2019 he added a note to Ms. Kuczynski’s July 2, 2018 note, indicating that 

appellant had experienced bilateral tinnitus since the accepted July 4, 2017 employment injury

described by Ms. Kuczynski.

On January 20, 2020 appellant requested reconsideration of his schedule award decision.

On January 30, 2020 OWCP expanded the acceptance of his claim to include left ear tinnitus.

On February 21, 2020 OWCP referred appellant, a SOAF, and an outline for otologic 

evaluation for a second opinion examination with Dr. Warren Brandes, an osteopath and Boardcertified otolaryngologist.

In a March 19, 2020 report, Dr. Brandes described appellant’s history of injury on 

July 4, 2017. He diagnosed low-frequency conductive hearing loss, bilaterally, and highfrequency sensorineural hearing loss, bilaterally. Dr. Brandes found that appellant had sustained 

significant acoustic trauma on July 4, 2017 resulting in bilateral hearing loss and tinnitus. He 

reviewed an audiogram conducted by an audiologist on March 12, 2020 in which he found 

demonstrated losses of 30, 25, 10, and 15 decibels (dBs) on the right and 40, 25, 15, and 15 dBs 

on the left at 500, 1,000, 2,000, and 3,000 Hertz (Hz), respectively. Utilizing the sixth edition of 

A.M.A., Guides, Dr. Brandes calculated appellant’s total monaural hearing loss for appellant’s

right ear by adding his right ear dB losses to a total of 80 and then dividing by 4 to obtain the 

average hearing loss of 20 dBs. This average loss was then reduced by 25 dBs to equal -5, which 

was multiplied by the established factor of 1.5 to compute a -7.5 percent monaural hearing loss in 

the right ear, resulting in 0 percent permanent impairment. Dr. Brandes calculated appellant’s total 

monaural hearing loss for appellant’s left ear by adding his left ear dB losses to a total of 95 and 

then dividing by 4 to obtain the average hearing loss of 23.75 dBs. This average loss was then

reduced by 25 dBs to equal -1.25, which was multiplied by the established factor of 1.5 to compute 

a -1.875 percent monaural hearing loss in the left ear, also resulting in 0 percent permanent 

impairment. Dr. Brandes further found that appellant had three percent permanent impairment due

to moderate tinnitus.

On July 9, 2020 OWCP referred Dr. Brandes’ report and a SOAF to the DMA, Dr. Israel, 

for review. On July 18, 2020 the DMA indicated that he reviewed appellant’s SOAF and medical 

records, including Dr. Brandes’ March 19, 2020 report. He determined that appellant had reached 

MMI on March 12, 2020 because it was the date of the audiogram which was used by Dr. Brandes 

to calculate appellant’s hearing loss and was his most recent audiogram. Dr. Israel reviewed the 

March 12, 2020 audiogram and found that it demonstrated zero percent monaural hearing loss in 

the right and left ear. He agreed with Dr. Brandes’ calculations of appellant’s monaural hearing 

loss in both ears. Dr. Israel further found that appellant was not entitled to a schedule award for 

tinnitus as there was no ratable hearing loss.

By decisions dated July 21, 2020, OWCP modified its January 16, 2019 decision to accept 

that appellant had sustained bilateral loss of hearing due to his accepted employment injury. 

However, it further found that he had not established a ratable hearing loss for schedule award 

purposes and that, as he was not entitled to a schedule award for loss of hearing, he was not entitled 

to a schedule award for tinnitus.
4

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. However, FECA does not 

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.5 As of May 1, 2009, the sixth edition of the 

A.M.A., Guides is used to calculate schedule awards.6

A claimant seeking compensation under FECA has the burden of proof to establish the 

essential elements of his or her claim.7 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.8 The medical evidence must include a detailed description 

of the permanent impairment.9

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

A.M.A., Guides.10 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each 

frequency are 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.11

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

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

2.808.5a (March 2017); id., at Chapter 3.700.2 and Exhibit 1 (January 2010).

7 B.B., Docket No. 19-1491 (issued February 3, 2020); JohnW. Montoya, 54 ECAB 306 (2003).

8 R.R., Docket No. 19-0750 (issued November 15, 2019); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. 

Meehan, 53 ECAB 229 (2001).

9 B.B., supra note 7; Vanessa Young, 55 ECAB 575 (2004).

10 A.M.A., Guides, 250.

11 J.E., Docket No. 19-1325 (issued December 13, 2019); E.C., Docket No. 19-1007 (issued November 8, 2019).
5

ANALYSIS

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

loss warranting a schedule award.

OWCP properly referred appellant to Dr. Brandes for a second opinion evaluation. In his 

March 19, 2020 report, Dr. Brandes noted that audiometric studies demonstrated binaural 

sensorineural hearing loss with tinnitus due to the accepted July 4, 2017 employment injury. He

concluded that appellant had zero percent ratable hearing loss and three percent permanent 

impairment due to moderate tinnitus. 

OWCP referred the case, along with a copy of Dr. Brandes’ March 19, 2020 report, to a 

DMA, Dr. Israel, to assess the percentage of permanent impairment. In his July 18, 2020 report, 

the DMA reviewed Dr. Brandes’ report and audiometric findings, properly applied OWCP’s 

standardized procedures, and concurred with Dr. Brandes in finding that appellant had no 

monaural or binaural hearing loss. He totaled the dB losses to equal 95 on the left and 80 on the 

right. These values, when divided by four, resulted in average hearing loss of 23.75 on the left 

and 20 on the right, which when reduced by the 25 dBs fence, resulted in zero percent loss.

The Board finds that, as the March 12, 2020 audiogram did not demonstrate that appellant’s 

hearing loss was ratable, he is not entitled to a schedule award for his accepted hearing loss 

condition. Although appellant has accepted employment-related hearing loss, it is insufficiently 

severe to be ratable for schedule award purposes.12 

While Dr. Brandes found that appellant had three percent permanent impairment due to 

tinnitus, Dr. Israel found, and 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 permanent impairment.

CONCLUSION

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

loss warranting a schedule award.

12 J.R., Docket No. 21-0909 (issued January 14, 2022); W.T., Docket No. 17-1723 (issued March20, 2018); E.D., 

Docket No. 11-0174 (issued July 26, 2011).

13 C.D., Docket No. 20-0790 (issued November 13, 2020); W.T.,id.; E.D.,id.
6

ORDER

IT IS HEREBY ORDERED THAT the July 21, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 27, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board