United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.O., Appellant

and

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA, Employer

__________________________________________

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Docket No. 18-0659

Issued: August 8, 2019

Appearances: Case Submitted on the Record

David G. Jennings, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On February 6, 2018 appellant, through counsel, filed a timely appeal from a January 3, 

2018 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.3

 

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.

3 The Board notes that, following the January 3, 2018 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 more than 43 percent 

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

FACTUAL HISTORY

On December 8, 2015 appellant, then a 59-year-old retired tool room mechanic, filed an 

occupational disease claim (Form CA-2) for bilateral hearing loss, which he attributed to noise at 

work.4 He noted that he first became aware of his condition and realized that it resulted from his 

federal employment on July 31, 2002.

OWCP received the results of an August 13, 2015 audiogram. 

In a March 8, 2016 statement, appellant indicated that from December 1979 to 1980 and 

December 1981 to March 2008 he worked as an insulator, and from March 2008 to July 2015 he 

worked as a toolroom mechanic at the employing establishment. He described the type of noise 

he was exposed to, which he believed contributed to his hearing loss. Appellant noted that he was 

last exposed to hazardous noise on July 3, 2015.

OWCP referred appellant, together with a statement of accepted facts (SOAF) and the 

relevant medical evidence of record, to Dr. Wayne Shaia, a Board-certified otolaryngologist and 

second opinion examiner, for an otologic examination and audiological testing. In a June 3, 2016 

report, Dr. Shaia diagnosed noise-induced hearing loss. He indicated that appellant had 

sensorineural hearing loss in excess of what would be normally predicted on the basis of 

presbycusis. Dr. Shaia opined that appellant’s hearing was “due to the noise exposure from his 

federal civilian employment.” He explained that an August 2015 audiogram and an audiogram 

conducted that day both supported the pattern of noise-induced hearing loss. Dr. Shaia noted that 

appellant was already wearing bilateral hearing aids and had reached maximum medical 

improvement (MMI).

Maureen Nelson, an audiologist, performed an audiogram on the date of Dr. Shaia’s 

examination. She diagnosed mild-to-severe sensorineural hearing loss bilaterally and also 

commented that appellant had tinnitus in each ear. Ms. Nelson reported testing at the frequency 

levels of 500, 1,000, 2,000, and 3,000 hertz (Hz) which revealed the following: right ear 35, 40, 

60, and 80 decibels (dBs), respectively; left ear 45, 35, 60, and 80 dBs, respectively. Utilizing the 

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

Impairment (A.M.A., Guides),

5

she calculated that appellant sustained 48.12 percent monaural 

hearing impairment in the right ear (43.12 percent + 5 percent for tinnitus) and 50 percent monaural 

hearing impairment in the left ear (45 percent + 5 percent for tinnitus). Ms. Nelson calculated a 

binaural hearing impairment of 48.4 percent. This report was co-signed by Dr. Shaia.

On June 27, 2016 OWCP accepted appellant’s claim for bilateral sensorineural hearing 

loss.

 

4 Appellant retired from federal employment on July 3, 2015. 

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

On February 9, 2017 appellant filed a claim for a schedule award (Form CA-7).

In a March 2, 2017 report, Dr. Jeffrey M. Israel, a Board-certified otolaryngologist and

OWCP district medical adviser (DMA) reviewed the SOAF and the medical record, including

Dr. Shaia’s June 3, 2016 second opinion report. He agreed with the finding that appellant had 

43.12 percent monaural hearing loss in the right ear and 45 percent monaural hearing loss in the 

left ear. Dr. Israel also noted the additional five percent impairment for tinnitus. He related, 

however, that he was unable to comment on a tinnitus impairment because there was no discussion 

of tinnitus in the record, no discussion of how tinnitus impacted activities of daily living (ADL), 

and no Tinnitus Handicap Inventory to help determine a tinnitus award. Utilizing the sixth edition 

of the A.M.A., Guides, Dr. Israel determined that appellant had 43.4 percent binaural hearing loss. 

He reported that appellant had reached MMI on June 3, 2016, the date of the most recent audiogram 

examination. 

In a January 3, 2018 decision, OWCP granted appellant a schedule award for 43 percent 

binaural hearing loss. The period of the award ran for 86 weeks from June 3, 2016 to 

January 25, 2018.

LEGAL PRECEDENT

The schedule award provisions of FECA6and its implementing regulations7set 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 of 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 A.M.A., Guides has 

been adopted by OWCP as a standard for evaluation of schedule losses and the Board has 

concurred in such adoption.8 For schedule awards after May 1, 2009, the impairment is evaluated 

under the sixth edition of the A.M.A., Guides, published in 2009.9

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

essential elements of his or her claim.10 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.11 A claimant may seek an increased schedule award 

if the evidence establishes that he or she sustained an increased impairment causally related to an 

 

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404.

8

Id. at § 10.404; see also Jacqueline S. Harris, 54 ECAB 139 (2002). 

9 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).

10 John W. Montoya, 54 ECAB 306 (2003).

11 Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).
4

employment injury.12 The medical evidence must include a detailed description of the permanent 

impairment.13

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

A.M.A., Guides.

14

 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 points out, losses below 25 dBs result in no impairment in the ability to hear 

everyday speech under everyday conditions.15 The remaining amount is multiplied by a factor of 

1.5 to arrive at the percentage of monaural hearing loss.16 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 the 

binaural hearing loss.17 The Board has concurred in OWCP’s adoption of this standard for 

evaluating hearing loss.18 

“If tinnitus interferes with activities of daily living, including sleep, reading (and other 

tasks requiring concentration), enjoyment of quiet recreation, and emotional well-being, up to five 

percent may be added to a measurable binaural hearing impairment.19”

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to a DMA for an opinion concerning the nature and percentage of permanent 

impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the 

percentage of impairment specified.20

ANALYSIS

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

 

12 See Rose V. Ford, 55 ECAB 449 (2004).

13 See Vanessa Young, 55 ECAB 575 (2004).

14 R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

15 See A.M.A., Guides 250 (6th ed. 2009).

16 Id. 

17 Id. 

18 E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001). 

19 A.M.A., Guides 249; see also R.H., Docket No. 10-2139 (issued July 13, 2011).

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

2.808.6f.
5

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.21” In this case, while

Dr. Shaia’s June 3, 2016 rating included five percent impairment for tinnitus, the report itself did 

not provide specific justification for the additional rating, as noted by the DMA.22

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

OWCP is not a disinterested arbiter.23 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.24 Once OWCP undertook development of the evidence by referring 

appellant to Dr. Shaia, a second opinion physician, it had a duty to secure an appropriate report 

addressing the relevant issues.25 Because the basis for the additional rating for tinnitus absent, the 

case will be remanded to OWCP to request a supplemental report from Dr. Shaia to address the 

basis of his tinnitus diagnosis. Following this and any necessary further development, OWCP 

shall issue a de novo decision relative to the extent and degree of appellant’s hearing impairment.

CONCLUSION

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

 

21 Supra note 18.

22 D.M., Docket No. 17-1832 (issued March 14, 2018); D.F., Docket No. 15-0246 (issued September 16, 2016).

23 See Vanessa Young, 56 ECAB 575 (2004).

24 Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999); William J. Cantrell, 

34 ECAB 1233, 1237 (1983).

25 Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi, 56 ECAB 234 (2004).
6

ORDER

IT IS HEREBY ORDERED THAT the January 3, 2018 decision of the Office of 

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

consistent with this decision of the Board.

Issued: August 8, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board