United States Department of Labor

Employees’ Compensation Appeals Board

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J.S., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF INVESTIGATION, Fort Dix, NJ, 

Employer

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Docket No. 22-0274

Issued: September 13, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 13, 2021 appellant filed a timely appeal from September 30 and

November 3, 2021 merit decisions 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.

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish ratable 

hearing loss warranting a schedule award; and (2) whether OWCP abused its discretion by denying 

authorization for binaural hearing aids.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On April 11, 2021 appellant, then a 51-year-old special agent,filed an occupational disease 

claim (Form CA-2) alleging that he developed binaural hearing loss due to factors of his federal 

employment, including exposure to hazardous noise from using firearms on a daily basis. He noted 

that he first became aware of his condition and realized its relation to factors of his federal 

employment on March 23, 2021. Appellant did not stop work.

In a statement received by OWCP on April 11, 2021, appellant explained that he had been 

exposed to loud noise from 2005 onward, during weekly firearms training, which included the use 

of noise flash diversionary devices (“flash bangs”).

Appellant submitted a February 7, 2018 industrial hygiene report advising him that an 

audiogram demonstrated hearing “not within limits” bilaterally, left worse than right. A March 23, 

2021 letter from the employing establishment’s hearing conservation program noted that one or 

more of appellant’s audiograms demonstrated some hearing loss, with a standard threshold shift 

in one or both ears.2

The employing establishment provided industrial hygiene surveys of its firing ranges,

which established that, during firearm qualifications, participants were exposed to noise levels 

from 80.9 to 151.3 decibels (dBs).

In an April 14, 2021 letter, the employing establishment confirmed that appellant’s position 

required the use of firearms.

In a development letter dated April 16, 2021, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the evidence necessary to establish his claim and provided a 

questionnaire. In a second development letter dated April 16, 2021, OWCP requested comments 

from a knowledgeable supervisor regarding appellant’s occupational noise exposure. It afforded 

both parties 30 days to submit the requested evidence.

Appellant provided a May 5, 2021 response to OWCP’s development questionnaire. Prior 

to his federal employment, he served as a police officer from January 1994 through July 2002, 

with exposure to hazardous noise during semiannual firearms qualification and training. Appellant

alleged exposure to hazardous noise at the employing establishment from February 2003 onward 

as an enforcement squad member and firearms instructor. 3 He also participated in recreational 

firearms shooting one to three times per year, during which he used multiple forms of hearing 

protection.

2 OWCP received April6, 2015, February 6, 2018, and November 23, 2020 audiograms demonstrating nonratable

hearing loss.

3 Appellant provided a list of the dates of firearms qualification and training from October 17, 2012 through 

April 28, 2021. 
3

In a May 12, 2021 letter, L.R., a supervisory special agent, confirmed that appellant’s 

statements were accurate.

4

On July 30, 2021 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and the medical record to Dr. Walter G. Zemel, a Board-certified otolaryngologist serving 

as second opinion physician, regarding the nature and extent of his hearing loss, and whether there 

was any causal relationship between his diagnosed hearing loss and his accepted employment

exposure.

In an August 19, 2021 report, Dr. Zemelreviewed the SOAF, history of injury, and medical 

evidence of record. Audiometric testing obtained on August 17, 2021 at the frequencies of 500, 

1,000, 2,000, and 3,000 Hertz (Hz) revealed losses at 0, 5, 20, and 20 dBs for the right ear, 

respectively; and 0, 10, 20, and 25 dBs for the left ear, respectively. Dr. Zemel administered a 

tinnitus handicap inventory with a score of 2. He diagnosed bilateral high frequency sensorineural 

hearing loss and tinnitus. Dr. Zemel opined that appellant’s sensorineural hearing loss and tinnitus 

were due to noise exposure encountered in his federal employment. He noted that hearing aids 

were not recommended.

On September 23, 2021 OWCP referred the medical record and SOAF to Dr. Jeffrey M. 

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 

employment- related noise exposure.

By decision dated September 30, 2021, OWCP accepted appellant’s claim for binaural

sensorineural hearing loss. However, it denied authorization of binaural hearing aids as the 

medical evidence established that he did not require them.

On September 30, 2021 Dr. Israel reviewedDr. Zemel’sreport 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,

5

(A.M.A., Guides) and 

determined that appellant sustained 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 ratable binaural hearing loss. Dr. Israel averaged

appellant’s right ear hearing levels of 0, 5, 20 and 20 dBs at 500, 1,000, 2,000, and 3,000 Hz, 

respectively, by adding the hearing loss at those fourlevels then dividing the sum of 45 by 4, which 

equaled 11.25. After subtracting the 25 dB fence, he multiplied the remaining 0 balance by 1.5

for a result of zero percent right monaural loss. For the left ear, Dr. Israel averaged hearing levels 

of 0, 10, 20, and 25 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 of 55 by 4 for a result of 13.75. After subtracting 

the 25 dB fence, he multiplied the remaining 0 balance by 1.5 for a result of zero percent left 

monaural hearing loss. Dr. Israelthen calculated zero percent binaural hearing loss by multiplying 

4 The employing establishment provided a summary of industrial hygiene audiograms obtained from May 6, 2002 

through November 23, 2020,which demonstrated nonratable bilateral hearing loss.

5 A.M.A., Guides(6th ed. 2009).
4

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 hearing protection, and authorization for 

hearing aids for both ears if appellant so desired as he was a borderline candidate. Dr. Israel noted 

that there was no applicable award for tinnitus as there was zero percent binaural hearing 

impairment. He determined that appellant had reached maximum medical improvement (MMI) 

on August 17, 2021 the date of audiometric examination with Dr. Zemel.

On October 10, 2021 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

By decision dated November 3, 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 -- ISSUE 1

The schedule award provisions of FECA6 and its implementing regulations7 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 single set of 

tables so that there may be uniform standards applicable to all claimants. The sixth edition of the 

A.M.A., Guides8 has been adopted by OWCP for evaluating schedule losses and the Board has 

concurred in such adoption.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 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 

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Supra note 5.

9

J.R., Docket No. 21-0909 (issued January14, 2022); H.M., Docket No. 21-0378 (issued August23, 2021); V.M., 

Docket No. 18-1800 (issued April23, 2019); J.W., Docket No. 17-1339 (issued August 21, 2018).

10 A.M.A., Guides 250.

11 Id.

12 Id.
5

binaural hearing loss.13 The Board has concurred in OWCP’s adoption of this standard for 

evaluating hearing loss.14

ANALYSIS -- ISSUE 1

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. Zemel for a second opinion examination to 

evaluate appellant’s hearing loss. In his August 19, 2021 report, Dr. Zemel reviewed audiometric 

testing at the frequencies of 500, 1,000, 2,000, and 3,000 Hz, revealing losses at zero, 5, 20, and 

20 dBs for the right ear, respectively; and zero, 10, 20, and 25 dBs for the left ear, respectively. 

He diagnosed mild-to-moderate high-frequency bilateral sensorineural hearing loss with grade 1 

bilateral tinnitus. Dr. Zemel opined that appellant’s sensorineural hearing loss and tinnitus were 

due to noise exposure encountered in his federal employment. By decision dated September 30,

2021, OWCP accepted appellant’s claim for binaural sensorineural hearing loss and forwarded 

appellant’s case to a DMA to assess his percentage of permanent employment-related hearing loss.

On September 30, 2021 Dr. Israel reviewed Dr. Zemel’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 ratable binaural hearing loss. Dr. Israel averaged 

appellant’s right ear hearing levels of 0, 5, 20, 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 of 45 by 4, which 

equaled 11.25. 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 0, 10, 20, and 25 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 of 55 by four, which equaled 13.75. 

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

percent 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.

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

hearing loss warranting a schedule award. Although appellant has accepted employment-related 

hearing loss, it is insufficiently severe to be ratable for schedule award purposes. 15 The Board has 

held that, in the absence of ratable hearing loss, a schedule award for tinnitus is not allowable 

13 Id.

14 V.M., supra note 9.

15 J.R., supra note 9; see W.T., Docket No. 17-1723 (issued March 20, 2018); E.D., Docket No. 11-0174 (issued 

July 26, 2011).
6

pursuant to the A.M.A., Guides.

16

 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.

LEGAL PRECEDENT -- ISSUE 2

Section 8103(a) of FECA provides that the United States shall furnish to an employee who 

is injured while in the performance of duty the services, appliances, and supplies prescribed or 

recommended by a qualified physician, which the Secretary of Labor considers likely to cure, give 

relief, reduces the degree, or the period of any disability, or aid in lessening the amount of any 

monthly compensation.17 OWCP must therefore exercise discretion in determining whether the 

particular service, appliance, or supply is likely to affect the purposes specified in FECA. 18

Following medical evaluation of a claim, if the hearing loss is determined to be nonratable 

for schedule award purposes, other benefits such as hearing aids may still be payable if any 

employment-related hearing loss exists.19

ANALYSIS -- ISSUE 2

The Board finds that OWCP abused its discretion by denying appellant’s request for

binaural hearing aids.

20

Dr. Israel’s September 23, 2021 report recommended binaural hearing aids. The Board has 

held and OWCP’s procedures provide that, following medical evaluation of a claim, if the hearing 

loss is determined to be nonratable for schedule award purposes, other benefits such as hearing 

aids may still be provided.

21

Dr. Israel, as the DMA, recommended bilateral amplification based in part on appellant’s 

occupational noise exposure. The Board therefore finds that OWCP abused its discretion in 

16 Id.

17 See B.C., Docket No. 20-0566 (issued March 8, 2022); R.P., Docket No. 17-0428 (issued April19, 2018); J.W., 

Docket No. 16-0231 (issued March 10, 2016); Joshua A. Holmes, 42 ECAB 231, 236 (1990).

18 5 U.S.C. § 8103.

19 R.B., Docket No. 19-1466 (issued April9, 2020); J.M., Docket No. 16-0526 (issued May 13, 2016);see F.D., 

Docket No. 10-1175 (issued January 4, 2011).

20 See J.W., supra note 17;R.N., Docket No. 13-284 (issued July 3, 2013).

21 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3d(2) 

(October 1995); J.W.,supranote 17;Raymond VanNett, 44 ECAB 480 (1993).
7

denying appellant’s request for binaural hearing aids. Upon return of the case record, OWCP shall 

authorize binaural hearing aids.

CONCLUSION

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

loss warranting a schedule award. The Board further finds that OWCP abused its discretion by 

denying binaural hearing aids.

ORDER

IT IS HEREBY ORDERED THAT the September 30, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed, in part with regard to the denial of hearing aids; the 

case is remanded for further proceedings consistent with this decision of the Board. The 

November 3, 2021 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: September 13, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board