United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.A., Appellant

and

DEPARTMENT OF THE ARMY, TACOM 

FLEET MANAGEMENT EXPANSION, 

Fort Leonard Wood, MO, Employer

__________________________________________

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Docket No. 20-1590

Issued: May 12, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 4, 2020 appellant, through counsel, filed a timely appeal from a June 30, 

2020 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.

 

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.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish binaural hearing 

loss causally related to the accepted factors of her federal employment.

FACTUAL HISTORY

On November 8, 2017 appellant, then a 58-year-old tool and parts attendant, filed an 

occupational disease claim (Form CA-2) alleging that she developed hearing loss due to factors of 

her federal employment, including working in a mechanic wheel shop with loud noises from trucks 

and air tools. She noted that she first became aware of her condition and its relation to her federal 

employment on November 20, 2012. Appellant did not stop work.

In a development letter dated November 15, 2017, OWCP informed appellant that the 

evidence of record was insufficient to establish her claim. It advised her of the type of factual and 

medical evidence needed and provided a questionnaire for her completion. In a separate 

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

additional information, including comments from a knowledgeable supervisor and an explanation 

of appellant’s work activities and exposure to noise. It also requested all medical examinations 

pertaining to hearing or ear problems, including pre-employment examination and all audiograms. 

OWCP afforded both parties 30 days to submit the necessary evidence.

OWCP subsequently received base system civilian evaluation reports, position 

descriptions, and notifications of personnel action Standard Form (SF)-50 that noted appellant’s 

employment history and job duties as a custodial worker from May 26, 1998 through July 31, 

1999, a fabric worker from August 1, 1999 through April 5, 2003, a custodial worker from April 6 

through June 28, 2003, a sewing machine operator from June 29, 2003 through July 10, 2005, a 

tool and parts attendant from July 11 through December 10, 2005, an optical instrument worker 

from December 11, 2005 through September 24, 2011, and a tool and parts attendant from 

September 25, 2011 through the present.

Appellant submitted her audiogram findings and hearing conservation data, dated March 2, 

2012 through November 2, 2017. Audiograms, dated November 5, 2012, October 21, 2014, and 

October 20 and November 1, 2017, revealed changes in appellant’s hearing when compared to her 

baseline audiogram such that it constituted reportable sensorineural hearing loss. 

On December 5, 2017 appellant responded to OWCP’s development questionnaire. She 

noted that she was exposed to noise from heavy military vehicles for 9 hours per day, 40 hours per 

week while working as a tool and parts attendant. Appellant indicated that she used triple-flange,

rubber hearing protection. She noted that she was last exposed to hazardous noise in 2014 and 

first became aware of her hearing loss in 2012. Appellant indicated that she did not engage in any 

hobbies that involved exposure to loud noise. She recounted that she requested her medical hearing 

examinations from the employing establishment, but could only get records from 2012 through

2017. Appellant indicated that she had been moved to a different work site and no longer had 

significant exposure to noise.
3

In a December 5, 2017 email, J.S., appellant’s supervisor, responded to OWCP’s 

development questionnaire. He noted that appellant received an annual hearing test on 

November 7, 2012, which showed reportable hearing loss. J.S. indicated that appellant did not 

want to file an occupational disease claim at that time. He reported that appellant was exposed to 

noise from shop tools and military vehicles weighing up to 5 tons for 6.5 to 7.5 hours per day, 4 

to 5 days per week. J.S. noted that appellant was provided with triple-flange ear protection. He

indicated that appellant’s audiograms and medical examinations pertaining to hearing or ear 

problems would have to be provided by the employing establishment’s hearing program manager’s 

office. J.S. stated that appellant was currently working as a tool and parts attendant for the 

employing establishment. 

In a December 15, 2017 memorandum, the employing establishment noted that it 

conducted a noise test in the tool supply room where appellant had worked. It indicated that air 

ratchets and impact air wrenches had been shown to have noise levels over 90 A-weighted decibels 

(dBs). The employing establishment explained that if employees in the tool supply room entered 

the maintenance area where these tools were used, hearing protection was required. It reported 

that noise levels in the tool supply room were well below the allowable standard and therefore no 

hearing protection was required. The employing establishment provided a table showing noise 

levels in the tool supply room at different frequencies with work ongoing and an air compressor 

running in an adjacent room. 

On September 5, 2018 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), for a second opinion examination with Dr. Richard L. Barnes, an otolaryngologist. In a 

September 25, 2018 report, Dr. Barnes recounted appellant’s medical history and history of 

employment-related noise exposure. He indicated that in reviewing appellant’s medical record, 

there were no previous audiograms for comparison. Dr. Barnes examined appellant and performed 

an audiological evaluation. He reviewed appellant’s audiogram performed that day, which 

demonstrated at 500, 1,000, 2,000, and 3,000 Hertz (Hz) losses of 40, 40, 55, and 80 dBs on the 

right, respectively and 40, 40, 70, and 80 dBs on the left, respectively. Dr. Barnes diagnosed 

sensorineural hearing loss, but opined that he could not determine if it was related to appellant’s 

federal employment. He noted that appellant’s hearing loss appeared to be functional and that the 

September 25, 2018 audiometric testing was not valid because there were signs of malingering. 

Dr. Barnes further explained that previous audiograms were needed to determine if appellant’s 

hearing loss was caused by her federal employment. Utilizing the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3 he 

indicated that appellant had two percent impairment for tinnitus.

By decision dated November 16, 2018, OWCP denied appellant’s claim, finding that she 

had not submitted medical evidence containing a medical diagnosis in connection with the 

accepted factors of her federal employment. It concluded, therefore, that the requirements had not 

been met to establish an injury as defined by FECA.

 

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

On December 17, 2018 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review. On February 1, 2019 she requested a review of the 

written record in lieu of an oral hearing.

By decision dated April 2, 2019, an OWCP hearing representative, following a preliminary 

review, vacated the November 16, 2018 decision and remanded the case for a new second opinion 

examination with an otolaryngologist to determine if appellant had employment-related hearing 

loss.

On June 25, 2019 OWCP referred appellant, along with an updated SOAF, for a second 

opinion examination with Dr. Jay A. Dunfield, a Board-certified otolaryngologist. In a July 17, 

2019 report, Dr. Dunfield noted that appellant’s hearing tests appeared to be stable going back to 

2014. He indicated that appellant stated that she had audiograms performed from 1999 through

the present, but he did not receive any audiology records prior to 2012. Dr. Dunfield examined 

appellant and performed an audiological evaluation. He reviewed appellant’s audiogram 

performed that day, which demonstrated at 500, 1,000, 2,000, and 3,000 Hz losses of 30, 35, 55, 

and 70 dBs on the right, respectively and 25, 40, 65, and 75 dBs on the left, respectively. 

Dr. Dunfield diagnosed sensorineural hearing loss and opined that appellant’s hearing loss could 

have been caused by her employment-related noise exposure. He noted that since there were no 

audiograms prior to 2012, he could not determine if appellant’s hearing loss predated her federal 

employment and would have to assume that it did not. Utilizing the sixth edition of the A.M.A., 

Guides, Dr. Dunfield calculated that appellant had 35 percent monaural hearing loss in the right 

ear and 39 percent monaural hearing loss in the left ear. He calculated appellant’s binaural hearing 

loss and added 1 percent impairment for tinnitus for a total of 37 percent binaural hearing loss.

By decision dated June 30, 2020, OWCP denied appellant’s claim, finding that the medical 

evidence of record was insufficient to establish causal relationship between appellant’s diagnosed 

binaural hearing loss and the accepted factors of her federal employment. 

LEGAL PRECEDENT

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA,5that an injury was sustained in the performance of duty as alleged, 

and that any disability or medical condition for which compensation is claimed is causally related 

 

4 Supra note 2.

5 A.D., Docket No. 20-0758 (issued January 11, 2021); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).
5

to the employment injury.6 These are the essential elements of each and every compensation claim, 

regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) a factual statement identifying 

employment factors alleged to have caused or contributed to the presence or occurrence of the 

disease or condition; (2) medical evidence establishing the presence or existence of the disease or 

condition for which compensation is claimed; and (3) medical evidence establishing that the 

diagnosed condition is causally related to the identified employment factors.8

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.9 The opinion of the physician must be based on a complete factual 

and medical background of the claimant, must be one of reasonable medical certainty, and must 

be supported by medical rationale explaining the nature of the relationship between the diagnosed 

condition and the specific employment factors identified by the claimant.10

ANALYSIS

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

In a July 17, 2019 report, Dr. Dunfield, the second opinion examiner, diagnosed binaural 

sensorineural hearing loss and opined that appellant’s hearing loss could have been caused by her 

employment-related noise exposure. He noted that appellant stated that she had audiograms 

performed from 1999 through the present. Dr. Dunfield reported that since he did not receive

audiograms prior to 2012, he could not determine if appellant’s hearing loss was causally related 

to her employment-related noise exposure.

In a development letter dated November 15, 2017, OWCP requested that the employing 

establishment address the accuracy of appellant’s allegations and describe her workplace exposure 

to hazardous noise. It specifically requested that the employing establishment provide detailed 

information, including all medical examinations pertaining to hearing or ear problems, including 

pre-employment examination and all audiograms.

 

6 V.P., Docket No. 20-0415 (issued July 30, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 

312 (1988).

7 20 C.F.R. § 10.115; S.A., Docket No. 20-0458 (issued July 23, 2020); L.M., Docket No. 13-1402 (issued 

February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

8 See B.H., Docket No. 18-1693 (issued July 20, 2020); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J. 

Woodhams, 41 ECAB 345, 352 (1989).

9 L.S., Docket No. 19-1769 (issued July 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10 B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. Moore, 52 ECAB 132 (2000).
6

In a December 5, 2017 e-mail, J.S., appellant’s supervisor, indicated that appellant’s 

audiograms and medical examinations pertaining to hearing or ear problems would have to be 

provided by the employing establishment’s hearing program manager’s office.

In a December 5, 2017 statement, appellant asserted that she requested her medical hearing 

examinations from the employing establishment, but could only get records from 2012 to 2017.

The employing establishment did not provide the audiograms or medical records from its 

hearing conservation program prior to 2012.

The Board finds that OWCP must further develop the factual aspect of this record. The 

record reflects that appellant participated in the employing establishment’s hearing conservation 

program. However, audiological and other medical records from that program were not provided 

by the employing establishment. Dr. Dunfield specifically noted that audiograms were not 

provided prior to 2012 and that he, therefore, could not determine if appellant’s hearing loss was 

causally related to her employment-related noise exposure. Accordingly, OWCP must develop 

this factual aspect of the case before a full and fair determination can be made regarding causal

relationship.11

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

appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in 

the development of the evidence, particularly when such evidence is of the character normally 

obtained from the employing establishment or other government source.12 OWCP has an 

obligation to see that justice is done.13 On remand it shall obtain all relevant records from the 

employing establishment’s hearing conservation program and provide the records it obtains to

Dr. Dunfield for a supplemental report.14 Following this and other such further development 

deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

 

11 See D.O., Docket No. 20-0006 (issued September 9, 2020); J.V., Docket No. 17-0973 (issued July 19, 2018).

12 See D.O., id., R.A., Docket No. 17-1030 (issued April 16, 2018); Walter A. Fundinger, Jr., 37 ECAB 200, 204 

(1985); Michael Gallo, 29 ECAB 159, 161 (1978).

13 See A.J., Docket No. 18-0905 (issued December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983); 

Gertrude E. Evans, 26 ECAB 195 (1974).

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.4, 2.800.7, 

2.800.8, and 2.800.10 (June 2011).
7

ORDER

IT IS HEREBY ORDERED THAT the June 30, 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: May 12, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board