United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.C., Appellant

and

DEPARTMENT OF LABOR, MINE SAFETY &

HEALTH ADMINISTRATION, Marquette, MI, 

Employer

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Docket No. 20-0151

Issued: July 30, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On November 8, 2019 appellant filed a timely appeal from a September 26, 2019 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the September 26, 2019 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 binaural hearing 

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

FACTUAL HISTORY

On November 16, 2018 appellant, then a 47-year-old inspector, filed an occupational 

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

federal employment. He noted that he first became aware of his hearing loss on June 13, 2016 and 

first realized its relation to his federal employment on October 31, 2018. 

In an audiometric examination dated June 13, 2016, Lisa Ward, a licensed practical nurse 

and certified occupational hearing conservationist, recorded audiometric findings at the frequency 

levels of 500, 1,000, 2,000, and 3,000 hertz (Hz) of losses for the right ear of 30, 5, 5, and 30

decibels (dBs) and for the left ear of 10, 0, 0, 0, and 35 dBs. Appellant also submitted an unsigned

listing of the results of audiometric tests from 2014 through 2018. This report noted that on 

March 19, 2014 he demonstrated dB losses at 500, 1,000, 2,000, and 3,000 Hz of 5, 0, 0, 20 for 

the right ear and 5, 5, 0, 20 for the left ear; while on September 6, 2018 he demonstrated dB losses 

at those same frequencies of 5, 5, 0, 30 for the right ear and 5, 5, 0, 30 for the left ear.

In a letter dated September 19, 2018, the employing establishment informed appellant that 

the results of his last audiometric test performed on September 7, 2016 indicated that his right ear 

had sustained a standard threshold shift in hearing ability. It explained its responsibility to inform 

him of the hearing loss and to provide him with effective hearing conservation methods such as 

personal protective equipment. 

In a December 6, 2018 development letter, OWCP advised appellant of the type of 

evidence needed to establish his hearing loss claim and provided a questionnaire for his 

completion. It afforded him 30 days to submit the requested information. In a separate letter on 

that, same date, OWCP requested that the employing establishment address the accuracy of 

appellant’s allegations and describe his workplace exposure to hazardous noise. 

The employing establishment subsequently provided appellant’s job description and 

employment history since his start date on April 20, 2014. It listed several sites at which he could 

have possibly been exposed to noise, as well as sources of exposure, including active heavy 

equipment/machinery, generators, screeners, crushers, wash plants, industrial drills and saws, and 

other various plant machinery/equipment. The employing establishment explained that dB and 

frequency levels varied, with sand and gravel operations ranging from 100 to 104 dBs in and 

around generator trailers to 60 to 70 dB in out areas and material transfer points, where inspectors 

spend the majority of their time. At taconite plants, the average dB measurement in and around 

plants ranged from 60 to 90 dBs, whereas in the mining areas they were generally below 80 dBs. 

The employing establishment noted that hearing protection was provided. 

Appellant responded to OWCP’s inquiries by letter dated January 17, 2019. He reviewed 

his employment history as a foreman/loader operator for a private company from April 1995 

through January 2013. Sources of noise in this private position included large offload mobile 
3

mining equipment. Appellant was provided with hearing protection and wore it at all times. 

Beginning March 19, 2014, he worked as an inspector with the employing establishment. Sources 

of noise in this position included large off-road mobile mining equipment, grinding machines, 

screening equipment, and large generators. Appellant wore earplugs and dual hearing protection 

and was exposed to noisy conditions on a daily basis.

OWCP referred appellant for a second opinion evaluation with Dr. Steven J. Vandenberg, 

a Board-certified otolaryngologist, in order to determine whether his work-related noise exposure 

was sufficient to have caused hearing loss, and if so, the extent and degree of appellant’s hearing 

loss. In a report dated March 21, 2019, Dr. Vandenberg noted that a baseline test at the beginning 

of employment on March 19, 2014 demonstrated bilateral moderate high-frequency hearing loss. 

He observed that present findings were very similar to the baseline values with no significant 

change, other than a slight progression at 3,000 Hz. Dr. Vandenberg found that there had not been 

a significant progression of hearing loss during the period of employment. Physical examination

revealed normal ear canals and drums, normal drum motility, and normal results of basic fork tests. 

Dr. Vandenberg observed slight occasional and inconsequential tinnitus. He diagnosed 

sensorineural hearing loss, which was essentially unchanged during the period of employment. 

Dr. Vandenberg also reviewed the results of an audiometric test taken on March 20, 2019 at the 

frequency levels of 500, 1,000, 2,000, and 3,000 Hz, which revealed the following losses: 10, 10, 

10, 35 dBs for the right ear and 15, 5, 10, 45 dBs for the left ear. He opined that appellant’s 

sensorineural hearing loss and tinnitus were not, in part or all, due to noise exposure in appellant’s 

federal civilian employment. Dr. Vandenberg explained that there had been only mild change 

from the baseline in a single frequency. He determined that there was no significant impairment 

and that amplification was optional. Dr. Vandenberg calculated appellant’s monaural and binaural 

hearing impairment at zero percent, noting a date of maximum medical improvement of 

March 20, 2019. He recommended hearing aids. 

By decision dated April 9, 2019, OWCP denied appellant’s claim, finding that the medical 

evidence of record was insufficient to establish causal relationship between his diagnosed hearing 

loss and his work-related noise exposure. It based its finding upon the March 21, 2019 report of

Dr. Vandenberg. 

On April 15, 2019 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. The hearing was held on August 12, 2019. 

Appellant submitted a September 24, 2019 report from Dr. David J. Heichel, a Boardcertified otolaryngologist, noting that he had evaluated appellant on September 19, 2019 and found 

that he may be considered a candidate for hearing aids. He further submitted results of audiometric 

testing dated September 19, 2019. In an accompanying report of even date, Dr. Heichel diagnosed 

bilateral sensorineural hearing loss, noting that appellant’s audiogram demonstrated the condition 

beginning at 3,000 Hz with a very prominent loss which he described as a “classic noise (or 

occupational) notch loss.” He opined that it would be very reasonable to deduce that this loss was 

more likely than not related to occupational exposure. 

By decision dated September 26, 2019, OWCP’s hearing representative affirmed the 

April 9, 2019 decision denying appellant’s hearing loss claim. 
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LEGAL PRECEDENT

An employee seeking benefits under FECA 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,3that 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 

to the employment injury.4 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.5

In an occupational disease claim, appellant’s burden requires submission of 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 employment factors 

identified by the employee.6

Causal relationship is a medical issue, and the medical evidence required to establish causal 

relationship is rationalized medical opinion evidence.7 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.8

Section 8123(a) provides that, if there is a disagreement between the physician making the 

examination for the United States and the physician of the employee, the Secretary shall appoint a 

third physician who shall make an examination.9 The implementing regulations state that, if a 

conflict exists between the medical opinion of the employee’s physician and the medical opinion 

of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third 

physician to make an examination. This is called a referee examination and OWCP will select a 

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case. In situations where there exist opposing medical reports of virtually equal weight and 

rationale and the case is referred to an impartial medical specialist for the purpose of resolving the 

 

3 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

5 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).

6 S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

7 A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388 (2008).

8 M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008).

9 5 U.S.C. § 8123(a); M.G., Docket No. 19-1627 (issued April 17, 2020); R.C., Docket No. 12-0437 (issued 

October 23, 2012).
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conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper 

factual background, must be given special weight.10

ANALYSIS

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

OWCP referred appellant to Dr. Vandenberg in order to determine whether his workrelated noise exposure was sufficient to have caused hearing loss, and if so, the extent and degree 

of that hearing loss. In his report dated March 21, 2019, Dr. Vandenberg opined that appellant’s 

sensorineural hearing loss and tinnitus were not, in part or all, due to noise exposure in his federal 

civilian employment, explaining that according to his audiogram on March 20, 2019 there had 

been only mild change from the baseline in a single frequency. He observed that present findings 

were very similar to the baseline values with no significant change, other than a slight progression 

at 3,000 Hz. Dr. Vandenberg concluded that there had not been a significant progression of 

hearing loss during the period of federal employment. 

However, by report dated September 24, 2019, Dr. Heichel, appellant’s treating physician 

diagnosed bilateral sensorineural hearing loss, and noted that appellant’s audiogram established a 

very prominent loss, which he explained was a classic noise (or occupational) notch loss. He 

opined that it would be very reasonable to deduce that appellant’s hearing loss was more likely 

than not related to occupational exposure based upon this specifically identified finding. 

For a conflict to arise, the opposing physician’s opinions must be of equal weight.11 The 

Board finds that the opinions of Drs. Vandenberg and Heichel are of equal weight regarding their 

opinion regarding the cause of appellant’s binaural hearing loss.

Therefore, the case must be remanded for referral to an impartial medical examiner in 

accordance with section 8123(a) of FECA for resolution of this conflict in the medical opinion 

evidence regarding the cause of appellant’s alleged hearing loss.

12

 After this and other such further 

development as OWCP deems necessary, it shall issue a de novo decision.

CONCLUSION

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

 

10 20 C.F.R. § 10.321.

11 M.G., supra note 9; Darlene R. Kennedy, 57 ECAB 414 (2006).

12 Id.
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ORDER

IT IS HEREBY ORDERED THAT the September 26, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and this case is remanded for further proceedings 

consistent with this decision of the Board. 

Issued: July 30, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board