United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.R., Appellant

and

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD & 

INTERMEDIATE MAINTENANCE FACILITY, 

Bremerton, WA, Employer

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Docket No. 22-0051

Issued: August 9, 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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 13, 2021 appellant filed a timely appeal from a July 13, 2021 merit decision 

and a September 2, 2021 nonmerit 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.

ISSUES

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

hearing loss for schedule award purposes; and (2) whether OWCP properly denied appellant’s 

request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On December 10, 2020 appellant, then a 59-year-old nuclear mechanical inspector

supervisor, filed an occupational disease claim (Form CA-2) alleging that he developed bilateral 

hearing loss due to factors of his federal employment, including exposure to occupational noise

inspecting nuclear work. He noted that he first became aware of his condition and realized it was 

caused or aggravated by his federal employment on May 5, 2018. Appellant did not stop work.

In support of his claim, appellant submitted hearing conservation data, including a 

reference audiogram dated November 28, 2018 and an audiogram dated October 15, 2020. He 

also submitted an audiometric evaluation dated December 10, 2020.

In a development letter dated December 17, 2020, OWCP informed appellant of the 

deficiencies of his claim and advised him of the type of factual and medical evidence necessary to 

establish his claim and attached a questionnaire for his completion. In a separate development 

letter of even date, it requested that the employing establishment provide additional information 

regarding his exposure to noise due to factors of his federal employment, including comments 

from a knowledgeable supervisor regarding the accuracy of his statements. OWCP afforded both

parties 30 days to respond.

OWCP thereafter received a November 28, 2018 report by Jason Willard Danford, Au.D,

an audiologist, who indicated that appellant reported intermittent ringing in his ears, which he 

attributed to exposure to machinery and power tools at shipyards. Dr. Danford conducted 

audiometric testing, which revealed mild sloping-to-severe sensorineural hearing loss from 3,000 

to 8,000 Hertz (Hz) in both ears.

Appellant, in a December 23, 2020 response to OWCP’s questionnaire, indicated that he 

worked for the employing establishment as a pipefitter from 1989 to 1994 and as a utility repairer 

and operator from 1995 to 2004. Throughout that time, he was exposed to noise from pneumatic 

grinders, chop saws, hammers, ship motors engines, alarms, and large pumps. From 2004 and 

ongoing, appellant worked as a nuclear mechanical inspector and was exposed to noise from 

pneumatic grinders, hammers, ship alarms, motors, engines, and facility ventilation. In connection 

with each position, he utilized foam earplugs. In a separate response of even date, appellant

asserted that he did not engage in any hobbies outside work that involved loud noise.

In a letter dated February 18, 2021, the employing establishment outlined the results of its 

investigation into appellant’s claim, including a summary of his work history since February 1, 

1990 and the available exposure level readings for equipment and processes, which could have 

been present in his work environment.

OWCP also received appellant’s application for federal employment dated November 23, 

1998, hearing conservation data and audiograms dated between October 19, 1990 through 

October 17, 2020, and job descriptions for pipefitter and nuclear mechanical inspector supervisor.

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

(SOAF) and the medical record, to Dr. Edward Trevye, a Board-certified otolaryngologist,serving 
3

as a second opinion physician, regarding the nature, extent, and causal relationship of appellant’s

hearing loss.

In an April 29, 2021 report, Dr. Trevye reviewed the SOAF, history of injury, and the 

medical evidence of record. He indicated that there was no significant variation from the SOAF 

and no other relevant history or condition related to appellant’s hearing loss. Testing at the 

frequencies of 500, 1,000, 2,000, and 3,000 Hz revealed losses at 5, 10, 15, and 30 decibels (dBs) 

for the right ear, respectively, and 0, 10, 10, and 30 dBs for the left ear, respectively. Dr. Trevye

noted that the ears, tympanic membranes, and canals were normal. He diagnosed bilateral 

sensorineural hearing loss, which was “more probably than not” due to noise encountered in 

appellant’s federal employment. Dr. Trevye noted that the exposures described by appellant were 

of sufficient intensity and duration to have caused his hearing loss. 

In a letter date May 21, 2021, OWCP referred the medical record and SOAF to Dr. Jeffrey 

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 his employmentrelated noise exposure.

By decision dated June 14, 2021, OWCP accepted appellant’s claim for bilateral 

sensorineural hearing loss.

OWCP thereafter received a May 22, 2021 report by Dr. Israel, who reviewedDr. Trevye’s

examination report and concurred that the April 29, 2021 audiogram revealed normal hearing 

through 2,000 Hz bilaterally, followed by a drop at the 6,000 Hz level to 95 dB on the left and 85 

dB on the right. Dr. Israel opined that those patterns were suggestive of sensorineural hearing loss 

due at least in part to noise-induced work-related acoustic trauma. He 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,

2

(A.M.A., Guides) 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. Dr. Israel averaged appellant’s right ear 

hearing levels of 5, 10, 15, and 30 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 by 4, which equaled 15. 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 0, 10, 10, and 

30 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 by four, which equaled 12.5. After subtracting the 25 dB fence, he

multiplied the remaining five 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. He

opined that he concurred with Dr. Trevye’s calculations. Dr. Israel recommended yearly 

audiograms, use of noise protection, and hearing aids for hearing loss and tinnitus masking. He

also determined that appellant had reached maximum medical improvement (MMI) on April 29, 

2021, the date of the most recent audiogram and Dr. Trevye’s examination.

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

On July 2, 2021 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

By decision dated July 13, 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.

On August 17, 2021 appellant requested reconsideration of OWCP’s July 13, 2021 

decision.

By decision dated September 2, 2021, OWCP denied reconsideration of the merits of 

appellant’s claim.

LEGAL PRECEDENT -- ISSUE 1

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. 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., Guides5 has been adopted by OWCP for evaluating schedule losses and the Board has 

concurred in such adoption.6

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

A.M.A., Guides.

7

 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each 

frequency are averaged.8 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.9 The remaining amount is multiplied by a factor of 1.5 to arrive at the 

percentage of monaural hearing loss.10 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 binaural 

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Supra note 2.

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

7

Supra note 2.

8

Id. at 250.

9

Id.; C.D., Docket No. 18-0251 (issued August1, 2018).

10 Id.
5

hearing loss.11 The Board has concurred in OWCP’s adoption of this standard for evaluating 

hearing loss.12

ANALYSIS -- ISSUE 1

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

loss for schedule award purposes.

OWCP properly referred appellant to Dr. Trevye for a second opinion examination to 

evaluate his hearing loss. In his April 29, 2021 report, Dr. Trevye diagnosed bilateral 

sensorineural hearing loss. He opined that the sensorineural hearing loss was more probably than 

not due to noise exposure encountered in appellant’s federal employment.

In its June 14, 2021 decision, OWCP accepted the claim for bilateral sensorineural hearing 

loss and informed appellant that it had forwarded his case to a DMA to assess his percentage of 

permanent employment-related hearing loss.

The DMA, Dr. Jeffrey Israel, in a report dated May 22, 2021, reviewedDr. Trevye’sreport 

and determined that appellant had zero percent monaural hearing loss in each ear. He related that 

testing at the frequencies of 500, 1,000, 2,000, and 3,000 Hz revealed losses at 5, 10, 15, and 30 

decibels (dBs) for the right ear, respectively, and 0, 10, 10, and 30 dBs for the left ear, respectively. 

Dr. Israel noted that the ears, tympanic membranes, and canals were normal. The decibel losses 

for the right ear were totaled at 60 and divided by 4 to obtain an average hearing loss of 15. The 

decibel losses for the left ear were totaled at 50 and divided by 4 to obtain an average hearing loss 

of 12.5. After subtracting the 25-decibel fence, both the right and left ear losses were reduced to 

zero. When multiplied by 1.5, the resulting monaural hearing loss in each ear was zero percent. 

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

permanent impairment of his hearing warranting a schedule award. Although he has accepted 

employment-related hearing loss, it is not sufficiently severe to be ratable for schedule award 

purposes.13

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 impairment.

11 Id.

12 H.M., Docket No. 21-0378 (issued August23, 2021); V.M., supra note 6. 

13 Id.; W.T., Docket No. 17-1723 (issued March20, 2018); E.D., Docket No. 11-0174 (issued July 26, 2011).
6

LEGAL PRECEDENT -- ISSUE 2

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against compensation at any time on his own motion or on application.14

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a 

specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; 

or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 15

A request for reconsideration must also be received by OWCP within one year of the date 

of OWCP’s decision for which review is sought.16 If OWCP chooses to grant reconsideration, it 

reopens and reviews the case on its merits.17 If the request is timely but fails to meet at least one 

of the requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.18

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim, pursuant to 5 U.S.C. § 8128(a).

Appellant did not show that OWCP erroneously applied or interpreted a specific point of 

law and did not advance a relevant legal argument not previously considered by OWCP. 

Therefore, it properly determined that his request did not warrant a review of the merits of the 

claim based on the first and second requirements of section 10.606(b)(3). 19

Appellant also did not submit any relevant and pertinent new evidence. Therefore, he is 

not entitled to a merit review based on the third requirement under 20 C.F.R. § 10.606(b)(3).20 

Consequently, OWCP properly determined that appellant’s request did not warrant a review of the 

merits of the claim based on the third requirement of section 10.606(b)(3).

As appellant has not met any of the regulatory requirements under 20 C.F.R. 

§ 10.606(b)(3), pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 

14 5 U.S.C. § 8128(a).

15 20 C.F.R. § 10.606(b)(3).

16 Id. at § 10.607(a).

17 Id. at § 10.608(a).

18 Id. at § 10.608(b).

19 See M.C., Docket No. 18-1278 (issued March 7, 2019); see also S.M., Docket No. 17-1899 (issued 

August 3, 2018).

20 See T.W., Docket No. 18-0821 (issued January 13, 2020).
7

CONCLUSION

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

loss for schedule award purposes. The Board further finds that OWCP properly denied appellant’s 

request for reconsideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the September 2 and July 13, 2021 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: August 9, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board