United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.C., Appellant

and

DEPARTMENT OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION, 

Barbourville, KY, Employer

__________________________________________

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Docket No. 23-0933

Issued: December 4, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On June 26, 2023 appellant filed a timely appeal from a January 17, 2023 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.

ISSUE

The issue is whether appellant met his burden of proof to establish that he sustained hearing 

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

FACTUAL HISTORY

On August 24, 2021 appellant, then a 62-year-old mine safety and health inspector, filed 

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

1

5 U.S.C. § 8101 et seq.
2

of his federal employment, including loud noise exposure while inspecting mining equipment in 

confined areas in underground and surface coal mines for over 14 years. He noted that he first 

became aware of his condition and its relationship to his federal employment on March 31, 2017. 

Appellant did not stop work.

In a development letter dated August 31, 2021, OWCP informed appellant that the 

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

medical evidence needed and provided a questionnaire for his 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 noise exposure. It afforded both parties 30 days to submit the 

necessary evidence.

OWCP received a list of average decibel levels of various mining equipment including

bulldozers, front end loaders, draglines, haulage trucks, shovels, pan scrapers, graders, surface 

drills, excavators, rail car shake outs, longwalls, continuous miners, load-haul dumps, bridge 

conveyors, roof bolters, jackleg drills, underground drills, ram cars, scalers, scoops, locomotive,

and mantrips. 

OWCP received appellant’s employing establishment audiograms dated from August 1, 

2006 to April 13, 2021. 

In a supplemental statement, appellant reiterated that, as a health and safety mine inspector, 

he had performed inspections of coal preparation plants, loading facilities, underground mines, 

and surface mines, and was exposed to noise from all types of mining equipment. He denied any 

previous history of hearing problems and indicated that he received hearing aids on 

March 31, 2017. 

OWCP received a hearing loss checklist from appellant’s supervisor, W.C., who noted that 

he had reviewed appellant’s statements, and they were true and factual. W.C. noted that appellant 

worked at locations where there was mining equipment/machinery operating and explosives 

blasting, that decibel and frequency levels varied from shift to shift, and that appellant was 

provided with various types of ear plugs and ear caps.

In a letter dated September 13, 2021, the employing establishment verified that appellant 

was exposed to hazardous noise at surface and underground mining facilities throughout the United 

States. It noted that all jobs listed by him were established as having exposure to hazardous noise 

levels and that he was exposed to excessive noise approximately 40 hours per week, 8 to 10 hours 

per day, for 4 to 5 days per week.

On September 24, 2021 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and the medical record, to Dr. William J. Brown, II, an audiologist, for audiometric 

testing, and to Dr. Andrew S. Mickler, a Board-certified otolaryngologist, for a second opinion 

evaluation.

In an October 22, 2021 report, Dr. Brown conducted an audiometric test, which revealed 

losses of 20, 30, 45, and 30 decibels (dBs) on the right and 20, 30, 40 and 35 dBs on the left at 

500, 1,000, 2,000, and 3,000 Hertz (Hz), respectively.
3

In an October 22, 2021 narrative report, Dr. Mickler reviewed appellant’s medical record 

and the SOAF, performed a physical examination, and completed OWCP’s evaluation 

questionnaire. He compared the current audiogram with the audiogram from 2006 and found a 

worsening of hearing loss in both ears. In response to the question of whether the workplace 8-

hour time-weighted average sound level (TWA) was sufficient to have caused the loss in question,

Dr. Mickler responded: “No. [TWA] was below action level per OSHA.” He diagnosed bilateral 

sensorineural hearing loss and opined that it was not due to noise exposure in the workplace.

By decision dated November 2, 2021, OWCP denied appellant’s occupational disease 

claim, finding that the medical evidence of record was insufficient to establish hearing loss 

causally related to the accepted factors of his federal employment.

On October 21, 2022 appellant requested reconsideration and provided additional 

evidence. 

In an October 4, 2022 report, Dr. Keith J. Alexander, a Board-certified otolaryngologist, 

noted that appellant was seen for follow up of mid and high-frequency sensorineural hearing loss. 

He related that appellant had been a mining inspector for the past 16 years and prior thereto had 

worked in coal mines. Dr. Alexander noted that appellant was exposed to loud noise throughout 

his employment and as mine inspector from 2006 to 2022. He reviewed appellant’s 2006 

audiogram and noted that it revealed hearing loss in each ear of around 30 to 45 dBs at 2,000 Hz

and that his hearing loss in the frequencies around 2,000 Hz remained stable. Dr. Alexander 

further found that appellant’s hearing in the frequencies above 3,000 Hz had dropped from 25 dB 

in each ear in 2006 down to 50 to 60 dB currently. He opined that the drop from 25 dB to 50/60 

dB was likely the result of noise exposure and that appellant’s exposure to noise occurred during 

his work as a coal mine inspector. Dr. Alexander diagnosed bilateral sensorineural hearing loss

and bilateral tinnitus, secondary to sensorineural hearing loss. 

Appellant also submitted chart notes from May 13, 2015 to May 12, 2017 from audiology 

appointments, and a September 26, 2022 audiogram. 

By decision dated January 17, 2023, OWCP denied modification of the November 2, 2021 

decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA2 has the burden of proof to establish the 

essential elements of his or her claim, including 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 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 

2

Id.

3

See S.B., Docket No. 22-1346 (issued June1, 2023); D.D., Docket No. 19-1715 (issued December 3, 2020);S.B., 

Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
4

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

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

disease claim, a claimant must submit: (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) rationalized medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the claimant.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 employee, 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 specific employment factors identified by the employee. 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 provide 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 

conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper 

factual background, must be given special weight.10

4 Y.G., Docket No. 20-0688 (issued November 13, 2020); 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 C.H., Docket No. 19-1781 (issued November 13, 2020); 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 T.M., Docket No. 20-0712 (issued November 10, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 

59 ECAB 382 (2008).

7 A.M., Docket No. 18-1748 (issued April24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 

238 (1996).

8 M.V., Docket No. 18-0884 (issued December 28, 2018);I.J., 59 ECAB 408 (2008);Victor J. Woodhams, 41 ECAB 

345, 352 (1989).

9

5 U.S.C. § 8123(a);see C.C., Docket No. 20-0151 (issued July 30, 020); M.G.,Docket No. 19-1627 (issued 

April 17, 2020); R.C., Docket No. 12-0437 (issued October 23, 2012).

10 20 C.F.R. § 10.321. See also J.H., Docket No. 22-0981 (issued October 30, 2023); N.D., Docket No. 21-1134 

(issued July 13, 2022); DarleneR. Kennedy, 57 ECAB 414 (2006); GloriaJ. Godfrey, 52 ECAB 486 (2001); James P. 

Roberts, 31 ECAB 1010 (1980).
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ANALYSIS

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

OWCP referred appellant to Dr. Mickler in order to determine whether appellant’s 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 October 22, 2021, Dr. Mickler diagnosed sensorineural 

hearing loss and opined that it was not due to noise exposure encountered in the workplace. 

However, by report dated October 4, 2022, Dr. Alexander noted that his comparison of the 

2006 baseline audiogram with appellant’s current audiogram revealed that appellant’s hearing loss 

had remained stable in the 2,000 Hz range, but in the frequencies above 3,000 Hz his hearing had 

dropped from 25 dB to 50/60 dB. He opined that the drop in appellant’s hearing was likely the 

result of noise exposure. Dr. Alexander also explained that appellant’s noise exposure occurred 

during his work as a mine inspector.

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

Board finds that the opinions of Drs. Mickler and Alexander are of equal weight and that a conflict 

exists with regard to the cause of appellant’s binaural hearing loss.

Therefore, in accordance with section 8123(a) of FECA, the case must be remanded for 

referral to an impartial medical specialist for resolution of the conflict in the medical opinion 

evidence regarding the cause of appellant’s 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.

11 M.G., Docket No. 19-1627 (issued April 17, 2020); Darlene R. Kennedy, id.; James P. Roberts, id.

12 Id.
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ORDER

IT IS HEREBY ORDERED THAT the January 17, 2023 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: December 4, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board