United States Department of Labor

Employees’ Compensation Appeals Board

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S.B., Appellant

and

DEPARTMENT OF THE ARMY, RED RIVER 

ARMY DEPOT, Texarkana, TX, Employer

__________________________________________

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Docket No. 22-1346

Issued: June 1, 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

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On September 23, 2022 appellant filed a timely appeal from a September 8, 2022 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 has met his burden of proof to establish binaural hearing 

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

FACTUAL HISTORY

On March 24, 2021 appellant, then a 44-year-old heavy mobile equipment mechanic, 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 shop noise, power tools, and forklifts 

1

5 U.S.C. § 8101 et seq.
2

at the employing establishment. He also reported that he was around bombs and gunfire when he 

worked in Afghanistan. Appellant noted that he first became aware of his condition and first 

realized its relation to his federal employment on October 24, 2019. 

Appellant submitted a notification of personnel action Standard Form 50 dated 

September 21, 2019 and a position description for a heavy mobile equipment mechanic.

In a March 31, 2021 development letter, OWCP informed appellant of the deficiencies of 

his claim. It requested additional factual and medical evidence and provided a questionnaire for 

his completion. In a separate development letter of even date, OWCP requested that the employing 

establishment provide comments from a knowledgeable supervisor regarding the accuracy of 

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

parties 30 days to submit the requested information.

In an April 5, 2021 letter, B.S., a workforce manager at the employing establishment, 

controverted appellant’s claim alleging that noise levels at appellant’s building were well within 

Occupational Safety and Health Administration (OSHA) levels for noise. He included a 

memorandum of noise level data, which indicated that the noise level at Building 345 was 87.4 to 

75.3 decibels in February 2020. B.S. also noted that the employing establishment required the use 

of hearing protection at all times.

OWCP received examination notes dated October 24 and November 20, 2019 by Loren 

Roberts, a hearing conservation technician, who indicated that appellant was evaluated for a 

follow-up audiogram following a failed hearing screening.

In a completed questionnaire dated April 8, 2021, appellant indicated that he had never 

previously filed a claim for workers’ compensation for hearing loss, and that he was still being 

exposed to hazardous noise at work. He reported that beginning in 2007, he worked as a mechanic 

at the employing establishment and was exposed to shop noise, power tools, and forklift noise. 

Appellant noted that hearing protection was required when using the drill. He also indicated that 

he was exposed to noise from bombs and gunfire when he worked in Afghanistan.

On August 26, 2021 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), for a second opinion examination with Dr. Charles Hollingsworth, a Board-certified 

otolaryngologist, to determine whether appellant’s work-related noise exposure caused hearing 

loss and, if so, the extent and degree of hearing loss. 2 In a report dated September 21, 2021,

Dr. Hollingsworth indicated that appellant had worked at the employing establishment for 141⁄2 

years and that there were no audiograms from the time of initial employment. He explained that 

he could not compare appellant’s hearing at the time of his initial evaluation with the current 

audiogram. Dr. Hollingsworth diagnosed right moderate low frequency, moderate-to-severe mid 

frequency, and severe high-frequency sensorineural hearing loss. He indicated that he could not 

answer whether appellant’s hearing loss was due to workplace noise exposure at the employing 

establishment. 

2 On September 21, 2014 Thomas D. Burns, an audiologist, performed audiometric testing. 
3

The employing establishment provided an audiogram dated November 17, 2014.

In an October 27, 2021 letter, OWCP requested clarification from Dr. Hollingsworth

regarding whether appellant’s hearing loss was causally related to his workplace noise exposure. 

In a letter dated December 13, 2021, Dr. Hollingsworth indicated that there were no 

audiograms from the time of appellant’s initial employment for him to review. He reported that it 

was improper to assume that appellant entered federal employment with normal hearing, and that 

appellant may have already had established hearing loss before starting work. 

In a letter dated February 11, 2022, OWCP requested that the employing establishment 

provide any audiograms for appellant prior to 2014. 

The employing establishment provided audiograms dated October 24 and 

November 20, 2019.

On February 22, 2022 appellant provided OWCP with a detailed list of his employment 

history. He noted that his hobbies included shooting pool. Appellant explained that he first 

realized that his hearing loss was work related during a hearing test at the employing establishment.

OWCP received a report dated October 24, 2019 by Mr. Roberts who indicated that 

appellant was showing a threshold shift in hearing loss. Mr. Roberts recommended that appellant 

be removed from any area with noise in excess of 75dBA for 14 hours.

In a May 26, 2022 letter, OWCP requested that Dr. Hollingsworth review the updated 

SOAF and additional medical evidence and provide an opinion regarding whether appellant’s 

hearing loss was causally related to his workplace noise exposure.

In an email dated June 6, 2022, the medical scheduler informed OWCP that

Dr. Hollingsworth was no longer accepting workers’ compensation cases and had refused to 

complete a supplemental report.

OWCP subsequently referred appellant, along with an updated SOAF, for a second opinion 

examination with Dr. Paul Donald Whitt, a Board-certified otolaryngologist, to determine whether 

appellant’s work-related noise exposure caused hearing loss and, if so, the extent and degree of 

hearing loss.

In a report dated July 12, 2022, Dr. Whitt noted his review of the SOAF, performed an 

audiological evaluation, and completed OWCP’s evaluation questionnaire. He indicated that 

appellant had a long history of progressive hearing loss. Dr. Whitt reported that appellant had 

noise exposure, but not unprotected noise exposure. On physical examination, he observed normal 

ear canals and tympanic membrane. Dr. Whitt reviewed an audiogram performed that day by 

Monica Gilliam, an audiologist, using an audiometer last calibrated on December 1, 2021, which 

demonstrated at 500, 1,000, 2,000, and 3,000 Hertz (Hz), losses of 60, 60, 55, and 65 decibels 

(dBs) in the right ear, and 55, 55, 55, and 55 dBs in the left ear, respectively. He diagnosed bilateral 

sensorineural hearing loss and indicated that this was “progressive genetic hearing loss rather than 

noise exposure.”
4

In response to OWCP’s questions, Dr. Whitt indicated that appellant had minimal hearing 

loss at the beginning of his employment and noted that appellant’s hearing loss was much worse 

today. He opined that appellant’s exposure at work was not a factor. Dr. Whitt checked a box 

indicating that appellant’s bilateral hearing loss was “Not Due” to workplace noise exposure and 

provided medical rationale of “shape of audio.” He also reported that appellant had moderate 

tinnitus with minimal effect on activities of daily living, and checked a box indicating it was also 

“Not Due” to workplace noise exposure. 

By decision dated September 8, 2022, OWCP denied appellant’s occupational disease 

claim, finding that the medical evidence of record was insufficient to establish that his diagnosed 

binaural hearing loss was causally related to the accepted workplace noise exposure. 

LEGAL PRECEDENT

An employee seeking benefits under FECA3 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,4that 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.5 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.6

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. 7 

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

relationship is rationalized medical opinion evidence.8 The opinion of the physician must be based 

on a complete factual and medical background of the employee, must be one of reasonable medical 

3

Id.

4 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). 

5 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).

6 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). 

7 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).

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

238 (1996).
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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. 9

ANALYSIS

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

Appellant alleged that he developed binaural hearing loss due to noise exposure during his 

federal employment. He noted that he was exposed to hazardous noise from shop noise, power 

tools, and forklifts, and from bombs and gunfire when he worked in Afghanistan. 

In a development letter dated March 31, 2021, OWCP requested that the employing 

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

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

information, including dB level and frequency for each job site, the period of exposure including 

hours per day and days per week, and the type of ear protection provided. Although the employing 

establishment submitted an April 5, 2021 letter challenging appellant’s claim, it did not provide 

the detailed information requested by OWCP. Furthermore, OWCP also requested in a 

February 11, 2022 letter that the employing establishment provide any audiograms prior to 2014

for appellant. The employing establishment, however, did not respond to OWCP’s February 11, 

2022 letter and did not provide audiograms prior to 2014.

Accordingly, the Board finds that OWCP must further develop the factual aspect of this 

record. The record reflects that the information regarding the frequency, duration, and dB level of 

appellant’s exposures to hazardous noise and the degree of appellant’s hearing loss prior to his 

federal employment is incomplete. Moreover, the employing establishment should provide any 

relevant information that is normally in its exclusive control. Accordingly, OWCP must develop 

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

relationship.10

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

is not a disinterested arbiter.11 While the claimant has the responsibility to establish entitlement 

to compensation, OWCP shares responsibility in the development of the evidence. It has the 

obligation to see that justice is done.12 Accordingly, once OWCP undertakes development of the 

record, it must do a complete job in procuring medical evidence that will resolve the relevant issues 

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

345, 352 (1989).

10 See S.N., Docket No. 21-0258 (issued October 19, 2021); see also J.V., Docket No. 17-0973 (issued 

July 19, 2018).

11 N.L., Docket No. 19-1592 (issued March 12, 2020); M.T., Docket No. 19-0373 (issued August 22, 2019); B.A., 

Docket No. 17-1360 (issued January 10, 2018); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

12 C.L., Docket No. 20-1631 (issued December 8, 2021); L.B., Docket No. 19-0432 (issued July 23, 2019); 

Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).
6

in the case.13 The Board finds, therefore, that the case must be remanded to OWCP. On remand, 

OWCP should obtain noise exposure data and reference audiograms prior to 2014 from the 

employing establishment and provide this information to Dr. Whitt for a supplemental report. 

Following this and other such development deemed necessary, OWCP shall issue a de novo 

decision in the case.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the September 8, 2022 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action 

consistent with this decision of the Board.

Issued: June 1, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

13 T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).