United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.G., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION

Euless, TX, Employer

__________________________________________

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Docket No. 23-0119

Issued: November 13, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 2, 2022 appellant filed a timely appeal from an October 27, 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 ratable hearing loss, 

warranting a schedule award.

FACTUAL HISTORY

On December 2, 2021 appellant, then a 53-year-old customs and border protection agent, 

filed an occupational disease claim (Form CA-2) alleging that he developed hearing loss and 

1

5 U.S.C. § 8101 et seq.
2

ringing in his ears due to factors of hisfederal employment, including high levels of noise exposure 

at work for the past 25 years. He noted that he first became aware of his conditions on May 1, 

2012 and realized their relation to his federal employment on November 30, 2021. Appellant did 

not stop work.

In a December 6, 2021 development letter, OWCP informed appellant of the deficiencies 

of his claim. It advised him of the type of evidence necessary to establish his claim and provided 

a factual 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 regarding appellant’s occupational noise exposure. It afforded 

both parties 30 days to submit the requested evidence. 

Thereafter, appellant submittedan undated response detailinghis employment history from 

1987 to 2021 and noting that he had no ear or hearing issues prior to his federal employment and 

no hobbies that involved loud noises. He described his work duties, which included exposure to 

tractor trailers and commercial buses at vehicle crossings and noise exposure from quarterly 

firearms qualification. Appellant advised that he had difficulty understanding what conversations. 

He asserted that he often experienced ringing of the ears and vertigo, and that coworkers and 

relatives told him that he speaks very loudly. 

On January 7, 2022 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and the medical record, to Dr. Paul W. Loeffler, a Board-certified otolaryngologist 

serving as second opinion physician, regarding the nature and extent of appellant’s hearing loss, 

and whether there was causal relationship between his diagnosed hearing loss and his accepted 

employment exposure. 

In a February 8, 2022 report, Dr. Loeffler 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 medical history or condition related to appellant’s hearing loss. Audiometric 

testing obtained on February 8, 2022 at the frequencies of 500, 1,000, 2,000, and 3,000 hertz (Hz)

revealed losses at 25, 15, 20, and 25 decibels (dBs) for the right ear, respectively, and 25, 20, 20, 

and 30 dBs for the left ear, respectively. Dr. Loeffler diagnosed bilateral sensorineural hearing 

loss and bilateral tinnitus and noted that the workplace exposure described was of sufficient 

intensity and duration to have caused the hearing loss. He opined that appellant’s sensorineural 

hearing loss and tinnitus were due to noise exposure encountered in his federal employment. 

Dr. Loeffler found that appellant had two percent impairment due to mild tinnitus. He determined 

that appellant had reached maximum medical improvement (MMI) on February 8, 2022 and 

recommended hearing aids.

On February 15, 2022 OWCP accepted the claim for bilateral sensorineural hearing loss 

and bilateral tinnitus. 

OWCP referred the medical record and SOAF to Dr. Jeffrey Israel, a Board-certified 

otolaryngologistserving as a district medical adviser (DMA), to determine the extent of appellant’s 

hearing loss and permanent impairment due to his employment-related noise exposure. 
3

In a February 25, 2022 report, Dr. Israel reviewed Dr. Loeffler’s examination report and 

concurred that the February 8, 2022 audiogram revealed normal to low normal hearing up to 2,000 

Hz in the left ear and 3,000 Hz in the right ear, followed by a drop at the 3,000-4,000 Hz level to 

30 dB on the left and a drop at the 4,000-6,000 Hz level to 30 dB on the right. He opined that 

those patterns were suggestive of sensorineural hearing loss due at least in part to noise -induced 

work-related acoustic trauma. Dr. Israel 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. He averaged appellant’s right ear hearing levels of 25, 15, 20, and 25

dBs at 500, 1,000, 2,000, and 3,000 Hz, respectively, by adding the hearing loss at those fourlevels 

then dividing the sum by four, which equaled 21.25. After subtracting the 25 dB fence, Dr. Israel 

multiplied the remaining zero balance by 1.5 to calculate zero percent right ear monaural hearing 

loss. He then averaged appellant’s left ear hearing levels of 25, 20, 20, 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 23.75. After subtracting the 25 dB fence, Dr. Israel multiplied the 

remaining zero balance by 1.5 to calculate zero percent left ear monaural hearing loss. He 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. Dr. Israel noted that there 

was no applicable award for tinnitus as there was zero percent binaural hearing impairment. He

determined that appellant had reached MMI on February 8, 2022 the date of the most recent 

audiogram and Dr. Loeffler’s examination. Dr. Israel recommended yearly audiograms, use of 

noise protection, and hearing aids for hearing loss and tinnitus masking. 

By decision dated October 27, 2022, OWCP denied appellant’s schedule award claim, 

finding that the medical evidence of record was insufficient to establish that his accepted hearing 

loss condition was severe enough to be considered ratable. It noted that he was entitled to hearing 

aids if recommended by his physician.

LEGAL PRECEDENT

The schedule award provisions of FECA3 and its implementing federal 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 of loss of a member shall be 

determined. 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.5 The sixth 

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

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).
4

edition of the A.M.A., Guides

6 has been adopted by OWCP for evaluating schedule losses and the 

Board has concurred in such adoption.

7

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

A.M.A., Guides.

8

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

frequency are averaged.9 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.

10

 The remaining amount is multiplied by a factor of 1.5 to arrive at 

the percentage of monaural hearing loss.

11

 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 hearing loss.

12

 The Board has concurred in OWCP’s adoption of this standard for 

evaluating hearing loss.

13

Regarding tinnitus, the A.M.A., Guides provides that tinnitus is not a disease, but rather a 

symptom that may be the result of disease or injury.

14

 If tinnitus interferes with activities of daily 

living, including sleep, reading, and other tasks requiring concentration, up to five percent may be 

added to a measurable binaural hearing impairment.15

ANALYSIS

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

loss, warranting a schedule award.

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

evaluate his hearing loss. In his February 8, 2022 report, Dr. Loefflerreviewed audiometric testing 

at the frequencies of 500, 1,000, 2,000, and 3,000 Hz, revealing losses at 25, 15, 20, and 25 dBs 

for the right ear, respectively, and 25, 20, 20, and 30 dBs for the left ear, respectively. He 

diagnosed bilateral sensorineural hearing loss and bilateral tinnitus and opined that appellant’s 

6

Supra note 2.

7 V.M., Docket No. 18-1800 (issued April 23, 2019); see J.W., Docket No. 17-1339 (issued August 21, 2018).

8

Supra note 2.

9

Id. at 250.

10 Id.; C.D., Docket No. 18-0251 (issued August 1, 2018).

11 Id.

12 Id.

13 M.S., Docket No. 22-0458 (issued May 3, 2023); S.M., Docket No. 21-0648 (issued May 4, 2023); H.M., Docket 

No. 21-0378 (issued August 23, 2021); V.M., supra note 7.

14 See A.M.A., Guides 249.

15 Id.
5

conditions were due to noise exposure encountered in his federal employment. Dr. Loeffler found 

two percent permanent impairment due to tinnitus. 

On February 25, 2022 Dr. Israel, serving as DMA, reviewed Dr. Loeffler’s report and 

determined that appellant had zero percent monaural hearing loss in each ear. He noted that a 

tinnitus award could not be given as there was no ratable binaural hearing loss. Dr. Israel averaged 

appellant’s right ear hearing levels of 25, 15, 20, and 25 dBs at 500, 1,000, 2,000, and 3,000 Hz, 

respectively, by adding the hearing loss at those levels then dividing the sum by four, which 

equaled 21.25. He then averaged appellant’s left ear hearing levels of 25, 20, 20, and 30 dBs at 

500, 1,000, 2,000, and 3,000 Hz, respectively, by adding the hearing loss at those levels then 

dividing the sum by four, which equaled 23.75. 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. 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.

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

hearing loss warranting a schedule award. Although appellant has accepted employment-related 

hearing loss, it is insufficiently severe to be ratable for schedule award purposes.

16

The Board has held that, in the absence of ratable hearing loss, a schedule award for tinnitus 

is not allowable pursuant to the A.M.A., Guides.

17

 Accordingly, as appellant does not have ratable 

hearing loss, the Board finds that he is not entitled to a schedule award for tinnitus.

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 permanent impairment.

CONCLUSION

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

loss, warranting a schedule award.

16 S.L., Docket No. 23-0241 (issued May 17, 2023); J.R.,Docket No. 21-0909 (issued January 14, 2022); see W.T., 

Docket No. 17-1723 (issued March 20, 2018); E.D., Docket No. 11-0174 (issued July 26, 2011).

17 Id.
6

ORDER

IT IS HEREBY ORDERED THAT the October 27, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 13, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board