United States Department of Labor

Employees’ Compensation Appeals Board

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R.C., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Brownsville, TX, Employer

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Docket No. 23-0334

Issued: July 19, 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

JANICE B. ASKIN, Judge

JURISDICTION

On January 5, 2023 appellant filed a timely appeal from a November 18, 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 June 29, 2022 appellant, then a 44-year-old customs and border protection officer, 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 exposure to large air conditioning (AC) units running at an 

immigration holding facility, which he worked in for three years. He noted that he first became 

aware of his condition and realized its relation to his federal employment on June 14, 2022. 

OWCP received evidence regarding appellant’s exposure to hazardous noise. In a narrative 

statement, appellant reiterated his history of injury and described his exposure to loud noise at 

work from 2003-2022. He detailed his duties of inspecting passenger buses with large engines, as 

well as large machinery, private aircraft, and trains. For the preceding three years, appellant noted

his exposure to loud noise from large AC units and officers having to yell in order to communicate 

with each other due to the noise. In another narrative statement, he further indicated that he did 

not have a previous history of hearing problems or exposure to loud noises through any hobbies. 

The employing establishment submitted a separate statement, indicating his duty locations and 

exposure to noise, as well as a period of exposure and protection provided. 

An unsigned audiometric report dated April 21, 2003 indicated normal hearing results in 

both ears. 

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

(SOAF) and the medical record to Dr. Gregory S. Rowin, an otolaryngologist, serving as second 

opinion physician, regarding the nature and extent of appellant’s hearing loss, and whether there 

was any causal relationship between his diagnosed hearing loss and his accepted employment 

exposure.

OWCP received noise monitoring reports dated July 6, 2004 from the employing 

establishment. The reports indicated that noise exposures at each location were below the eighthour, 85 dbA action level set by the Occupational Safety and Health Administration (OSHA).

In a September 8, 2022 report, Dr. Rowin reviewed the SOAF, appellant’s history of injury, 

and medical evidence of record. Audiometric testing obtained on September 9, 2022 at the 

frequencies of 500, 1,000, 2,000, and 3,000 Hertz (Hz) revealed losses at 20, 20, 5, and 20 decibels 

(dBs) for the right ear, respectively; and 20, 15, 5, and 20 dBs for the left ear, respectively.

Dr. Rowin diagnosed appellant with mild-to-severe sensorineural hearing loss and tinnitus, and 

opined that appellant’s sensorineural hearing loss and tinnitus were due to noise exposure 

encountered in his federal employment.

By decision dated September 20, 2022, OWCP accepted appellant’s claim for binaural

sensorineural hearing loss and noted that the medical evidence of record established that he would 

benefit from hearing aids.

On October 19, 2022 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

On October 28, 2022 OWCP referred the medical record and SOAF to Dr. Jeffrey Israel, a 

Board-certified otolaryngologist serving as an OWCP district medical adviser (DMA), to 

determine the extent of appellant’s hearing loss and permanent impairment due to appellant’s 

employment-related noise exposure. On November 3, 2022 Dr. Israel reviewed Dr. Rowin’s

report and 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 
3

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 

noted that a tinnitus award of one percent could not be given as there was no binaural hearing loss. 

Dr. Israel averaged appellant’s right ear hearing levels of 20, 20, 5, and 20 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 of 65 by 4, which equaled 16.25. After subtracting the 25 dB fence, he multiplied the 

remaining 0 balance by 1.5 for a result of zero percent right monaural loss. For the left ear,

Dr. Israel averaged hearing levels of 20, 15, 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 of 85 by 4 for a 

result of 21.25. After subtracting the 25 dB fence, he multiplied the remaining 0 balance by 1.5 

for a result of zero percent left 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 recommended yearly audiograms, use of 

noise protection, and authorization for hearing aids for hearing loss if appellant was interested. 

Dr. Israel determined that appellant had reached maximum medical improvement (MMI) on 

September 9, 2022, the date of audiometric examination with Dr. Rowin.

By decision dated November 18, 2022, 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.

LEGAL PRECEDENT

The schedule award provisions of FECA3 and its implementing regulations

4 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., Guides

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

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

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Supra note 2.

6

J.S., Docket No. 22-0274 (issued September 13, 2022); J.R.,Docket No. 21-0909 (issued January 14, 2022);

H.M., Docket No. 21-0378 (issued August 23, 2021);V.M.,Docket No. 18-1800 (issued April23, 2019); J.W.,Docket 

No. 17-1339 (issued August 21, 2018).
4

frequency are averaged.

7

 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.

8

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

percentage of monaural hearing loss.

9

 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.

10

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

hearing loss.

11

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. Rowin for a second opinion examination to 

evaluate appellant’s hearing loss. In his September 9, 2022 report, Dr. Rowin reviewed 

audiometric testing at the frequencies of 500, 1,000, 2,000, and 3,000 Hz, revealing losses at 20, 

20, 5, and 20 dBs for the right ear, respectively, and 20, 15, 5, and 20 dBs for the left ear, 

respectively. He diagnosed appellant with mild-to-severe sensorineural hearing loss and tinnitus, 

opining that appellant’s sensorineural hearing loss and tinnitus were due to noise exposure 

encountered in appellant’s federal employment. By decision dated September 20, 2022, OWCP 

accepted appellant’s claim for binaural sensorineural hearing loss and forwarded appellant’s case 

to a DMA to assess his percentage of permanent employment-related hearing loss.

On November 3, 2022 Dr. Israel, the DMA reviewed Dr. Rowin’s report 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 noted that a tinnitus award of one percent could 

not be given as there was no binaural hearing loss. Dr. Israel averaged appellant’s right ear hearing 

levels of 20, 20, 5, and 20 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 of 65 by 4, which equaled 16.25. After 

subtracting the 25 dB fence, he multiplied the remaining 0 balance by 1.5 for a result of zero 

percent right monaural loss. For the left ear, Dr. Israel averaged hearing levels of 20, 15, 20, and 

30 dBs12 at 500, 1,000, 2,000, and 3,000 Hz, respectively, by adding the hearing loss at those four 

levels then dividing the sum of 85 by 4 for a result of 21.25. After subtracting the 25 dB fence, he 

7 A.M.A., Guides 250.

8

Id.

9

Id.

10 Id.

11 V.M., supra note 6.

12 The Board notes that Dr.Israel’s notation of 20 dBs at 2,000 Hz and 30 dBs at 3,000 Hz of the left ear, appears 

to be a typographical error, as the audiologist reported hearing levels for the same ear of 5 dBs at 2,000 Hz and 20 

dBs at 3,000 Hz. This amounts to harmless error, as the hearing impairment calculation still remains at zero percent 

of the left ear.
5

multiplied the remaining 0 balance by 1.5 for a result of zero percent left 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.

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. 13 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.

14

 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.

13 J.S., supra note 6; see W.T.,Docket No. 17-1723 (issued March 20, 2018); E.D.,Docket No. 11-0174 (issued 

July 26, 2011).

14 Id.
6

ORDER

IT IS HEREBY ORDERED THAT the November 18, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 19, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board